September 25, 2024
In a family offense proceeding, the fact that some of the alleged conduct occurred years earlier is not dispositive, as “the issue is the imminence of the danger and not the age of the threat” However, the frequency and age of the alleged conduct is relevant in assessing whether there is “a pattern of imminent and ongoing danger to the” petitioner
In Matter of Boltz v Geraci, --- N.Y.S.3d ----, 2024 WL 4229688, 2024 N.Y. Slip Op. 04500 (3d Dept., 2024) the Appellate Division affirmed an order of the Family Court which dismissed petitioner’s application for an order of protection. It held, inter alia, that in the context of a family offense petition, the fact that some of the alleged conduct occurred years earlier is not dispositive, as “the issue is the imminence of the danger and not the age of the threat” (Matter of Pamela N. v. Neil N., 93 A.D.3d 1107, 1109 n., [3d Dept. 2012] Nevertheless, the frequency and age of the alleged conduct remains relevant in assessing whether there is “a pattern of imminent and ongoing danger to the” petitioner that would warrant relief. Petitioner’s husband described a March 2022 telephone call in which respondent complained to him about petitioner contacting respondent’s place of employment, warning that he had “better keep [petitioner] in line or else there will be serious consequences.” Petitioner testified as to how learning of that conversation, particularly after she was served with respondent’s application for an order of protection against her in April 2022, made her afraid because of respondent’s prior abusive and harassing conduct. Petitioner described, in particular, how respondent had subjected her to various forms of physical and mental abuse prior to their 2004 divorce and how he had threatened to crush her skull during a 2014 telephone call. Petitioner acknowledged that she had not seen respondent, and did not believe that she had spoken to him on the telephone, since 2014. Respondent also testified, confirming petitioner’s testimony that he had not seen her in person or talked to her since 2014. He denied her claim that he had threatened her during a 2014 telephone call. Respondent explained how the March 2022 telephone conversation with petitioner’s husband did not involve threats of violence and that he meant legal action as opposed to any improper threat. Family Court credited respondent’s account of limited interactions between him and petitioner and a March 2022 telephone call in which he did not intend to threaten petitioner with violence or otherwise do anything improper. Family Court accurately observed that the prior conduct alleged by petitioner was scattered over decades and had ceased by 2014, after which time the parties had minimal or no contact, and concluded that she had simply failed to “establish a cognizable pattern of behavior on the part of [respondent] sufficient to make the more remote allegations relevant” to the 2022 telephone call or otherwise suggest that she faced an immediate and ongoing threat from respondent that would warrant relief (Matter of Opray v. Fitzharris, 84 A.D.3d at 1093, 924 N.Y.S.2d 421).
September 18, 2024
Appellate Division, Second Department
In order to give full meaning and effect to the parties’ stipulation and to enable the plaintiff to fulfill his obligations in connection therewith, the stipulation had to be construed to permit the plaintiff to access the former marital residence with a bank appraiser
In Ippolito v Ippolito, 2024 WL 4139238 (2d Dept., 2024) the parties judgment of divorce entered July 2, 2021 incorporated but did not merge a stipulation of settlement entered into by the parties in which provided, inter alia, that the defendant shall have “sole and exclusive occupancy” of the former marital residence until February 1, 2028, that the plaintiff shall have exclusive use and occupancy of the former marital residence thereafter, and that “[n]o later than the termination of [the defendant’s] period of exclusive occupancy, the [plaintiff] will endeavor to remove the [defendant’s] name from the mortgage ... by either paying off said mortgage, refinancing said mortgage, modifying said mortgage, assumption or by sale of the Marital Residence (including by short sale).” Additionally, pursuant to the stipulation, the parties acknowledged that the mortgage had not been paid since in or about January 2018, and the plaintiff “agrees he shall act to prevent any judgment of foreclosure and sale during the [defendant’s] period of exclusive occupancy ... which may include, immediately upon service of process retaining counsel ..., making partial payments, and/or negotiating a settlement with the bank(s).” The plaintiff moved to permit him to access the former marital residence with a bank appraiser for the purpose of conducting an appraisal and for an award of attorneys’ fees. The plaintiff alleged that “[t]he bank requires an appraisal for the purposes of negotiations” and that the defendant’s failure to cooperate with an appraisal interferes with his ability to negotiate with the bank, which is necessary to comply with the terms of the parties’ stipulation. The defendant cross-moved pursuant to 22 NYCRR 130–1.1 for an award of sanctions. Supreme Court denied the plaintiff’s motion and granted the defendant’s cross-motion to the extent of awarding the defendant attorneys’ fees in the sum of $1,202.50. The Appellate Division held that the Supreme Court erred in denying the plaintiff’s motion to permit him to access the former marital residence with a bank appraiser for the purpose of conducting an appraisal. It was not determinative that the stipulation failed to specifically provide for this occurrence. As correctly argued by the plaintiff, construing the stipulation in a manner so as to deny him reasonable access to the former marital residence with a bank appraiser rendered meaningless those provisions of the stipulation that obligated him to endeavor to remove the defendant’s name from the mortgage “by either paying off said mortgage, refinancing said mortgage, modifying said mortgage, assumption or by sale of the Marital Residence (including by short sale),” and to prevent a judgment of foreclosure and sale by, inter alia, negotiating a settlement with the bank. Additionally, the stipulation contemplated that the plaintiff will fulfill these obligations during the defendant’s period of sole and exclusive occupancy. Notably, an action to foreclose the mortgage had been commenced against the parties. An appraisal was required by the plaintiff’s bank to resolve a settlement or to negotiate a discounted payoff. Therefore, in order to give full meaning and effect to the parties’ stipulation and to enable the plaintiff to fulfill his obligations in connection therewith, the stipulation had to be construed to permit the plaintiff to access the former marital residence with a bank appraiser for the purpose of conducting an appraisal.
Appellate Division, Third Department
Family Court is required to craft a visitation schedule that allows a parent frequent and regular access to the child, unless doing so would be inimical to the child’s welfare. Where the court made no such finding here, and instead, improperly delegated the parenting time determination to the father, the error required reversal
In Matter of C.M. v. Z.N., --- N.Y.S.3d ----, 2024 WL 4152111, 2024 N.Y. Slip Op. 04427 (3d Dept., 2024) a custody modification proceeding, in which custody was awarded to the father, the Appellate Division observed that Family Court is required to craft a schedule that allows that parent frequent and regular access to the child, unless it finds that doing so would be inimical to the child’s welfare. The court made no such finding here. Instead, Family Court improperly delegated the parenting time determination to the father, and this error required reversal. In remitting the matter to the Family Court for a new hearing to determine whether parenting time with the mother was appropriate or whether it would be detrimental to the child’s welfare it took the opportunity to remind Family Court that statements made by a child during a Lincoln hearing carry no independent evidentiary value and that such statements must remain confidential to protect children in custody proceedings “from having to openly choose between parents or openly divulging intimate details of their respective parent/child relationships. Information shared by a child during a Lincoln hearing may serve “to corroborate other evidence adduced at a fact-finding hearing or to ascertain a child’s thoughts and feelings regarding the crafting of a custodial arrangement, but such considerations must remain silent to ensure that the child’s right to confidentiality is protected. It pointed out in a footnote that at a Lincoln hearing, Family Court should tell the child that it will keep the information shared by the child confidential, and it should keep that promise by sealing the transcript of the Lincoln hearing. Additionally, the court should refrain from promising the child any particular outcome in the case.
In evaluating whether visitation with a grandparent is in a child’s best interests, the most significant consideration is the nature and quality of the relationship between the grandparent and the child
In Matter of Marilyn Y. v. Carmela --- N.Y.S.3d ----, 2024 WL 4152043, 2024 N.Y. Slip Op. 04425 (3d Dept., 2024) the grandmother commenced a proceeding seeking visitation with the child after the father passed away. Following a fact-finding hearing, Family Court awarded biweekly unsupervised visitation to the grandmother. The Appellate Division concluded that the record provided a sound and substantial basis for Family Court’s determination that it was in the child’s best interests to grant the grandmother visitation rights. It observed that where either parent of a minor child has died, a grandparent of such child has “an absolute right” to apply for visitation (Matter of Emanuel S. v. Joseph E., 78 N.Y.2d 178, 181, 573 N.Y.S.2d 36 [1991]), and the court “may make such directions as the best interest of the child may require” (Domestic Relations Law § 72[1]). In evaluating whether visitation with a grandparent is in a child’s best interests, the most significant consideration is the nature and quality of the relationship between the grandparent and the child. It concluded that the record provided a sound and substantial basis for Family Court’s determination that it was in the child’s best interests to grant the grandmother visitation rights.
Where, as here, a parent seeks to regain custody from a nonparent well established that, unless a finding of extraordinary circumstances was made in a prior order, the parent is not required to prove a change in circumstances as a threshold matter
In Matter of Rebecca S., v. Ashley T., --- N.Y.S.3d ----, 2024 WL 4152133, 2024 N.Y. Slip Op. 04426 (3d Dept.,2024) in December 2019, the aunt filed an ex parte application for temporary custody of the child, which was granted. In September 2020, the parties consented to a order awarding the aunt sole custody of the child and providing the parents with supervised visitation. In March 2022, the mother filed a pro se petition to modify the consent order and regain custody of the child. The aunt opposed and cross-petitioned for an order of sole custody supported by a finding of extraordinary circumstances – relief consented to by the father and supported by the attorney for the child. At the fact-finding hearing, at the close of the mother’s case-in-chief, Family Court granted a motion by the aunt to dismiss the mother’s petition for failure to establish a change in circumstances. The court ultimately granted the aunt’s cross-petition, concluding that she had established both a change in circumstances and extraordinary circumstances and that the best interests of the child lie in an award of sole custody to her, with supervised visitation to the parents. The mother appealed, exclusively arguing that the aunt failed to establish a change in circumstances between entry of the November 2021 order and the filing of her April 2022 cross-petition, and therefore requesting that the November 2021 order be reinstated. The Appellate Division noted that where, as here, a parent seeks to regain custody from a nonparent well established that, unless a finding of extraordinary circumstances was made in a prior order, the parent is not required to prove a change in circumstances as a threshold matter. Here, the consent orders had not included any finding of extraordinary circumstances; the aunt specifically requested that finding be made. The mother therefore bore no obligation to demonstrate a change in circumstances. Nonetheless, the mother had not challenged the dismissal of her petition, and she therefore abandoned any argument with respect to this issue. Moreover, the aunt also did not need to demonstrate a change in circumstances upon her cross-petition. Instead, the aunt bore the burden, with respect to both her cross-petition and in opposing the mother’s petition, to demonstrate extraordinary circumstances. A nonparent seeking to modify an existing order entered on consent does not bear a two-fold burden. Upon appeal, the mother did not challenge Family Court’s extraordinary circumstances finding or its best interests analysis. Although Family Court misunderstood the applicable burden, it found that the mother abandoned any germane challenge to the aunt’s cross-petition.
Although the mother did not take an appeal from the finding of neglect, her timely appeal of the subsequently issued dispositional order brought up for review the issues raised in the fact-finding decision
In Matter of John O, 2024 WL 4152196 (3d Dept., 2024) a neglect proceeding the Appellate Division held that although the mother did not take an appeal from the finding of neglect entered in October 2021, her timely appeal of the subsequently issued dispositional order entered in October 2022 brought up for review the issues raised in the fact-finding decision. The mother was also an aggrieved party because, even though she was not aggrieved by the dispositional portion of the order by virtue of her consent granting the grandparents custody of the youngest child, that did not bar her appeal from the part of the order finding neglect after the fact-finding hearing. Nor did her consent to the dispositional order render her appeal moot, given the potential impact of a neglect finding in future proceedings against her.
September 11, 2024
In an unreported disposition, the Supreme Court awards the wife exclusive occupancy pendente lite of marital bedroom in parties East Hamptons Vacation Home and Equitable Distribution advance of $29,600,000
In Anonymous, v. Anonymous Slip Copy, 2024 WL 4097373 (Table), 2024 N.Y. Slip Op. 51208 (U) Unreported Disposition (Sup. Ct. 2024) the parties were billionaires. The Court entered an order in February 2023, which, inter alia, awarded the Wife exclusive use and occupancy of the parties’ New York City Townhouse, awarded the Husband exclusive use and occupancy of the parties’ Fifth Avenue New York City apartment, and directed the parties to alternate each week the use and occupancy of the parties’ properties located in East Hampton, New York. The Court held that the Husband’s purchase of real property in East Hampton to purposefully interfere with the Wife’s possessor rights and inappropriate misuse of the primary bedroom demonstrated sufficient strife and the establishment of a separate residence to warrant awarding the wife exclusive use and possession of the primary bedroom. It held that DRL § 234 grants this Court a broad and flexible power to make directions about the possession of property during the pendency of this action (see E.R. v. L.S., 74 Misc 3d 1227[A] [Sup Ct, NY Cty 2022] [Chesler, J.]). It rejected the Husband’s argument that the case law on vacation homes rather than marital residences shows that exclusive use of the vacation home is inappropriate; rather, sharing is the correct route. The Court noted in the first instance that this Order is consistent with that line of authority as the residences are still being alternated — just not the primary bedroom. The Court also noted the property had approximately four to five bedrooms in total.
The Court also awarded the Wife $29,600,000.00 as an advance on equitable distribution. It rejected the husband's argument that the Court does not have the authority to award an advance on equitable distribution citing Havell v Islam, 288 AD2d 160, 160 [1st Dept 2001]; see also, Havell v Islam, 273 AD2d 164, 164-165 [1st Dept 2000] (Affirming “[t]he motion court’s pretrial distribution of the proceeds of the sale of the marital residence [. . .]”]). ; See Havell, 734 NYS2d at 842.; Simon M. Lorne v Ludmila Peresvetova Lorne, NYLJ, June 5, 2023, at 3, col 4 [1st Dept 2023] [” [T]he trial court properly awarded the wife a credit for what was effectively an advance on equitable distribution”]; Mallary v Mallary, 8 AD3d 20, 20-21 [1st Dept 2004]; Feldman v Feldman, 280 AD2d 276 [1st Dept 2001]; Balkin v Balkin, 43 AD3d 967 [2d Dept 2007]; see generally, Sykes v Sykes, 43 Misc 3d 1220[A][Sup Ct, NY Cty 2014][Cooper, J.]). Under the Havell balancing test, this Court noted that the parties’ respective resources were vastly in contrast. The Husband had access to immense wealth which he solely controls although much of it is marital property. The Wife only had access to funds made available to her by the Husband and a $40,000.00 monthly support payment. That the requested sum was de minimis to the billionaire estate at-bar. It would represent 0.1 — 3.6% of the marital estate. The award did not prejudice the Husband’s ultimate equitable distribution award as it was admitted during the oral argument by both parties’ counsel that the Wife would be entitled to far more than the sum and the award was subject to reallocation after trial.
September 4, 2024
Appellate Division, Second Department
Matter remitted for a new equitable distribution determination where court failed to adequately articulate how it determined the defendant’s distributive share in the marital business; failed to calculate the value of the defendant’s interest in the marital business, or the value of the plaintiff’s interest in the marital residence, and failed to adequately articulate the basis for its equitable distribution of those assets.
In Albano v Albano, --- N.Y.S.3d ----, 2024 WL 3959128, 2024 N.Y. Slip Op. 04298 (2d Dept.,2024) the parties were married in 1982 and had three adult children, all of whom were emancipated. During the marriage, the plaintiff founded Albano A/C & Mechanical Service Corp., a company that performs heating, ventilation, and air conditioning services, repairs, and installations. In November 2016, the plaintiff commenced this action for a divorce. Following a nonjury trial, the Supreme Court valued the marital business at $600,000 and the marital residence at $550,000 for purposes of equitable distribution, and equitably distributed those assets by awarding the plaintiff sole ownership of the marital business and awarding the defendant sole ownership of the marital residence. The remaining assets, including, among other things, bank accounts and a condominium located in Florida, were distributed equally. The Appellate Division held that contrary to the plaintiff’s contention, the Supreme Court providently exercised its discretion in imputing income to him of $221,000 per year and the court providently exercised its discretion in imputing income of only $35,000 per year to the defendant. It also held that the Supreme Court providently exercised its discretion in determining, based upon its credibility findings and guided by a report prepared by a court-appointed forensic expert, that the marital business should be valued at the sum of $600,000. However, the court failed to adequately articulate how it determined the defendant’s distributive share in the marital business (see Domestic Relations Law § 236[B][5][a]). The court failed to calculate the value of the defendant’s interest in the marital business, or the value of the plaintiff’s interest in the marital residence and failed to adequately articulate the basis for its equitable distribution of those assets. Under the particular circumstances, it remitted the matter to the Supreme Court for a new determination on the allocation of the marital business and the marital residence in accordance therewith.
A finding of parental interference or alienation only constitutes one fact, albeit an important one, in determining the best interests of the child
In Matter of Haase v. Jones, --- N.Y.S.3d ----, 2024 WL 3957911, 2024 N.Y. Slip Op. 04319 (2d Dept.,2024) the Appellate Division held that the Family Court did not err in awarding the mother sole legal and residential custody of the child. “Parental alienation of a child from the other parent, including willful interference with his or her parental access rights, is an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending party is unfit to act as custodial parent”. Here, the father refused to permit the mother to have parental access to the child for approximately one year, from March 2020 until the court intervened in March 2021. The father’s purported concerns relating to the COVID–19 pandemic did not justify his decision to unilaterally prevent the mother and the child from having in-person contact with one another for approximately one year. The father’s actions therefore raised a strong inference that he was unfit to act as the custodial parent. Nonetheless, “a finding of parental interference or alienation” only constitutes “one fact, albeit an important one, in determining the best interests of the child”. It held that this matter therefore cannot be decided solely based upon the father’s interference with the mother’s parental rights, and other factors must be considered.
Appellate Division, Third Department
Where the court relied upon its assessment of an undiagnosed mental condition in continuing the mother’s supervised parenting time, the failure to resolve that issue without the benefit of a mental valuation rendered its absence an abuse of discretion.
In Matter of Carol Q., v. Charlie R., --- N.Y.S.3d ----, 2024 WL 3975480, 2024 N.Y. Slip Op. 04351 (3d Dept.,2024) the Appellate Division affirmed an order which allowed the father to relocate to Florida with the child and awarded the mother supervised parenting time. However, it remitted the matter for fact-finding (as to whether it is necessary that the mother’s parenting time remain supervised, and that any determination be made with the benefit of the mother first undergoing a mental health examination) noting that the imposition of the supervisory requirement created a significant impediment. Two Justices dissented. It pointed out that the prior instances of the mother failing to return the child after parenting time perhaps warranted the condition, however, the record was woefully inadequate with respect to the mother’s purported mental health conditions and whether there would be a detriment to the child’s safety, a necessary basis for requiring supervision. Family Court acknowledged that the mother was undiagnosed, yet still expressly permitted her to request unsupervised parenting time if she obtained a mental health evaluation and followed through with any treatment recommendations. This supervisory condition created a significant restriction on the mother’s ability to exercise her parenting time, particularly in light of the father’s relocation, and unfairly placed the burden on the mother to obtain a diagnosis and treatment without any guidance or assistance. It held that in order to thoroughly resolve that concern, the Family Court should have directed that such an evaluation occur (see Family Ct Act § 251) or at the very least directed the mother’s assigned counsel to facilitate such an evaluation, taking into account the financial burden of doing so. Although the decision to do so is subject to Family Courts’ discretion because the court relied upon its assessment of an undiagnosed mental condition in continuing the supervised parenting time condition, the failure to resolve that issue without the benefit of an evaluation rendered its absence an abuse of that discretion.
Appellate Division, Fourth Department
It was not error for the Supreme Court to calculate the mother’s income based on her actual rate of compensation for the job she obtained during the pendency of the divorce where she was receiving higher rates of compensation at the time of trial
In Doores v Doores, --- N.Y.S.3d ----, 229 A.D.3d 1138, 2024 WL 3287230, 2024 N.Y. Slip Op. 03638 (4th Dept., 2024) the Appellate Division affirmed a judgment of divorce that, among other things, equitably distributed the parties’ assets and debts, declined to make an award to the defendant for maintenance, and made awards to the defendant for child support and attorney’s fees. The Appellate Division, inter alia, rejected the defendant’s contention that the court erred in calculating her income based on her actual rate of compensation for the job she obtained during the pendency of the divorce. The parties submitted a joint stipulation of undisputed facts, which reflected that the defendant had been employed in a full-time capacity earning certain hourly wages since approximately seven months before trial. Contrary to the defendant’s contention, since she was receiving higher rates of compensation at the time of trial than she had received before, the court was not required to determine her income based on previous tax returns or W-2s.
Father not denied due process by Family Court’s required consideration of orders of protection issued against him evidence outside the record
In Matter of Hudson v Carter, --- N.Y.S.3d ----, 229 A.D.3d 1097, 2024 WL 3287528, 2024 N.Y. Slip Op. 03615 (4th Dept., 2024) the father appealed an order that denied his petition seeking to modify the parties’ prior order of custody. The Appellate Division held, inter alia, that he was not denied due process by the Family Court’s consideration of evidence outside the record, specifically orders of protection issued against him. Pursuant to Family Court Act § 651 (e) (3) (ii), the court is required to conduct a review of “reports of the statewide computerized registry of orders of protection.”
August 28, 2024
The court erred in failing to award retroactive maintenance where the plaintiff’s application for maintenance was made upon commencement of this action. A party’s maintenance and child support obligations commence and are retroactive to, the date the applications for maintenance and child support were first made.
In Diliberto v Diliberto, --- N.Y.S.3d ----, 2024 WL 3882234, 2024 N.Y. Slip Op. 04244 (2d Dept., 2024) the parties were married in March 2000 and had two children. In March 2012, they entered into a postnuptial agreement, which was thereafter amended. On June 29, 2012, the plaintiff commenced the action for a divorce. After a nonjury trial, the Supreme Court, inter alia, (1) awarded the plaintiff maintenance of $2,000 per month for four years, (2) failed to award the plaintiff retroactive maintenance, (3) directed the defendant to pay basic child support of $3,162.50 per month and 69% of the extracurricular activities, add-on expenses, and unreimbursed medical expenses for the parties’ children, and (5) awarded the plaintiff attorneys’ fees of $75,000.
The Appellate Division held that the court did not improvidently exercise its discretion in imputing only $175,000 of annual income to the defendant and $45,000 of annual income to the plaintiff. Among other reasons, the plaintiff, who, after a May 2017 motor vehicle accident, took the New York State bar exam and participated in trial proceedings in the court’s presence, including by offering testimony, failed to demonstrate through expert testimony or otherwise that any accident-related medical condition from which she suffered rendered her unable to earn income of $45,000 or more annually, whether as a law school graduate or otherwise. The plaintiff entered the marriage as a certified ophthalmic technician and with a degree in business administration. Although she did not work outside the home for most of the marriage, which lasted approximately 12 years before the commencement of the action, she earned a law degree in 2015. Under the circumstances of this case, the Supreme Court providently exercised its discretion in awarding the plaintiff the sum of $2,000 per month in maintenance for four years. The court nonetheless erred in failing to award retroactive maintenance in the same monthly sum. “A party’s maintenance and child support obligations commence and are retroactive to, the date the applications for maintenance and child support were first made. The plaintiff’s application for maintenance was made upon commencement of this action. It remitted the matter to the Supreme Court, for a determination as to the amount of maintenance arrears from June 29, 2012, affording the defendant appropriate credits, if any.
The Appellate Division held that under the circumstances of this case, the Supreme Court should have directed the defendant to pay the plaintiff’s health insurance costs during the period the defendant was obligated to pay maintenance, unless and until the plaintiff became eligible for coverage through employment during that period (see Domestic Relations Law § 236[B][8][a]). It remitted the matter to the Supreme Court, as to what, if any, amounts are owed by the defendant to the plaintiff on account of retroactive health insurance..
The Appellate Division noted that for purposes of calculating child support in divorce actions commenced before January 24, 2016, courts must deduct from the income of the payor spouse the amount of maintenance that he or she has paid or is required to pay, but should not include maintenance payments received by the payee spouse when calculating his or her income except in circumstances inapplicable here. In determining the defendant’s income for child support purposes, the Supreme Court correctly deducted from the defendant’s income the maintenance he was required to pay, but incorrectly included the maintenance payments received by the plaintiff to her income. It remitted the matter to the Supreme Court, for a new determination of the defendant’s basic child support obligations and the parties’ pro rata shares of the children’s extracurricular activities, add-on expenses, and unreimbursed medical expenses consistent therewith and a recalculation of the applicable amounts due, including any arrears owed.
It was error for the Family Court to condition any future therapeutic, supervised, and/or unsupervised parental access between the mother and the child upon the mother’s participation in psychotherapy and upon the determination of the father and a therapist. Family Court improperly granted the father’s application for an award of counsel fees without holding a hearing or without a stipulation between the parties waiving a hearing.
In Matter of Mackay v. Bencal, --- N.Y.S.3d ----, 2024 WL 3882306, 2024 N.Y. Slip Op. 04266 (2d Dept., 2024) the parties were the unmarried parents of one child, who was born in 2015. After the parties ended their relationship the mother and the child moved out of the house they had been living in with the father. In an order dated May 17, 2023, the court, among other things, determined that the mother had alienated the child from the father and granted the father’s petition for sole legal and residential custody of the child. The custody order also directed the mother to “engage in individual therapy with a psychologist or psychiatrist for the purpose of understanding the needs of the [c]hild to have a relationship with the [f]ather and to recognize, acknowledge and express insight as to how her behaviors have impacted the child and the child’s relationship with her father.” It further directed that once “the [m]other has been engaged in individual therapy with a psychologist or psychiatrist, and she has recognized, acknowledged and expressed insight as to how her behaviors have impacted the child and the child’s relationship with her father and the [c]hild has returned to her normal loving relationship with her [f]ather,” the mother’s therapist “shall communicate with Dr. [Barbara] Burkhard” that the mother has “accomplished the goals as stated” in the court’s order. Then, “Dr. Barbara Burkhard will communicate with the [f]ather to discuss [i]f it is appropriate to begin therapeutic supervised [parental access].” The court further directed that the mother have no contact with the child pending further order of the court. Finally, the court contemporaneously issued a full stay-away order of protection in favor of the child and against the mother to remain in effect until and including May 17, 2025, subject to the terms of the custody order. The Appellate Divison affirmed the custody determination finding that the admissible evidence provided a sound and substantial basis for the court’s determination that the mother alienated the child from the father. However, it agreed with the mother that the Family Court improperly issued an order of protection against her and that it was error for the Family Court to condition any future therapeutic, supervised, and/or unsupervised parental access between the mother and the child upon the mother’s participation in psychotherapy and upon the determination of the father and Dr. Barbara Burkhard. It also held that the Family Court improperly granted the father’s application for an award of counsel fees without holding a hearing or without a stipulation between the parties waiving a hearing (see Potvin v. Potvin, 193 A.D.3d 995, 147 N.Y.S.3d 584).
Family Court
The Court found that the ICPC does not apply to a final order of custody made pursuant to Article Six of the Family Court Act after a consolidated custody and dispositional hearing on an Article Ten petition
In Matter of D.A. v. L.A., --- N.Y.S.3d ----, 2024 WL 3944960, 2024 N.Y. Slip Op. 24225
(Fam Ct., 2024), a neglect and custody case, the Attorney for the Child filed an order to show cause seeking the release of D.A. to his maternal grandparents, L.A. and J.A., in Indiana. ACS, petitioner in the neglect case, opposed the application arguing that an ICPC (Interstate Compact on the Placement of Children) was required. The maternal grandmother filed a petition for custody of D.A. on March 13, 2024. The Court found that the ICPC was not applicable here. In reaching this conclusion, the court noted that the ICPC is clearly not applicable to custody proceedings where there is no pending child protective proceeding. It pointed out that the First Department has also noted, albeit in dicta, that the ICPC does not apply to a final order of custody made pursuant to Article Six of the Family Court Act after a consolidated custody and dispositional hearing on an Article Ten petition (Matter of Louis N., 98 AD3d 918 [1st Dept 2012]). In Matter of D.L. v S.B., 39 NY3d 81 [2022], the Court of Appeals made clear that the ICPC applies only to foster care and adoptive placements, even where a child protective proceeding is ongoing. It settled what had been a split in authority between the First and Second Departments as to whether the ICPC applies to out-of-state non-custodial parents whose children are in the care of ACS pursuant to a court order in an ongoing child protective proceeding. The Court of Appeals found that the ICPC applied only to foster parents and adoptive resources, and that the ICPC therefore did not apply to non-custodial parents. It pointed out that while the Court did not expressly make its ruling applicable to other categories of relatives, it appears that the court’s holding is also applicable to any parent-custodial or non-custodial, respondent or nonrespondent, and, more generally, to any non-foster care/adoptive placement out of state. “Stated simply, this holding should be applicable to any Family Court Article Six or Article Ten out-of-state custody or guardianship or direct placement issued at any stage of a proceeding” (citing Gary Solomon & Merril Sobie, New York Family Court Practice § 2.98 [NY Prac Series Jan 2024 update]).”
August 21, 2024
Appellate Division, Second Department
In a Neglect proceeding, although the child has been returned to the mother’s care, her appeal was not academic because the child’s removal created a permanent and significant stigma. In determining a Family Court Act § 1027 temporary removal application the court must weigh, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal.
In Matter of Brucyn W, --- N.Y.S.3d ----, 2024 WL 3801652, 2024 N.Y. Slip Op. 04207 (2d Dept.,2024) the petitioner commenced a neglect proceeding pursuant to Family Court Act article 10 against the parents of the subject child and made an application pursuant to Family Court Act § 1027 to remove the child from the custody of the mother and place the child in the custody of the petitioner pending the outcome of the proceeding. After a hearing, the Family Court granted the application and placed the child in the custody of the petitioner pending the outcome of the neglect proceeding. The Appellate Division affirmed finding that the determination had a sound and substantial basis in the record. Although was undisputed that the child had been returned to the mother’s care, the mother’s appeal was not academic because the child’s removal created a permanent and significant stigma. It noted that once a child protective petition has been filed, Family Court Act § 1027(a)(iii) authorizes the court to conduct a hearing to determine whether the child’s interests require protection, including whether the child should be removed from his or her parent. Following such a hearing, temporary removal is authorized only where the court finds it necessary “to avoid imminent risk to the child’s life or health” (Nicholson v. Scoppetta, 3 N.Y.3d 357, 376, 787 N.Y.S.2d 196, 820 N.E.2d 840; see Family Ct Act § 1027[b][i]). In determining a temporary removal application, the court must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal, and it must balance that risk against the harm removal might bring, and determine which course is in the child’s best interests. Since the court has the advantage of viewing the witnesses and assessing their character and credibility, its determination in this regard should not be disturbed unless it lacks a sound and substantial basis in the record.
Appellate Division, Fourth Department
Although the petitioner bears the burden of proving child abuse by a preponderance of evidence the statute authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur and, once the petitioner has established a prima facie case, the burden of going forward shifts to the respondents to rebut the evidence of parental culpability.
In Matter of Kevin V. --- N.Y.S.3d ----, 2024 WL 3287532, 2024 N.Y. Slip Op. 03653(4th Dept., 2024) the Appellate Division affirmed on order which found that respondents abused the subject child. It observed that, as relevant here, the Family Court Act defines an abused child as a child less than 18 years old whose parent or other person legally responsible for [the child’s] care inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ” (Family Ct Act § 1012 [e] [i]). Section 1046 (a) (ii) “provides that a prima facie case of child abuse may be established by evidence (1) of an injury to a child which would ordinarily not occur absent an act or omission of respondents, and (2) that respondents were the caretakers of the child at the time the injury occurred” (Matter of Philip M., 82 N.Y.2d 238, 243 (1993)). Although the petitioner bears the burden of proving child abuse by “a preponderance of evidence” (§ 1046 [b] [i]), the statute “authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur” and, therefore, once the petitioner has established a prima facie case, the burden of going forward shifts to the respondents to rebut the evidence of parental culpability. It found that the petitioner established that the child suffered multiple injuries that would ordinarily not occur absent an act or omission of respondents. When the child was almost six months old, he was diagnosed with acute on chronic subdural hematoma, ruptured bridging veins, bulging fontanel, retinal hemorrhages, and bruising on the back. Petitioner presented the unrebutted testimony of the attending physician and the child abuse specialist pediatrician who examined the child at the pediatric emergency department and reviewed the child’s medical records, each of whom concluded that the child sustained non-accidental, inflicted trauma not consistent with routine activities of daily living, self-inflicted injury, or accidental injury. Additionally, the child abuse specialist pediatrician opined that the child had suffered multiple traumas rather than only one. Petitioner established that respondents were the caretakers of the child at the time the injuries occurred. Petitioner’s inability to pinpoint the time and date of each injury and link it to an individual respondent was not fatal to the establishment created by section 1046 (a) (ii)] extends to all of a child’s caregivers, especially when they are few and well defined, as in this case. Petitioner established that respondents ‘shared responsibility for the child’s care’ during the time period in which the injuries were sustained and the ‘presumption of culpability extended to all three of them. The mother failed to rebut the presumption of culpability.
August 14, 2024
In weighing a child’s expressed custody preference, the court must consider not only the potential for influence having been exerted on him or her. This is particularly true where there is evidence that the child’s feelings were fostered by the custodial parent’s hostility towards the noncustodial parent.
In Matter of Kerry D. v. Deena D., --- N.Y.S.3d ----, 2024 WL 3682535, 2024 N.Y. Slip Op. 04138 (2d Dept.,2024) the Appellate Division affirmed an order which awarded parental access to Deena D. It observed that the presumption that parental access is in the child’s best interests “may be overcome upon a showing, by a preponderance of the evidence, that [it] would be harmful to the child’s welfare or not in the child’s best interests. While the express wishes of the child are not controlling, they are entitled to great weight, particularly where the child’s age and maturity would make his or her input particularly meaningful. In weighing a child’s expressed custody preference, the court must consider not only the age and maturity of the child, but also the potential for influence having been exerted on him or her. This is particularly true where there is evidence that the child’s feelings were fostered by the custodial parent’s hostility towards the noncustodial parent. It found that the court correctly concluded that Deena D. and the attorney for the child failed, by a preponderance of the evidence, to rebut the presumption in favor of parental access Notably, the court, as the factfinder, found that Deena D. interfered with Kerry D.’s relationship with the child, “precluding the relationship from blossoming into a deeper parent-child bond.” Relatedly, the Family Court concluded that the child’s wishes appeared as though they were influenced, at least to some degree, by Deena D., and the court’s finding in that regard was supported by the record.
On motion for pendente lite maintenance, support, and counsel fees, the Supreme Court could consider, pursuant to CPLR 2001, the retainer agreement and invoices, which were submitted for the first time in her reply papers, as the defendant had an opportunity to respond and to submit papers in sur-reply.
In Zelenka v Hertz, --- N.Y.S.3d ----, 2024 WL 3682504, 2024 N.Y. Slip Op. 04162 (2d Dept.,2024) in June 2021, the plaintiff commenced this action for a divorce. In October 2021, the plaintiff moved, inter alia, for an award of pendente lite maintenance, temporary child support, and interim counsel fees. In an order dated June 8, 2022, the Supreme Court, among other things, granted those branches of the plaintiff’s motion. The Appellate Division affirmed. It noted that a party in a matrimonial action seeking an award of maintenance, child support, or counsel fees, must include in his or her moving papers a sworn statement of net worth (see 22 NYCRR 202.16[k][2]). A copy of a signed retainer agreement must be filed with the court with the statement of net worth (see id. § 1400.3). Furthermore, in seeking an award of attorneys’ fees, an attorney must submit documentation showing the legal services performed, such as time records or a breakdown of services, and time spent on each service. However, CPLR 2001 permits a court, at any stage of an action, to disregard a party’s “mistake, omission, defect or irregularity ... if a substantial right of a party is not prejudiced. It held that contrary to the defendant’s contention, the Supreme Court could consider the plaintiff’s statement of net worth, which was filed simultaneously with, but separate from, the plaintiff’s moving papers, and her retainer agreement and invoices, which were submitted for the first time in her reply papers, as the defendant had an opportunity to respond and to submit papers in sur-reply. Accordingly, the Supreme Court providently exercised its discretion in granting the motion.
Appellate Division, Fourth Department
Fathers application for a judicial subpoena duces tecum for the mother’s mental health records was properly denied where there was no showing that resolution of the custody issue required revelation of the protected material
In Matter of King v Pelkey, --- N.Y.S.3d ----, 2024 WL 3287272, 2024 N.Y. Slip Op. 03654 (4th Dept., 2024) the Appellate Division affirmed an order that, inter alia, awarded petitioner mother sole legal custody of the children. It rejected the father's argument that the Family Court erred in denying his application for a judicial subpoena duces tecum for the mother’s mental health records. It is well settled that a party’s mental health records are subject to discovery where that party has placed his or her mental health at issue). Before requiring disclosure of such records, however, there must be a showing beyond mere conclusory statements that resolution of the custody issue requires revelation of the protected material” (Perry v. Fiumano, 61 A.D.2d 512 [4th Dept. 1978]. The father did not allege in his cross-petition that the mother’s mental health was at issue and failed to demonstrate that the mental health records were material or necessary for the determination of the mother’s petition (see Lauren S. v. Alexander S., 205 A.D.3d 632 (1st Dept. 2022)). The Appellate Division also rejected the contention of the father and the Attorney for the Children that the court erred in admitting hearsay statements of one of the children at the trial on the petitions. It is well settled that there is an exception to the hearsay rule in custody cases involving allegations of abuse and neglect of a child, based on the Legislature’s intent to protect children from abuse and neglect as evidenced in Family Court Act § 1046 (a) (vi) where, as here, the statements are corroborated (Matter of Mateo v. Tuttle, 26 A.D.3d 731 [4th Dept. 2006]). The child’s hearsay statements were corroborated by the testimony of the mother, documentation contained in the child’s school records, and the father’s testimony on cross-examination.
Supreme Court
The husband was found in Criminal Contempt where he violated orders “beyond a reasonable doubt” and the disobedience was shown to be “willful”. ‘Willful’ in the criminal contempt statute is best defined as ‘intentional.’.
In J.N. v. T.N, Slip Copy, 2024 WL 3710792 (Table), 2024 N.Y. Slip Op. 51017(U) an unpublished disposition (Supreme Court, 2014) the wife established, beyond a reasonable doubt, that the husband was guilty of criminal contempt, pursuant to Judiciary Law § 750 (3), for (1) his willful disobedience, on three separate occasions, of orders which prohibit3e him from disclosing the wife’s confidential documents to the public; (2) his willful disobedience of an order which required him to speak to Wife via Our Family Wizard (“OFW”) or a neutral intermediary; and (3) his willful disobedience of orders which directed him to pay third-party professionals for work related to the custody issues in this matter. For each one of the five separate violations, Husband was sentenced, pursuant to Judiciary Law § 751 (1), to 30 days in jail, for a total sentence of 150 days in jail. The Court held that a finding of criminal contempt will be sustained where it is established that a lawful order of the court clearly expressing an unequivocal mandate was in effect; the alleged contemnor had knowledge of the court’s order; and it must also appear with reasonable certainty that the order has been disobeyed (Dep’t of Env’t Prot. of City of New York, 70 NY2d at 240). In addition, the disobedience must be shown to be “willful” (Rubackin, 62 AD3d at 15; El-Dehdan, 114 AD3d at 15-16 [“‘willful’ in the criminal contempt statute, Judiciary Law § 750(A)(3), is best defined as ‘intentional.’”]).
August 7, 2024
Appellate Division, First Department
The wife was obligated to pay 43% of college tuition where the parties' stipulation implicitly recognized that, after subtracting the husband’s 57% share, the wife, as the custodial parent, would pay the remaining 43% of basic child support and enumerated expenses
In Sebrell v Svet, --- N.Y.S.3d ----, 2024 WL 3608022, 2024 N.Y. Slip Op. 04115 (1st Dept.,2024) Article VI, paragraph 2(c) of the parties' 2007 stipulation which was incorporated into the judgment of divorce provided that the husband was responsible for 57% of the costs of the daughter’s college education, including tuition, room and board, and registration fees. The stipulation did not specify who would pay the remaining 43%. It was undisputed that the husband paid 100% of the daughter’s tuition to date. The parties disputed whether the governing stipulation of settlement obligated the wife to pay 43% of their child’s college tuition. The Appellate Division found that the parties added a college tuition obligation to the child support provisions set forth in Article VI of the stipulation, making the husband responsible for payment of 57% of the cost of the daughter’s college education. Article VI also made the husband responsible for 57% of the child’s unreimbursed medical expenses and 57% of the child’s daycare expenses. Viewed as a whole, the parties tailored a child support framework that made the husband, as the noncustodial parent, responsible for approximately 60% of basic child support and college tuition, based on their combined income. The arithmetic corollary to the husband’s 57% obligation is that the wife was obligated to pay the remaining 43%. The stipulation thus implicitly recognized that, after subtracting the husband’s share, the wife, as the custodial parent, would pay the remaining 43% of basic child support and enumerated expenses. This same logic applied to the allocation of the parties’ shares of the child’s college expenses, an obligation of their own making (see Rohrs v. Rohrs, 297 A.D.2d 317, 318, 746 N.Y.S.2d 305 [2d Dept. 2002] [“Supreme Court properly directed the plaintiff to pay a proportionate share of the children’s educational expenses”].
Family Court has the decision-making authority as to the appropriateness of the child’s continued placement in a QRTP at every permanency hearing
In Matter of Malachi B, --- N.Y.S.3d ----, 228 A.D.3d 570, 2024 WL 3187113, 2024 N.Y. Slip Op. 03534 (1st Dept., 2024) the Appellate Division held that the Family Court has the decision-making authority as to the appropriateness of the child’s continued placement in a QRTP at every permanency hearing (see Family Ct Act §§ 1088[b], 1089[d][2][viii]). A contrary reading goes against the express purpose of the Family First Act, which is aimed at reducing the use of institutional group placements for children in foster care by limiting the length of time that they can spend there. The Family First Act, codified in New York State through amendments to the relevant provisions in the Family Court Act and Social Services Law, explicitly seeks to “ensure [] more foster children are placed with families by limiting federal reimbursement to only congregate care placements that are demonstrated to be the most appropriate for a child’s needs, subject to ongoing judicial review” (HR Rep 114–628, 114th Cong, 2d Sess at 28). Furthermore, finding otherwise would lead to an absurd outcome where the court must review evidence about the continued necessity for a QRTP placement at each permanency hearing and simultaneously be powerless to exercise any level of oversight, even if there is proof that the placement is no longer appropriate. That the legislative landscape requires an assessment and court determination whenever a child simply moves between facilities, even if that move does not change the level of care, lends further support to the argument that the Legislature intended for the court to have ongoing oversight and review power in the QRTP context (see Family Ct Act § 1089[d]).
Appellate Division, Second Department
The plaintiff did not commit forgery when, pursuant to the court’s authorization, the plaintiff signed certain documents on behalf of the defendant to effectuate the sale of the marital residence. The defendant was solely responsible for payment of unpaid federal and state income taxes, where the plaintiff filed separate tax returns and paid her tax liability by filing separate income tax returns
In Osuagwu v Osuagwu, --- N.Y.S.3d ----, 2024 WL 3588113, 2024 N.Y. Slip Op. 04078 (2d Dept.,2024) the parties were married in 2012, and had two children. In 2020, the plaintiff commenced this action for a divorce. The judgment of divorce determined that certain premises were marital property subject to equitable distribution, with the parties to share equally in the net proceeds of the sale of those premises, directed that the defendant was solely responsible for payment of unpaid federal and state income taxes, penalties, fines, or interest due, awarded the plaintiff sole legal and physical custody of the parties’ children, and awarded the plaintiff counsel fees of $15,000. The Appellate Division affirmed. It rejected the defendant's contention that the plaintiff committed forgery when, pursuant to the court’s authorization, the plaintiff signed certain documents on behalf of the defendant to effectuate the sale of the marital residence. The plaintiff did not commit forgery as there was no “intent to defraud, deceive, or injure another” (Penal Law §§ 170.05, 170.10), in that the plaintiff was authorized by the court to sign for the defendant (see People v. Briggins, 50 N.Y.2d 302, 306, 428 N.Y.S.2d 909, 406 N.E.2d 766; Pauyo v. Pauyo, 102 A.D.3d 847, 848, 959 N.Y.S.2d 215). It also held, inter alia, that the Supreme Court properly directed that the defendant was solely responsible for payment of unpaid federal and state income taxes, penalties, fines, or interest due. The income tax liability of the parties is subject to equitable distribution (see Lago v. Adrion, 93 A.D.3d 697, 940 N.Y.S.2d 287; Conway v. Conway, 29 A.D.3d 725, 815 N.Y.S.2d 233), but equitable distribution does not necessarily mean equal distribution. Here, the credible evidence established that the plaintiff filed separate tax returns and that the defendant had not filed any tax returns since approximately 2013. Since the plaintiff paid her tax liability by filing separate income tax returns, the court properly directed that the defendant was responsible for any outstanding tax liability and that the defendant would indemnify the plaintiff for any tax liability, penalties, fines, or interest due.
The fact that the children were currently emancipated did not prevent recovery of arrears accrued before emancipation.
In O’Malley v. O’Malley, --- N.Y.S.3d ----, 2024 WL 3588259, 2024 N.Y. Slip Op. 04077 (2d Dept.,2024) the Appellate Division held, inter alia, that the fact that the parties’ children may currently be emancipated did not prevent the defendant from recovering arrears that were due and owing prior to the children’s emancipation (see e.g. Matthews v. Roe, 193 A.D.3d 919, 920, 147 N.Y.S.3d 597; Matter of Barletta v. Faden, 178 A.D.3d 918, 918–919, 112 N.Y.S.3d 535).
Recantation of a party’s initial statement simply creates a credibility issue which the trial court must resolve
In Matter of Kenyana D., --- N.Y.S.3d ----, 2024 WL 3351846, 2024 N.Y. Slip Op. 03746 (2d Dept.,2024) the Family Court found that the father sexually abused the child. The father moved to vacate the order of fact-finding and to reopen the fact-finding hearing, identifying purportedly newly discovered evidence that the child had allegedly recanted her allegations against him. The court granted the father’s motion. After a reopened fact-finding hearing, the court found, in effect, that the father successfully rebutted the petitioner’s prima facie showing of sexual abuse and dismissed the petition. The Appellate Division reversed. It observed that while a child’s out-of-court statements are insufficient to support a finding of abuse unless they are corroborated, a child’s in-court testimony alone is sufficient to support a finding of abuse (see Family Ct Act § 1046[a][vi]). Here, the petitioner established by a preponderance of the evidence that the father sexually abused the child. The child’s testimony during the fact-finding hearing was consistent and detailed, and any minor inconsistencies did not render such testimony unworthy of belief. At the reopened fact-finding hearing, the mother of the father’s other children (the witness) testified that the child recanted her allegations of abuse. The child did not testify at the reopened fact-finding hearing. A child’s recantation of allegations of abuse does not necessarily require the Family Court to accept the later statements as true because it is accepted that such a reaction is common among abused children. (Matter of Dayannie I.M. [Roger I.M.], 138 A.D.3d 747, 749, 29 N.Y.S.3d 61). Rather, recantation of a party’s initial statement simply creates a credibility issue which the trial court must resolve. Even assuming that the witness’s testimony was credible, it was insufficient to warrant dismissal of the petition. The witness testified that she overheard the child telling other children that the child missed the father. After the witness confronted the child, the child told the witness that “she wished that she never lied ... by saying that [the father] did those things.” The witness did not specify what “things” the child was referring to. During cross-examination, the witness testified that immediately after she asked the child “what did she mean by she lied,” the child indicated that “she never said that.” The witness also testified on cross-examination that she had previously confronted the child about the allegations against the father, and the child told the witness that “she was sure ... that these things took place.” The alleged recantation as described by the witness was vague, and the witness’s testimony was insufficient to rebut the finding of abuse. Accordingly, the Family Court’s determination, in effect, that the father rebutted the petitioner’s prima facie showing of sexual abuse was not supported by the record.
Appellate Division, Third Department
A putative father is a necessary party in a paternity proceeding. Although the petition was never formally amended to list Aaron L. as a respondent, the record established that he was treated as a party and fully engaged in the matter in such capacity.
In Matter of Brandon J., v Leola K.,2024 WL 3362594 (3d Dept.,2024) the Appellate Division affirmed an order, in a proceeding that ordered genetic marker testing for the purpose of establishing petitioner’s paternity of a child born to the respondent. Respondent (mother) gave birth to the subject child in May 2021 while she was engaged to Aaron L. Unbeknownst to Aaron L., around the time of conception, the mother was also having sexual relations with the petitioner. Petitioner was incarcerated a few months after the child was born, at which time the mother was residing with Aaron L., the child, an older child they had in common, and Aaron L.’s child from a prior relationship. Nevertheless, the mother maintained contact with the petitioner, permitting him to communicate with the child through several FaceTime calls from jail. She also established a relationship with the petitioner’s mother. When this communication subsequently ceased, the petitioner filed the petition in July 2022 seeking an order of filiation (see Family Ct Act § 542), asserting his belief that he was the child’s biological father. At the initial appearance before the Family Court Judge, the mother reaffirmed her equitable estoppel defense. Aaron L. was not named as a respondent in the petition, but he received notice of the proceeding and was assigned counsel, who was present at the initial appearance and joined in the mother’s equitable estoppel defense. Family Court determined that equitable estoppel should not be applied to prevent a genetic marker test and referred the petition back to the Support Magistrate for further proceedings. The Appellate Divison rejected Aaron L.s initial argument that the Family Court improperly proceeded without joining him as a necessary party. There was no dispute that Aaron L., as a putative father, is a necessary party in this proceeding “for purposes of not only protecting his own rights, but determining the nature and quality of his relationship with the child so as to enable Family Court to render a proper determination as to the child’s best interests”. Although the petition was never formally amended to list Aaron L. as a respondent, the record established that he was treated as a party and fully engaged in the matter in such capacity (see Matter of Michael S. v. Sultana R., 163 A.D.3d 464, 474, 82 N.Y.S.3d 364 [1st Dept. 2018]. The Court noted that the Application of the doctrine of equitable estoppel does not involve the equities between adult participants to the paternity proceedings. Rather, in the context of a paternity proceeding, it is the child’s justifiable reliance on a representation of paternity that is considered and, therefore, the doctrine of equitable estoppel will be applied only where its use furthers the best interests of the subject child”. If the record fails to establish that the child would suffer irreparable loss of status, destruction of his or her family image, or other harm to his or her physical or emotional well-being if this proceeding were permitted to go forward, then equitable estoppel will not apply As the part[ies] asserting equitable estoppel, the mother [and Aaron L.] b[ore] the initial burden of establishing that a parent-child relationship existed between [Aaron L.] and the child” The unrefuted evidence established that Aaron L. was present at the hospital for the child’s birth, signed an acknowledgment of parentage and thereafter began caring for and raising the child as his own. There was testimony that the child referred to Aaron L. as “daddy” and called his mother “grandma.” Although Aaron L. and the mother were no longer in a relationship and lived separately by the time of the fact-finding hearing, he did see the child an average of 3½ to 4 times per week. Aaron L. also had a room for the child at his house and testified that he desired to maintain a relationship with her even if genetic marker testing revealed that the petitioner was the biological father. Given the foregoing, Aaron L. and the mother adequately demonstrated that a parent-child relationship existed between the child and Aaron L., shifting the burden to the petitioner to demonstrate that ordering a genetic marker test would be in the child’s best interests. It concluded that the petitioner met this burden. In this context, a best interests analysis focuses on factors such as the child’s interest in knowing the identity of his or her biological father, whether testing may have a traumatic effect on the child, and whether continued uncertainty may have a negative impact on a parent-child relationship in the absence of testing. The Court found it significant that the child was not quite two years old at the time of the hearing. By that point, the mother and Aaron L. were neither engaged nor living together but did establish an ongoing co-parenting schedule. At the same time, despite his difficulties leading to an extended term of incarceration petitioner demonstrated a basis to claim he is the biological father, provided financial support, and made an effort to establish a relationship with the child, as did his mother.
Supreme Court
In an action for divorce, where it is alleged that individuals are third-party transferees of marital property subject to a distribution dispute, it is appropriate to determine that such individuals are necessary parties to the action and to grant leave to add them as party defendants to the pending divorce action.
In Josephine D., v William A.D., Slip Copy, 2024 WL 3659594 (Table), 2024 N.Y. Slip Op. 51008(U), (Sup. Ct., 2024) an Unreported Disposition, Supreme Court observed that the Husband purportedly transferred 49% of the Business interests to Ms. H. and another 49% to the parties’ (adult) son Billy D., allegedly retaining only 2% for himself. The Husband then purportedly purchased back Billy’s interest, which buy-back Billy was contesting in a separate action. To the extent that there was at least some possibility that Husband and Ms. H. Were able to keep that 49% “shielded” in Ms. H.’s control, but Husband does not receive or retain 49% “back” from Billy, any equitable distribution award in this action might (in that case) be enforceable only against Husband’s then-remaining 2% (in such a case), which would then make the Husband virtually judgment proof in this action without joinder of his parents. It observed that it has been held that in action for divorce, where it is alleged that individuals are third-party transferees of marital property subject to a distribution dispute, it is appropriate to determine that such individuals are necessary parties to the action and to grant leave to add them as party defendants to the pending divorce action. Solomon v. Solomon, 136 AD2d 697 (2nd Dept. 1988); Schmidt v. Schmidt, 99 AD2d 775 (2nd Dept. 1984); See, CPLR §§ 1001, 1003. In this matter, the defendant transferred the marital residence to Ms. H in April 2010. While the defendant asserts that the transfer was made in accordance with his default in paying back a loan his parents made to him, and that the marital residence, purchased before the date of marriage, is his separate property, which plaintiff does not have any interest, those issues have not yet been determined. Therefore, the Court found that the defendant’s parents, P. D. and R. D., were necessary parties to this action, and the plaintiff is granted leave to file and serve a supplemental summons and a second amended verified complaint which adds them as party defendants. M.J.D. v W.O.D., 33 Misc 3d 1213(A) [Sup. Ct., Westchester Cnty 2011]. In Shurka v Shurka, 100 AD3d 566, 566 [1st Dept 2012], the Appellate Division upheld an order allowing the wife to join the Chief Financial Officer of an organization that held the husband’s assets for reasons stated therein, citing CPLR 1001, 1003; Solomon v Solomon, 136 AD2d 697. See also Jackson v. Brinkman, 10 Misc 3d 1068(A) [Sup. Ct., Kings Cnty 2006]. Here, Ms. H. apparently received 49% of Businesses from her Husband that were indisputably marital property, and it is not clear whether there were sufficient other assets to “compensate” for such a transfer. Further, although Ms. H. consented to be bound by the Automatic Orders, it is also not clear whether an enforcement action (if one is ever needed to be brought) regarding any violation of said orders could be brought here without a joinder. Under the circumstances, Ms. H. is a necessary and indispensable party, and the Wife shall be permitted to amend the complaint to join Ms. H. as a necessary party regarding the financial claims ancillary to the divorce action herein.
July 31, 2024
Appellate Division, First Department
An appeal from an intermediate or final order in a case involving abuse or neglect may be taken as of right. The former foster mother lacked standing to seek visitation. However, she did not seek visitation. Family Court continued the pre-existing order of supervised visitation.
In Matter of AL.C., --- N.Y.S.3d ----, 2024 WL 3363006, 2024 N.Y. Slip Op. 03799 (1st Dept.,2024) the Appellate Division affirmed an order of the Family Court which continued the pre-existing order of supervised visitation with the former foster mother. The Court rejected the argument raised by the attorney for the children that the appeal should be dismissed because the permanency hearing order on appeal was a nonfinal order. Under the Family Court Act, the Appellate Division Court has jurisdiction to hear this appeal because “[a]n appeal from an intermediate or final order in a case involving abuse or neglect may be taken as of right” (see Family Court Act § 1112[a]; see also Matter of Christy C. [Roberto C.], 77 A.D.3d 563, 563, 909 N.Y.S.2d 351 [1st Dept. 2010]]).
The majority agreed with ACS that the former foster mother lacked standing to seek visitation, and was not entitled to the same “solicitude” as a parent in determining a visitation plan in the order. However, the former foster mother did not seek visitation. Family Court continued the pre-existing order of supervised visitation with the former foster mother because the court determined that, contrary to ACS’s arguments, and based on the evidence presented at the hearing, doing so was in the children’s best interests and would advance the goal of finalizing the children’s placement for adoption (Family Court Act § 1089[d]). The dissent argued that the Family Court may only direct visitation with certain persons in a permanency hearing order, citing and relying on Domestic Relations Law §§ 70, 71, and 72 and Family Court Act §§ 1030 and 1081. The majority held that those statutes were not applicable here. Domestic Relations Law § 70 sets forth the procedure for a parent to seek the return of a child wrongfully detained by another parent. Domestic Relations Law §§ 71 and 72 define standing for siblings and grandparents to seek visitation or custody. Family Court Act § 1030 concerns the standing of respondents to seek visitation during child protective proceedings. Family Court Act § 1081 concerns the rights of non-custodial parents and grandparents previously awarded visitation rights to enforce those rights during child protective proceedings and establishes standing to seek sibling visitation for children in foster care. In contrast, Family Court Act § 1089, which governs permanency hearings for children in foster care, does not limit who may be included in a visitation plan as part of a permanency hearing order (Family Court Act §§ 1089[c][2][iv], 1089[d][2][vii][A]). The majority strongly disagreed with the dissent’s argument that its holding could somehow create standing for legal strangers to seek visitation in foster care cases, and stated: “We do not so hold.” The majority noted that commonly, visitation plans for children in foster care involve parents, grandparents, or siblings, all of whom have standing to commence visitation proceedings. However, in this case, there was no visitation petition or proceeding before the court at the time of the permanency hearing. Rather, the court ordered visitation between the children and the former foster mother to advance the children’s “well-being” as it is required to do under Family Court Act § 1086. To accomplish that, the court gave special attention to the unique, undisputed circumstances of these children. It was undisputed that, as the Family Court explained on the record, “there is no legal path where the children end up in [the] care” of the former foster mother. However, the court expressed concern that discontinuing all contact with her at this time would be contrary to their well-being. Under these circumstances, the Family Court’s continuation of visitation with the former foster mother was an appropriate exercise of its authority under Family Court Act § 1089, was tailored to the particular circumstances of these children, and was in keeping with the legislative goal of ensuring foster children’s well-being.
The dissent argued that the Court does not have the power to order visitation between the subject children and a legal stranger.
Appellate Division, Second Department
When an antagonistic relationship exists between the parties who have joint custody, it may be appropriate, to give each party decision-making authority in separate areas. The court providently exercised its discretion in directing the parties to attempt to resolve their differences by consulting with a parental coordinator before filing any future modification petitions
In Narine v. Singh, --- N.Y.S.3d ----, 2024 WL 3514308, 2024 N.Y. Slip Op. 03890 (2d Dept.,2024) the parties, who were never married to each other, had two children, a daughter born in 2010 and a son born in 2013. In an order dated May 12, 2020, issued on consent of the parties, the Family Court awarded the parties joint legal and physical custody of the children and issued a parental access schedule. In March 2022, the mother filed a petition to modify the prior order to award her sole access, and shortly thereafter the father filed a petition to modify the prior order, to award him sole custody of the parties’ children. In an order dated August 10, 2023, the court, after a hearing, granted the father’s petition to the extent of awarding him educational and extracurricular decision-making authority with respect to the parties’ son. The court also directed the parties to work together to engage a family therapist for the father and the daughter and to attempt to resolve any differences with the assistance of a parental coordinator before filing any future modification petitions. The Appellate Division affirmed. It held that when an antagonistic relationship exists between the parties, it may be appropriate, depending upon the particular circumstances of the case, to give each party decision-making authority in separate areas. The division of authority is usually made either somewhat evenly, to maintain the respective roles of each parent in the child’s life or, although unevenly, in a manner intended to take advantage of the strengths or demonstrated ability of each parent. It found that there was a sound and substantial basis for the Family Court’s determination. It also found that under the circumstances, the court providently exercised its discretion in directing the parties to attempt to resolve their differences by consulting with a parental coordinator before filing any future modification petitions (citing Assad v. Assad, 200 A.D.3d 831, 833, 161 N.Y.S.3d 92; Silbowitz v. Silbowitz, 88 A.D.3d 687, 687–688, 930 N.Y.S.2d 270).
In Silbowitz v Silbowitz, supra, the Second Department held that although a court may properly appoint a parenting coordinator to mediate between parties and oversee the implementation of their court-ordered parenting plan a court may not delegate to a parenting coordinator the authority to resolve issues affecting the best interests of the children.
Supreme Court
Supreme Court granted the motion of AFC that during the pendency of the proceedings, the mother take down her website about the divorce case and not engage in further posting related to issues in this case.
In M.D.S., v. E.W., Slip Copy, 2024 WL 3515708 (Table), 2024 N.Y. Slip Op. 50947(U), an Unreported Disposition the parties were married and engaged in a contested matrimonial action. They had two children who resided with the mother. The Father was the son of a well-known children's book author. The Mother named her website using the Grandfather’s pen name. The homepage of the website featured a photo of the parties’ Children and their grandfather. Within this website, the Mother brought up nearly every issue in the parties’ divorce from financial issues to custody. The Court advised the Mother that this website was wholly inappropriate and contrary to the best interests of the Children. Despite multiple warnings, the Mother elected to proceed with her internet onslaught. In light of the hostile nature of the litigation and the clear on-going threat to the Children’s best interests by the Mother’s ill-advised “vigilante justice”, even after the Court's warning, the Court appointed an attorney for the Children (AFC). Shortly after her appointment, the AFC moved by emergency order to show cause seeking the immediate and final relief of, inter alia, ordering the Mother to take down the website; and for neither parent to disparage the other in the presence of the Children or online in any manner nor interfere with the Children’s attorney-client relationship. The Court conformed and granted the interim relief of “(i) directing the Mother to immediately take down all content that reflects or references claims or potential evidence in this proceeding from the website; (ii) prohibiting the Mother from posting, publishing or sharing publicly any blog posts, posts, photographs, videos, audio recordings, text messages, notes, and the like of Plaintiff, Subject Children, paternal relatives, or any other individual or communication related to the claims in this pending litigation or any potential evidence in this action on any social media, websites, newspapers or publications; (iii) directing that neither parent, in the presence of the Children, or online, disparage the other parent or the relatives or partners of the other parent, discuss litigation or litigation-involved professionals, or discuss the Children’s relationship or communications with their attorney; and (iv) directing that neither party shall discuss with or interrogate the Children regarding the content of their interviews with their attorney.” After the Order was conformed on June 21, 2024, the Mother, posted more information on the website concerning the litigation under a new post. The Mother discussed the AFC’s Order to show cause, accused the AFC of aligning with the Father to award him sole custody (a request he had not made before the Court), and questioned this Court’s authority. The court found that the case law supported the conclusion that the court had the power, in an appropriate case, to enjoin one or both parents from making statements to a child that are against the “best interests” of the child if the order is narrowly drawn to meet the purpose. It granted the AFC’s request for a direction, during the pendency of the proceedings, that the mother take down the website and not engage in further posting related to issues in this case.
July 24, 2024
Family Court improvidently exercised its discretion in failing to conduct an in-camera interview of the child, particularly given the child’s position, as stated by the attorney for the child, regarding his fear and hatred of the father, his expressed concerns about the father’s lifestyle, and his strong wishes not to have parental access with the father.
In Matter of Dionis F. v. Daniela Z.--- N.Y.S.3d ----, 2024 WL 3434406, 2024 N.Y. Slip Op. 03822 (2d Dept.,2024) the parties had one child. The mother filed a petition for sole custody. The father filed a petition for parental access with the child. The parties entered into a stipulation of settlement resolving both petitions on June 22, 2023. The stipulation of settlement provided, inter alia, that the mother would have sole custody of the child and that the father would have “supervised” and “therapeutic” parental access with the child. It stated that when the agency/parents determine that supervised parenting time is no longer necessary, the parties shall mutually agree upon an expansion of the Father’s parenting time. When the parties appeared in the Family Court and advised the court that they had reached a resolution, the attorney for the child objected, indicating that the child wished to have no contact with the father. The court so-ordered the stipulation of settlement over the objection of the attorney for the child. The child appealed. The Appellate Division observed that although an appeal may be taken by the attorney for the child, the child does not have full-party status and cannot veto a settlement reached by the parents and force a trial after the attorney for the child had a full and fair opportunity to be heard. However, the decision to conduct an in-camera interview to determine the best interests of the child is within the discretion of the hearing court. It held that under the circumstances of this case, the Family Court improvidently exercised its discretion in failing to conduct an in-camera interview of the child, particularly given the child’s position, as stated by the attorney for the child, regarding his fear and hatred of the father, his expressed concerns about the father’s lifestyle, and his strong wishes not to have parental access with the father. The record reflected that the child was of such an age and maturity that his preferences were necessary to create a sufficient record to determine what parental access would be in his best interests. While the attorney for the child recounted the child’s objections on the record, in the absence of an in-camera interview, the court did not have sufficient information to assess what parental access arrangement would be in the child’s best interests. It was unclear from the order what specific type of parental access, therapeutic or supervised, was agreed to. Under the circumstances of this case, where the child was adamantly opposed to parental access, that portion of the order that permitted the expansion of parental access from “supervised parenting time” upon the parties’ consent, alone, was not proper. Although the express wishes of a child are not controlling, they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful. The child’s rights do not evaporate upon the conclusion of the case in the hearing court (see Matter of Newton v. McFarlane, 174 A.D.3d at 72, 103 N.Y.S.3d 445). It reversed and remitted the matter to the Family Court for an in-camera interview with the child to develop a sufficient record concerning parental access, including the basis for the child’s fears of having contact with the father, and for a new determination of the issue of parental access.
Appellate Division, Third Department
Funds husband spent on a campaign for District Attorney did not constitute a wasteful dissipation of marital assets. While marital funds were used for the campaign, the wife did not seek credit for the money spent and no such credit was given rendering this issue of no moment.
In Kopko v Kopko, --- N.Y.S.3d ----, 2024 WL 3446834, 2024 N.Y. Slip Op. 03853 (3d Dept.,2024) the Plaintiff (wife) and defendant (husband) were married in 1992 and had one child (born in 1996). In 2019, the wife commenced this divorce action. The husband, a practicing attorney, answered and in June 2022, one month before trial, moved for ancillary relief, including temporary maintenance and interim expert witness and counsel fees. He maintained that he was the less-monied spouse and that his health issues prohibited him from generating sufficient income to effectively litigate the matter. Supreme Court deferred resolution of the husband’s motion pending trial given a dispute as to which party had the higher income, but allowed each party to withdraw $8,000 from a jointly-held bank account. In July 2022, the husband moved to recuse the presiding trial judge. Supreme Court denied the motion. After a trial held in July 2022, the court granted the parties a divorce and distributed the marital property. The court denied the husband’s request for maintenance, as well as his request for expert witness and counsel fees. A judgment of divorce was entered on February 6, 2023. The Appellate Division affirmed.
The Appellate Division, inter alia, rejected the husband's argument that the Supreme Court improperly applied the pertinent statutory factors in distributing the marital property and inadequately considered the impact of his health on his earning capacity. At the time of trial, the wife was 58 and the husband was 73. During the trial, the husband revealed that, due to serious health issues, he experiences “profound fatigue.” While he continued to appear as counsel of record in other matters, he largely did so virtually. He envisioned practicing law until at least the fall of 2023. By comparison, the husband’s doctor testified that he should be putting all of his limited energy into improving his health as opposed to maintaining his profession. Supreme Court awarded an $85,000 separate property credit to the husband for a down payment he had made on the parties’ prior marital residence in Rhode Island. The court reasonably rejected the husband’s undocumented assertion that the appreciation in the value of the Rhode Island property which the parties sold upon relocating to New York constituted separate property. The court also properly deemed the husband solely responsible for the tax liability arising from a significant contingent fee he earned in 2019, which he admittedly opted not to pay due to concerns over COVID–19. The court then divided the remaining assets “in a substantially equal fashion,” while awarding the marital home to the husband at his request. As for maintenance, the court recognized that the husband’s health would “likely preclude him from practicing law on a full-time basis,” and imputed his income earning potential from the practice of law at 50% of his historical earnings, amounting to $57,772 yearly. Despite this diminished earning capacity and the fact that the husband would no longer obtain medical insurance through the wife’s employment following a divorce, the court determined he would still have “sufficient income to be self-supporting” given that he received $42,256.80 per year in Social Security benefits, as well as $8,266.34 in required minimum distributions from a SEP IRA. By comparison, the wife’s annual income was $89,501.77. Moreover, each party was able to retain their respective retirement savings. In view of the foregoing, the court denied the husband’s maintenance request.
The Appellate Division held that given the long duration of this marriage, the distributive award was fair and reasonable, as was the Supreme Court’s determination that the husband was not entitled to maintenance. It rejected the husbands' argument that
Supreme Court abused its discretion in finding the wife liable for only 37.4% of the outstanding student loan debt incurred on behalf of their child solely in the husband’s name. The wife paid a significant share of the outstanding debt with the income she received after the commencement of the divorce action – i.e., with separate property. It also rejected his argument that the Supreme Court abused its discretion in denying his request for counsel fees, both on an interim basis and after trial. In denying the husband’s request, the court noted that the parties had “relatively equal incomes” and that, by virtue of its equitable distribution award, neither party could be considered the less monied spouse. The court considered the parties’ relative financial circumstances in declining to award counsel fees and there was no abuse of discretion.
The Appellate Division agreed with the husband that the funds he spent on a campaign for District Attorney in 2020 did not constitute a wasteful dissipation of marital assets, as the Supreme Court erroneously found (see generally Strang v. Strang, 222 A.D.2d 975, 978, 635 N.Y.S.2d 786 [3d Dept. 1995]). While the husband conceded that marital funds were used for the campaign, the wife did not seek credit for the money spent and no such credit was given – rendering this issue of no moment.
The party asserting equitable estoppel must make an initial showing that a genetic marker test would disrupt an existing parent-child relationship. Only then does the burden shift to the petitioner to demonstrate that it would be in the child’s best interest to order genetic marker testing. It is the child’s justifiable reliance on a representation of paternity that is considered.
In Matter of Jacob G v. Antonia H., --- N.Y.S.3d ----, 227 A.D.3d 1329, (3d Dept., 2024) the Appellate Division affirmed an order which, in a proceeding pursuant to Family Ct Act article 5, ordered genetic marker testing to establish petitioner’s paternity of a child born to the respondent. The respondent was the mother of a child (born in 2018). The mother and petitioner were in a romantic relationship in 2018 when the mother became aware she was pregnant with the child. Shortly thereafter, the petitioner was incarcerated, and the parties’ relationship dissolved. During the mother’s pregnancy, she began a relationship with another man (the paramour), which relationship continued to the present. Following the petitioner’s release from custody to parole supervision, the petitioner became involved in the child’s life in July 2019. In August 2019, an order of protection was issued against the petitioner in favor of the mother, and the petitioner was re-incarcerated for a parole violation. The petitioner was released from custody in October 2020. Petitioner commenced the proceeding in March 2020, while still incarcerated, seeking to establish paternity. The mother asserted the affirmative defense of equitable estoppel. After a hearing Family Court, concluded that the mother had not met her initial burden to establish that the petitioner should be equitably estopped from claiming paternity and ordered genetic testing. The Appellate Division affirmed. It observed that as the party asserting equitable estoppel, the mother must first make an initial showing that a genetic marker test would disrupt an existing parent-child relationship, and only then does the burden shift to the petitioner to demonstrate that it would be in the child’s best interest to order genetic marker testing. The application of the doctrine of equitable estoppel does not involve the equities between adult participants to the paternity proceedings; rather, in the context of a paternity proceeding, it is the child’s justifiable reliance on a representation of paternity that is considered and, therefore, the doctrine of equitable estoppel will be applied only where its use furthers the best interests of the subject child. The record supported the Family Court’s conclusion. Although the petitioner had minimal contact with the child since his birth, the petitioner, while incarcerated, participated in the child’s birth by telephone and attempted to file several paternity petitions. The evidence also showed that the mother and the paramour facilitated the petitioner’s relationship with the child by, for example, arranging for the petitioner to see the child while the petitioner was incarcerated and upon his release. The paramour did not hold himself out as, nor did others consider him to be, the child’s biological father. The adults in the child’s life regarded the petitioner as the child’s likely biological father. The child had the petitioner’s last name and lived with maternal half-siblings who were also not, nor did they believe themselves to be, the paramour’s biological children, suggesting that the child’s interests would not be adversely affected by learning that someone other than the paramour is his biological father. The mother failed to show the genetic marker test would disrupt an already recognized and operative parent-child relationship.
July 17, 2024
An appeal from an intermediate or final order in a case involving abuse or neglect may be taken as of right. The former foster mother lacked standing to seek visitation. However, she did not seek visitation. Family Court continued the pre-existing order of supervised visitation.
In Matter of AL.C., --- N.Y.S.3d ----, 2024 WL 3363006, 2024 N.Y. Slip Op. 03799 (1st Dept.,2024) the Appellate Division affirmed an order of the Family Court which continued the pre-existing order of supervised visitation with the former foster mother. The Court rejected the argument raised by the attorney for the children that the appeal should be dismissed because the permanency hearing order on appeal was a nonfinal order. Under the Family Court Act, the Appellate Division Court has jurisdiction to hear this appeal because “[a]n appeal from an intermediate or final order in a case involving abuse or neglect may be taken as of right” (see Family Court Act § 1112[a]; see also Matter of Christy C. [Roberto C.], 77 A.D.3d 563, 563, 909 N.Y.S.2d 351 [1st Dept. 2010]]).
The majority agreed with ACS that the former foster mother lacked standing to seek visitation, and was not entitled to the same “solicitude” as a parent in determining a visitation plan in the order. However, the former foster mother did not seek visitation. Family Court continued the pre-existing order of supervised visitation with the former foster mother because the court determined that, contrary to ACS’s arguments, and based on the evidence presented at the hearing, doing so was in the children’s best interests and would advance the goal of finalizing the children’s placement for adoption (Family Court Act § 1089[d]). The dissent argued that the Family Court may only direct visitation with certain persons in a permanency hearing order, citing and relying on Domestic Relations Law §§ 70, 71, and 72 and Family Court Act §§ 1030 and 1081. The majority held that those statutes were not applicable here. Domestic Relations Law § 70 sets forth the procedure for a parent to seek the return of a child wrongfully detained by another parent. Domestic Relations Law §§ 71 and 72 define standing for siblings and grandparents to seek visitation or custody. Family Court Act § 1030 concerns the standing of respondents to seek visitation during child protective proceedings. Family Court Act § 1081 concerns the rights of non-custodial parents and grandparents previously awarded visitation rights to enforce those rights during child protective proceedings and establishes standing to seek sibling visitation for children in foster care. In contrast, Family Court Act § 1089, which governs permanency hearings for children in foster care, does not limit who may be included in a visitation plan as part of a permanency hearing order (Family Court Act §§ 1089[c][2][iv], 1089[d][2][vii][A]). The majority strongly disagreed with the dissent’s argument that its holding could somehow create standing for legal strangers to seek visitation in foster care cases, and stated: “We do not so hold.” The majority noted that commonly, visitation plans for children in foster care involve parents, grandparents, or siblings, all of whom have standing to commence visitation proceedings. However, in this case, there was no visitation petition or proceeding before the court at the time of the permanency hearing. Rather, the court ordered visitation between the children and the former foster mother to advance the children’s “well-being” as it is required to do under Family Court Act § 1086. To accomplish that, the court gave special attention to the unique, undisputed circumstances of these children. It was undisputed that, as the Family Court explained on the record, “there is no legal path where the children end up in [the] care” of the former foster mother. However, the court expressed concern that discontinuing all contact with her at this time would be contrary to their well-being. Under these circumstances, the Family Court’s continuation of visitation with the former foster mother was an appropriate exercise of its authority under Family Court Act § 1089, was tailored to the particular circumstances of these children, and was in keeping with the legislative goal of ensuring foster children’s well-being.
The dissent argued that the Court does not have the power to order visitation between the subject children and a legal stranger.
Appellate Division, Second Department
CPLR 2104 does not require the parties or the court to place on the record an agreement between the parties that is reduced to an order. However, failing to do so makes the agreement open to collateral litigation.
In Matter of Izzo, v. Salzarulo, --- N.Y.S.3d ----, 2024 WL 3351693, 2024 N.Y. Slip Op. 03751 (2d Dept.,2024) during a hearing on their petitions for custody of the children, the parties reached a settlement. The Family Court, without stating the terms of the settlement on the record, allocuted the parties, who both stated that they had reviewed the settlement with their respective attorneys and were agreeing to the settlement voluntarily and freely. In an order dated August 31, 2022, the court, inter alia, awarded the parties joint legal custody of the children, with physical custody and final decision-making authority to the father and certain parental access to the mother (custody order). The mother filed a petition to modify the custody order and then moved to vacate the custody order. In support of her motion, the mother submitted an affidavit in which she averred, inter alia, that she had not consented to the terms of the custody order. Family Court denied the motion without a hearing. The mother appeals. The Appellate Division observed that pursuant to CPLR 2104, an agreement between parties is binding against them where, as here, it was reduced to the form of an order and entered. Since settlement agreements must abide by the principles of contract law, for an enforceable agreement to exist, all material terms must be set forth and there must be a manifestation of mutual assent (Herz v. Transamerica Life Ins. Co., 172 A.D.3d 1336, 1337–1338, 99 N.Y.S.3d 664, quoting Forcelli v. Gelco Corp., 109 A.D.3d 244, 248, 972 N.Y.S.2d 570). CPLR 2104 does not require the parties or the court to place on the record an agreement between the parties that is reduced to an order. However, failing to do so makes the agreement open to collateral litigation. In light of the mother’s averment that she did not consent to the terms of the custody order, the fact that the terms of the settlement were not placed on the record, and the fact that there was no writing subscribed by the parties, there was an unresolved issue as to whether there was a manifestation of mutual assent to the terms set forth in the custody order. It remitted the matter to the Family Court, for a hearing on the mother’s motion and a new determination thereafter.
Where a parent has repeatedly failed to appear at scheduled court appearances and to comply with the court’s directives, the court has the authority to proceed by default. This in no way diminishes the court’s primary responsibility to ensure that an award of custody is predicated on the child’s best interests upon consideration of the totality of the circumstances, after a full and comprehensive hearing
In Matter of Akaberi v Cruciani, --- N.Y.S.3d ----, 2024 WL 3351785, 2024 N.Y. Slip Op. 03745 (2d Dept.,2024) the parties are the parents of a child born in 2011, who has remained in the care of the mother since birth. In an order dated May 23, 2014, the Family Court awarded the father certain supervised parental access to the child. In October 2021, the father filed a petition to modify the order of supervised parental access. In January 2022, the mother filed a petition for sole legal and physical custody of the child. During court conferences throughout 2022, the Family Court, inter alia, directed the father to undergo a mental health evaluation and prohibited him from bringing recording devices into the courtroom. The father failed to comply with the court’s directives, and on April 20, 2022, the father was denied entry to the courtroom after he refused to voucher his recording devices. On June 16, 2022, the father was again denied entry to the courtroom after he refused to voucher his recording devices, among other things. Upon the father’s failure to appear at the scheduled court appearance, in separate orders, each dated June 16, 2022, the court dismissed the father’s petition and, without a hearing, granted the mother’s petition for sole legal and physical custody of the child, with no parental access to the father. The Family Court thereafter denied his motion to vacate the orders dated June 16, 2022. The Appellate Division observed that where a parent has repeatedly failed to appear at scheduled court appearances and to comply with the court’s directives, the court has the authority to proceed by default. This authority, however, in no way diminishes the court’s primary responsibility to ensure that an award of custody is predicated on the child’s best interests, upon consideration of the totality of the circumstances, after a full and comprehensive hearing and a careful analysis of all relevant factors (Matter of Sims v. Boykin, 130 A.D.3d at 835–836, 13 N.Y.S.3d 514; see Matter of Trammell v. Gorham, 218 A.D.3d at 781, 194 N.Y.S.3d 53). It held that the Family Court erred in rendering a custody determination without conducting a hearing or without the submission of any admissible evidence, seemingly relying upon the hearsay statements of the attorneys. Furthermore, the court failed to make any specific findings of fact regarding the best interests of the child and failed to clearly articulate which factors were material to its determination. Under the circumstances, the court should have granted that branch of the father’s motion which was to vacate the order dated June 16, 2022, granting the mother’s petition for sole legal and physical custody of the child. However, the Family Court providently exercised its discretion in denying the father’s motion to vacate the order dated June 16, 2022, dismissing the father’s petition to modify the order of supervised parental access as he failed to establish either a reasonable excuse for his default or a potentially meritorious claim.
The purpose of criminal contempt is to vindicate the authority of the court and to punish the contemnor for disobeying a court order. The imposition of punishment for criminal contempt requires proof beyond a reasonable doubt that the alleged contemnor willfully violated a clear and unequivocal court mandate
In Agulnick v Agulnick, --- N.Y.S.3d ----, 2024 WL 3351669, 2024 N.Y. Slip Op. 03724 (2d Dept.,2024) the plaintiff commenced this action for a divorce in 2018. In an order entered June 23, 2021, the Supreme Court directed an in-patient psychological evaluation of the parties’ oldest child, who was then 15 years old. Thereafter, the plaintiff moved, to enroll the child into a therapeutic boarding school located in Maine. In an order dated October 25, 2021, the court granted the motion and directed the defendant to bring the child to court the next day at 9 a.m. and to encourage the child to go with a transport team that was to take him to the school. The next day, October 26, 2021, the defendant initially appeared in court without her attorney and the Supreme Court repeated its instructions to her. Shortly thereafter, that same morning, the case was recalled on the ground that the child was in the defendant’s vehicle and had refused to go with the transport team; the defendant’s attorney was present when the case was recalled. The court thereafter conducted a hearing during which it heard evidence from members of the transport team who testified that the defendant discouraged the child from cooperating with them. After the hearing, in an order dated October 26, 2021, the court adjudged the defendant to be in criminal contempt of court for willfully disobeying the October 25 order and imposed a penalty of a period of incarceration of 30 days. The Appellate Division held that the purpose of criminal contempt is to vindicate the authority of the court (see Matter of Figueroa–Rolon v. Torres, 121 A.D.3d 684, 685, 993 N.Y.S.2d 348), and to punish the contemnor for disobeying a court order. The imposition of punishment for criminal contempt requires proof beyond a reasonable doubt that the alleged contemnor willfully violated a clear and unequivocal court mandate. Here, the evidence before the Supreme Court was sufficient to support a finding, beyond a reasonable doubt, that the defendant willfully disobeyed the October 25 order, a clear and unequivocal mandate of the court, by discouraging the child from cooperating with the transport team (see Judiciary Law § 750[A][3]). Accordingly, the Supreme Court properly adjudged the defendant to be in criminal contempt of court for willfully disobeying the October 25 order. Nonetheless, under the circumstances of this case, it concluded that the penalty imposed was excessive to the extent indicated herein and remitted the matter to the Supreme Court, Nassau County, for the imposition of an appropriate fine, upon a hearing and determination of the amount to be imposed.
July 10, 2024
Appellate Division, Third Department
Neglect occurs when an individual behaves in a manner at odds with that of a reasonable and prudent parent under the circumstances, and that behavior results in actual harm or an imminent threat of danger to the children that is near or impending, not merely possible
In Matter of Caylin T. --- N.Y.S.3d ----, 2024 WL 3278908, 2024 N.Y. Slip Op. 03569 (3d Dept., 2024) the Appellate Division affirmed the finding of neglect. It held that “neglect occurs when an individual behaves in a manner at odds with that of a reasonable and prudent parent under the circumstances, and that behavior results in actual harm or an imminent threat of danger to the children that is near or impending, not merely possible.” Such a threat may well be found to have resulted from a single incident or circumstance. In affirming the finding of neglect, it found that the mother’s behavior was at odds with that of a reasonable and prudent parent when she argued with the father and punched a hole through the wall with her fist. When speaking about her argument with the father, the mother expressed her regret in commencing a discussion with the father rather than her regret in yelling and punching the wall. The mother’s focus remained on her emotions at the time of the incident and minimized that of the children. Her actions on another day fell far below reasonable parental behavior in that she violated the order of protection in arriving at the home, yelled at and threatened to harm the grandmother, and placed her children in fear, compelling them to arm themselves with a pipe and bat to protect themselves. Family Court characterized the mother as “selfish, erratic and frightening,” noting that “there was nothing reasonable or prudent about” her actions. Additionally, testimony was elicited that the mother’s use of yelling and name-calling created a tense living situation that was harmful to the children. Deferring to Family Court’s creditability determinations, the Appellate Division found a sound and substantial basis in the record to support the finding that the children’s mental states had been impaired by the mother’s behavior.
A document may not be included in the record on appeal where it was not submitted to the court on any pretrial motion, offered as an exhibit at trial or where the court did not consider the document when making its decision
In Matter of Ahnna N., --- N.Y.S.3d ----, 2024 WL 3278634, 2024 N.Y. Slip Op. 03575 (3d Dept., 2024) the court revoked the parties suspended judgments and terminated their parental rights. In preparation for an appeal, the mother moved before Family Court to settle the record, including in her proposed record several CASA (Court appointed special advocate) reports generated after the suspended judgment. The court denied the mother’s motion. The Appellate Division affirmed. It observed that CPLR 5526 states that the record on appeal from a final judgment shall consist of the notice of appeal, the judgment-roll, the corrected transcript of the proceedings, any relevant exhibits, any other reviewable order, and any opinions in the case. The judgment-roll shall contain the summons, pleadings, admissions, each judgment, and each order involving the merits or necessarily affecting the final judgment (CPLR 5017[b]). To that end, a document shall not be included in the record on appeal where it was not submitted to the court on any pretrial motion, offered as an exhibit at trial or where the court did not consider the document when making its decision (see Xiaoling Shirley He v. Xiaokang Xu, 130 A.D.3d 1386, 1387–1388, 16 N.Y.S.3d 90 [3d Dept. 2015]; Balch v. Balch, 193 A.D.2d 1080, 1080, 598 N.Y.S.2d 1022 [4th Dept. 1993]). Significantly, the trial court is the final arbiter of the record and its settlement of the record should not be disturbed absent an abuse of discretion” Here, there was no dispute that the CASA reports in question were not offered as evidence during the revocation hearing, which renders them beyond consideration by the Appellate Division on appeal (see CPLR 5017[b]) Moreover, there was no indication that Family Court relied upon those CASA reports or that such reports necessarily affected the court’s final judgment. Although the advocate who authored the CASA reports in question testified during the hearing, her testimony was limited to acknowledging the preparation of the reports and the efforts expended in that respect. To that end, the advocate did not testify directly about the content of the reports at any point during the court’s examination and the Family Court did not reference the CASA reports in its decision revoking the suspended judgments. The court did not abuse its discretion in denying the mother’s motion to include the reports in the record on appeal.
In a proceeding to modify a custody order a change in circumstances warranting inquiry into whether a change is in the best interest of the child is demonstrated through new developments or changes that have occurred since the previous custody order was entered.
In Matter of Jacob L., v. Heather L., --- N.Y.S.3d ----, 2024 WL 3186780, 2024 N.Y. Slip Op. 03520 (3d Dept.,2024) a proceeding to modify custody, the Appellate Division held that a change in circumstances is demonstrated through new developments or changes that have occurred since the previous custody order was entered. The father asserted in his petition that his work schedule had changed, which the mother conceded to be true, indicating that they had to alter his parenting time to accommodate his new work schedule. Based upon this, the father had demonstrated a change in circumstances warranting inquiry into whether a change in the custody or parenting time arrangement was in the best interests of the child. It remitted the matter for a determination in this respect. The Court agreed with the father’s contention that the Family Court abused its discretion in awarding $12,385.55 in counsel fees to the mother based upon the foregoing conclusion. Here, despite no violation petition being filed against the father, the court found that “the father’s willful violation” of the prior custody order and his “deceptions concerning his alcohol consumption” warranted the imposition of counsel fees. Essentially this resulted in sanctioning the father for filing the modification petition based upon his subsequent consumption of alcohol. Considering its determination as to the court’s mistaken determination that the father was unable to demonstrate a change in circumstances, it reversed the court’s award of counsel fees to the mother as an abuse of discretion.
Appellate Division, Fourth Department
The court did not abuse its discretion in calculating the defendant's income for child support based on her actual rate of compensation for the job she obtained during the pendency of the divorce. Since she was receiving higher rates of compensation at the time of trial than she had received before, the court was not required to determine her income based on previous tax returns or W-2s.
In Doores v Doores, --- N.Y.S.3d ----, 2024 WL 3287230, 2024 N.Y. Slip Op. 03638(4th Dept., 2024) the Appellate Division rejected the defendant’s contention that the Supreme Court erred in its determination of equitable distribution. It observed that it is well settled that equitable distribution presents issues of fact to be resolved by the trial court, and its judgment should be upheld absent an abuse of discretion. There was no abuse of discretion. It held that the court did not err in declining to award maintenance to her. As a general rule, the amount and duration of maintenance are matters committed to the sound discretion of the trial court. Where, as here, the court gave appropriate consideration to the statutory factors under Domestic Relations Law § 236 (B) (6), the Court “will not disturb the determination of maintenance absent an abuse of discretion.” Among other things, the court considered the length of the marriage, the defendant’s education, employment history, and earning potential, and the fact that the defendant was the beneficiary of many expenses paid by the plaintiff while the divorce was pending. The court balanced “[defendant’s] needs and [plaintiff’s] ability to pay” and the court properly determined that the defendant was capable of self-support. It rejected the Defendant's argument that the court erred in determining the amount of child support and in calculating her income based on her actual rate of compensation for the job she obtained during the pendency of the divorce. Since she was receiving higher rates of compensation at the time of trial than she had received before, the court was not required to determine her income based on previous tax returns or W-2s (see Eberhardt-Davis v. Davis, 71 A.D.3d 1487, 1488, 897 N.Y.S.2d 376 [4th Dept. 2010]).
Father was not denied due process by the Family Court’s consideration of orders of protection outside the record
In Matter of Hudson v Carter, --- N.Y.S.3d ----, 2024 WL 3287528, 2024 N.Y. Slip Op. 03615 (4th Dept., 2024) the Appellate Division held that the father was not denied due process by the Family Court’s consideration of evidence outside the record, - orders of protection issued against him. Pursuant to Family Court Act § 651 (e) (3) (ii), the court is required to conduct a review of “reports of the statewide computerized registry of orders of protection.
Home surveillance videos depicting abuse were properly admitted in evidence where the videos were sufficiently authenticated through testimony regarding their source and how they were discovered in conjunction with testimony supporting the conclusion that the videos depicted the area and individuals they purported to depict.
In Matter of Mekayla S, 2024 WL 3286953 (4th Dept., 2024) the Appellate Division affirmed an order which found that the mother abused her daughter and that she derivatively abused her son. The adjudications arose from allegations that the mother’s boyfriend sexually abused the daughter on multiple occasions. It rejected the mother's contention that the Family Court erred in admitting in evidence home surveillance videos depicting the abuse since the petitioner failed to establish the authenticity of the videos. Under the circumstances of this case, it concluded that the videos were sufficiently authenticated through testimony regarding their source and how they were discovered in conjunction with testimony supporting the conclusion that the videos depicted the area and individuals they purported to depict (see People v. Goldman, 35 N.Y.3d 582, 595-596, 135 N.Y.S.3d 48, 159 N.E.3d 772 [2020]; see generally People v. Jordan, 181 A.D.3d 1248, 1249-1250, 119 N.Y.S.3d 786 [4th Dept. 2020],). The videos were discovered by the Federal Bureau of Investigation (FBI) during an unrelated investigation in late January 2022 into the trading of child pornography. The FBI executed a search warrant upon a person (suspect) who was a subject of their investigation. The suspect admitted to an FBI special agent that he had been hacking into security web cameras and that, in 2019, he had hacked into a security camera and observed what he believed was an adult male sexually abusing a teenage girl. Following the suspect’s directions, the FBI was able to obtain from the suspect’s computer three videos and, from there, details regarding the security camera login information, including an email address. Through the FBI’s investigative work, together with the assistance of the New York State Police, it was determined that the videos came from a camera in the house in which the mother resided with the subject children and her boyfriend. The FBI agent explained how he copied the videos from the suspect’s computer onto a DVD, and he testified that the videos on the DVD that was admitted in evidence at the fact-finding hearing were true and accurate copies of the videos he viewed on the suspect’s computer. He testified that he did not make any observations that led him to believe that the video footage had been tampered with or altered in any way. The videos were date-stamped from May, June, and July 2019. In the course of the investigation, the State Police obtained a New York State driver’s license of the male occupant of the house and also a student school identification card of the teenage girl who lived in the house. The identification cards portrayed the individuals in the videos. A detective with the State Police testified that he showed screenshots from the videos to the mother, who identified the female in one image as her daughter and the male in another as her boyfriend. The mother refused to view the videos.
The Appellate Division rejected the mother's contention that the petitioner failed to authenticate the videos through the testimony of a person who witnessed the events, made the videos, or had sufficient knowledge of the surveillance system to show that it accurately recorded the events. It held that the admissibility of video evidence rests within the sound discretion of the trial court so long as a sufficient foundation for its admissibility has been proffered. In determining whether a proper foundation has been laid, the accuracy of the object itself is the focus of inquiry. Accuracy or authenticity is established by proof that the offered evidence is genuine and that there has been no tampering with it. A video may be authenticated by the testimony of a witness to the recorded events or of an operator or installer or maintainer of the equipment that the video accurately represents the subject matter depicted. A video may also be authenticated, however, by testimony, expert, or otherwise establishing that the video truly and accurately represents what was before the camera. The foundation necessary to establish authenticity may differ according to the nature of the evidence sought to be admitted” The Appellate Division agreed that the videos were sufficiently authenticated and that “any alleged uncertainty went to the weight to be accorded the evidence rather than its admissibility” The video came into police possession through unusual circumstances, and through the investigation, the police were able to corroborate much of what was depicted in the video. The testimony of the FBI agent and the State Police detective authenticated the videos through circumstantial evidence of their “appearance, contents, substance, internal patterns, and other distinctive characteristics” The testimony at the fact-finding hearing established that the videos depicted the living room of the home in which the mother, the subject children, and the boyfriend lived. The State Police detective testified that the mother identified her daughter and boyfriend in screenshots taken from the videos; that he observed cameras in the house, including in the living room; and that he observed that the living room and its furnishings matched what was shown in the videos. As the court noted, the same couch, afghan, end table, and lamp were all visible in the videos and photographs. Other particularly specific items the police recovered from the home were also seen in the videos. In addition, the mother, the children, and the boyfriend were all easily identifiable in the videos. The court determined that the “actions, dialogue, and behavior shown in the videos show no indication of any tampering.” In other words, there were “distinctive identifying characteristics” in the videos themselves. There was also the “significant fact” that the mother did not dispute that. Rather, the mother confirmed through the screenshots from the videos that the individuals shown were her children and boyfriend. In addition, the FBI agent testified that he primarily investigated child pornography and performed digital forensic work and that he saw no signs of alteration or tampering with the videos. It concluded that the petitioner established that the videos accurately represented the subject matter depicted and that the court acted within its “founded discretion” (Patterson, 93 N.Y.2d at 84, 688 N.Y.S.2d 101, 710 N.E.2d 665) in admitting them in evidence.
Justice Whalen dissented concluding that, during the joint fact-finding hearing, the petitioner did not sufficiently authenticate the videos since there was no testimony, expert or otherwise establishing that the videos truly and accurately represented what was before the camera. Petitioner did not offer any testimony from any person who witnessed the events depicted in the videos or who had controlled or maintained the system that recorded the videos. Instead, the petitioner relied largely on the testimony of an agent of the Federal Bureau of Investigation (FBI) who—more than two years after the videos were recorded—transferred the videos from the computer of an individual who was a subject of an FBI investigation (suspect). The suspect had obtained the videos by hacking into a security camera at the house the respondent shared with the mother and the subject children. The FBI agent’s testimony was insufficient, by itself, to authenticate the videos because he did not have any personal knowledge of the creation of the videos or how they were obtained by the suspect, nor did his testimony establish how his experience “perform[ing] digital forensic work” might have “trained him to identify alterations to [the] videos” or provide any basis for his belief that the videos had not been edited or altered.
See also Matter of Gabriel H. --- N.Y.S.3d ----, 2024 WL 3286825, 2024 N.Y. Slip Op. 03588 3286825 (4th Dept, 2024) the companion case involving the same video and evidence where the Appellate Division affirmed the order of fact-finding and disposition that determined that the respondent boyfriend abused the daughter of his girlfriend (the mother) and, that he derivatively abused the mother’s son. Two justices dissented.
Family Court Act § 1056 (4) allows a court to issue an independent order of protection but only against a person who is not related by blood or marriage to the child
In Matter of Jaycob S. --- N.Y.S.3d ----, 2024 WL 3286999, 2024 N.Y. Slip Op. 03595 (4th Dept., 2024) a proceeding pursuant to Family Court Act article 10, the Family Court order, among other things, placed the children in the custody of the petitioner and issued “a complete stay-away order of protection” on behalf of the children against both respondents, the maternal grandfather and his stepsister. The Appellate Division held that the court properly determined that respondents derivatively neglected Jaymes S. and Jaycob S. (Family Court Act § 1046 (a) (i)). However, it agreed with the respondent grandfather, that the court erred in imposing orders of protection against him pursuant to Family Court Act § 1056 (4). Subdivision (4) of [Family Court Act] section 1056 allows a court to issue an independent order of protection but only against a person ... who is not related by blood or marriage to the child” (Matter of Kayla K. [Emma P.-T.], 204 A.D.3d 1412, 1414, 167 N.Y.S.3d 264 [4th Dept. 2022]. It therefore modified the order in each appeal accordingly.
Supreme Court
DRL § 236 B (5)(d)(14) permits non-party discovery of a GPS tracking device in a divorce action.
In A.S., v. A.B., --- N.Y.S.3d ----, 2024 WL 3335688, 2024 N.Y. Slip Op. 24191(Sup Ct, 2024 ) the plaintiff-wife subpoenaed the non-party to produce records relating to a GPS tracking device that she alleged the defendant-husband put or had caused to be put on her automobile, when there was an existing temporary order of protection that specifically provided that he refrain from: “remotely controlling, monitoring or otherwise interfering with any electronic device or other object affecting the home, vehicle or property of [plaintiff] by connection to or through any means, including, but not limited to the internet, Bluetooth, a wire or wireless network or other wireless technology.” The Supreme Court held that DRL § 236 B (5)(d)(14), as amended on April 3, 2020, which requires the Court to consider “whether either party has committed an act or acts of domestic violence, as described in subdivision one of section four hundred fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts” when determining equitable distribution, permits subpoenaed non-party discovery of the tracking device in a divorce action. The defendant’s motion to quash the subpoena and application for a protective order was denied.
July 3, 2024
Appellate Division, First Department
Where wife stated she did not work and had zero income but her net worth statement stated that she had maintenance charges of $8,000 a month the court reasonably interpreted this to mean that the housing costs were being paid by someone other than herself
In Lauber v Lauber, --- N.Y.S.3d ----, 2024 WL 3187188 (Mem), 2024 N.Y. Slip Op. 03538 (1st Dept., 2024) the Court imputed $15,000 in income to the wife for child support purposes. On appeal she argued, inter alia, that there was no “competent evidence” that she lived, as the court surmised, rent-free. The Appellate Division held that the evidence she proffered supported this conclusion. Specifically, she submitted a net worth statement stating she did not work and had zero income and testified that she had received no W–2 income at least since 2016, yet her net worth statement also stated that she had maintenance/condo charges of $8,000/month. The court reasonably interpreted this evidence to mean that those housing costs were being paid by someone other than herself (see e.g. Matter of Nannan L. v. Stephen L., 191 A.D.3d 533, 141 N.Y.S.3d 57 [1st Dept. 2021]).
A respondent parent whose parental rights were not surrendered or terminated is considered a party to a permanency proceeding and is entitled to notices and reports, notwithstanding the lack of consent by a child
In Matter of Parvati D., --- N.Y.S.3d ----, 227 A.D.3d 605, 2024 WL 2752030, 2024 N.Y. Slip Op. 02978(1st Dept.,2024) the Appellate Division observed that Family Court Act § 10–A defines a child as an individual who consented to remain in foster care after turning 18 years old (Family Ct Act § 1087[a]; see also Family Ct Act § 1055[e]). The Act provides for an initial permanency hearing within eight months of a child’s removal from the home, and permanency hearings every six months thereafter (Family Ct Act § 1089[a][2–3]). Before the permanency hearing, the Administration for Children’s Services (ACS) must prepare a permanency hearing report, which must include, among other things, the child’s current permanency goal as well as his or her current health status, any medical conditions or mental health diagnoses, education placement, and any additional services the child needs or receives (Family Ct Act § 1089[b], [c][1]). The Appellate Division affirmed an order which denied the subject child’s application to preclude the respondent father from receiving notice of her permanency hearings and obtaining a copy of the permanency hearing reports. It observed that the Family Court Act provides that unless parental rights have been terminated or surrendered, a child’s parent is considered a party to the permanency proceeding and is entitled to receive a notice of the hearing and a permanency report before a hearing (Family Ct Act § 1089[b][1][i]; 22 NYCRR 205.17[c]). It held that the Family Court properly concluded that the statutory language of Family Court Act § 1089(b)(1)(i) is unambiguous: A respondent parent whose parental rights were not surrendered or terminated is considered a party to a permanency proceeding and is entitled to notices and reports, notwithstanding the lack of consent by a child who opts to remain in foster care after turning 18 years old.
Appellate Division, Second Department
An unsuccessful investment into a business interest during a marriage is not subject to scrutiny in the absence of any evidence that a party acted recklessly or in bad faith. The impact of one spouse’s criminal activity may be considered in determining issues of equitable distribution under proper circumstances.
In Kirshner v Kirshner, --- N.Y.S.3d ----, 2024 WL 3168022, 2024 N.Y. Slip Op. 03475 (2d Dept.,2024) the parties were married in August 2001 and had three children. Before the marriage, the parties executed a prenuptial agreement. In August 2013, the plaintiff commenced this action for a divorce. Following a nonjury trial on the issue of equitable distribution, among other things, a judgment of divorce was entered on January 27, 2020.
The Appellate Division held Supreme Court improvidently exercised its discretion in awarding the plaintiff a credit in the sum of $550,000 for the defendant’s alleged wasteful dissipation of assets with respect to her use of marital funds to purchase a car wash. The party alleging that his or her spouse has engaged in wasteful dissipation of marital assets bears the burden of proving such waste by a preponderance of the evidence. Here, the plaintiff failed to meet his burden of proving that the defendant’s purchase of the car wash constituted marital waste, as the record discloses that the car wash was purchased with the plaintiff’s consent to provide a source of income for the family during the plaintiff’s incarceration in federal prison and to afford him a place to work upon his release. Moreover, although the defendant sold the car wash at a loss during the pendency of this action, an unsuccessful investment into a business interest during a marriage is not subject to scrutiny in the absence of any evidence that a party]acted recklessly or in bad faith. The record did not indicate that the defendant’s sale of the car wash was done recklessly or in bad faith. Notwithstanding that the car wash was sold in contravention of an order restraining the transfer of marital assets, the plaintiff had previously agreed to sell the car wash for the same purchase price ultimately obtained by the defendant. Accordingly, as there was no dispute that the car wash constituted marital property, the Appellate Division modified the judgment to award the parties an equal share of the proceeds from the sale of the car wash.
The Appellate Division held Supreme Court should have awarded the defendant a credit for one-half of the 2012 state tax refund retained by the plaintiff. The plaintiff conceded at trial that he paid his estimated 2012 state tax liability of $27,743 from marital funds, which funds were subsequently refunded to him. Because the plaintiff’s 2012 state tax liability was paid with marital property, the refund was also marital property (see Lueker v. Lueker, 72 A.D.3d 655, 657, 898 N.Y.S.2d 605). Therefore, the defendant was entitled to a credit for $13,871.50, representing one-half of the 2012 state tax refund retained by the plaintiff.
The Appellate Division held Supreme Court also should have awarded the defendant a credit in the sum of $125,000, representing one-half of the funds paid by the plaintiff from the parties’ joint checking account to reacquire a pharmacy that he had sold to his mother during the marriage and that remained his separate property. There is a presumption that commingled property is marital property and separate property “may become marital property if commingled in, for example, a joint account” (Renck v. Renck, 131 A.D.3d 1146, 1148, 17 N.Y.S.3d 431). To overcome a presumption that commingled property is marital property, the party asserting that the property is separate must establish by clear and convincing evidence that the property originated solely as separate property and the joint account was created only as a matter of convenience, without the intention of creating a beneficial interest. Here, the record reflected that the plaintiff paid his mother $250,000 from the parties’ joint checking account to reacquire the pharmacy, and the plaintiff failed to establish that the funds in the joint checking account had been commingled solely for convenience without the intention of creating a marital beneficial interest.
The Appellate Division held Supreme Court providently exercised its discretion in denying the defendant a credit for one-half of $170,000 in legal fees paid during the marriage in connection with the plaintiff’s defense to federal criminal charges of health insurance fraud. The plaintiff ultimately pleaded guilty to one count of healthcare fraud. The impact of one spouse’s criminal activity may be considered in determining issues of equitable distribution under proper circumstances, and the legal fees here were incurred by the plaintiff in connection with wrongdoing involving his separate property ). However, the defendant failed to introduce evidence of the source of the funds used to pay the legal fees and, therefore, failed to establish that the legal fees were paid with marital funds and not with the plaintiff’s separate property. Thus, under the circumstances of this case, the defendant failed to demonstrate her entitlement to this credit.
The Appellate Division held that the Supreme Court providently exercised its discretion in denying the defendant a credit of $10,000, representing one-half of a $20,000 payment made by the plaintiff to his alleged paramour during the marriage. With regard to this sum, the defendant similarly provided no evidence that the plaintiff used marital property and not his separate property when making this payment.
The Appellate Division held Supreme Court properly determined that the defendant was not entitled to an award for the appreciation in value of certain separate property retirement assets identified in the prenuptial agreement following the date of the commencement of this action, including the cash surrender value of the plaintiff’s life insurance policy. Here, the prenuptial agreement obligated the plaintiff to maintain a life insurance policy naming the defendant as a beneficiary “[f]rom and after the date of the marriage of the parties, and until there is a separation event,” and provided that in the event of a “separation event,” all marital property, including the increase in value of the plaintiff’s separate property retirement accounts, shall be equally divided between the parties. The prenuptial agreement defined a “separation event” as the earlier of “the commencement of an action or proceeding by either party which seeks a ... divorce” or the voluntary separation of the parties for a period of not less than 90 days. Affording this language its practical interpretation, the Supreme Court properly determined that the defendant was entitled to a distributive award for the value of these assets to the extent they constituted marital property calculated as of the date of the commencement of this action.
The propriety of a pendente lite order of child support may not be reviewed on an appeal from the judgment of divorce
In Silla v Silla, --- N.Y.S.3d ----, 2024 WL 3195199, 2024 N.Y. Slip Op. 03507 (2d Dept.,2024) the parties were married and had two children. In June 2018, the plaintiff commenced this action for a divorce. In orders dated September 24, 2018, and May 11, 2021, the Supreme Court addressed the defendant’s pendente lite child support obligation. Thereafter, the plaintiff moved, inter alia, to hold the defendant in contempt for failing to comply with her pendente lite child support obligation as set forth in the orders, and for an award of counsel fees. In an order dated November 17, 2021, the court, among other things, denied those branches of the plaintiff’s motion and, sua sponte, reduced the defendant’s pendente lite child support obligation. Following a nonjury trial, the court issued a judgment of divorce dated May 19, 2023. The plaintiff contended on appeal that the Supreme Court should not have, sua sponte, reduced the defendant’s pendente lite child support obligation. The Appellate Division held that (see Badwal v. Badwal, 126 A.D.3d 736, 737, 5 N.Y.S.3d 487; Anderson v. Anderson, 50 A.D.3d 610, 855 N.Y.S.2d 194; Samuelsen v. Samuelsen, 124 A.D.2d 650, 508 N.Y.S.2d 36). In any event, it is the general rule that the proper remedy for any perceived inequity in a pendente lite award is a speedy trial. Here, the trial had been completed, and the judgment of divorce had been issued.
Appellate Division, Third Department
In a proceeding to modify a custody order a change in circumstances warranting inquiry into whether a change is in the best interest of the child is demonstrated through new developments or changes that have occurred since the previous custody order was entered.
In Matter of Jacob L., v. Heather L., --- N.Y.S.3d ----, 2024 WL 3186780, 2024 N.Y. Slip Op. 03520 (3d Dept.,2024) a proceeding to modify custody, the Appellate Division held that a change in circumstances is demonstrated through new developments or changes that have occurred since the previous custody order was entered. The father asserted in his petition that his work schedule had changed, which the mother conceded to be true, indicating that they had to alter his parenting time to accommodate his new work schedule. Based upon this, the father had demonstrated a change in circumstances warranting inquiry into whether a change in the custody or parenting time arrangement was in the best interests of the child. It remitted the matter for a determination in this respect.
The Court agreed with the father’s contention that the Family Court abused its discretion in awarding $12,385.55 in counsel fees to the mother based upon the foregoing conclusion. Here, despite no violation petition being filed against the father, the court found that “the father’s willful violation” of the prior custody order and his “deceptions concerning his alcohol consumption” warranted the imposition of counsel fees. Essentially this resulted in sanctioning the father for filing the modification petition based upon his subsequent consumption of alcohol. Considering its determination as to the court’s mistaken determination that the father was unable to demonstrate a change in circumstances, it reversed the court’s award of counsel fees to the mother as an abuse of discretion.
June 26, 2024
Appellate Division, First Department
Supreme Court was not divested of jurisdiction, as it is a court of general jurisdiction and can annul a marriage and void transactions after a party’s death in Mental Health Law actions
In Matter of Edgar V.L., --- N.Y.S.3d ----, 2024 WL 3107775, 2024 N.Y. Slip Op. 03452 (1st Dept.,2024) the Appellate Division affirmed a judgment that adjudged that the marriage between Edgar Loew (Edgar) and appellant Rachida Naciri (Naciri) was annulled ab initio, ordered that the prenuptial agreement between Edgar and Naciri was void ab initio and unenforceable, ordered that Naciri was not entitled to any equitable distribution, support, maintenance, or right of election, stayed all transfer of Edgar’s funds and property, and ordered that all property removed by Naciri from his residences be returned. The Appellate Division held that the Supreme Court was not divested of jurisdiction, as it is a court of general jurisdiction and can annul a marriage and void transactions after a party’s death in Mental Health Law actions (see Matter of Kaminester v. Foldes, 51 A.D.3d 528, 859 N.Y.S.2d 412 [1st Dept. 2008]). Neither was the successor guardian’s authority terminated in that short time frame, as she was appointed with all the statutory powers pursuant to Mental Hygiene Law § 81.21 and 81.22, which allowed her, among other things, to “defend or maintain any judicial action or proceeding to a conclusion until an executor or administrator is appointed” (Mental Hygiene Law § 81.21[a][20]). In any event, entry of judgment four days after Edgar’s death was a mere ministerial act because the court had already ruled on the record annulling the marriage and voiding the prenuptial agreement, and nothing remained to be resolved. The record demonstrated that Edgar, who was suffering from significant mental health issues and long-standing and worsening dementia, lacked the capacity to enter into either the prenuptial agreement or the marriage to Naciri, given the volume of medical records and testimony to that end. The trial court found that Naciri’s two witnesses lacked credibility. For the same reasons, it concluded that the trial court’s determination that Edgar lacked capacity to enter into the prenuptial agreement and marriage was proper. Where there is medical evidence of mental illness or defect, the burden shifts to the opposing party to prove by clear and convincing evidence that the person entering the agreements in question possessed the requisite mental capacity. Naciri failed to demonstrate that Edgar was competent at the time in question, as the testimony of the two witnesses she called was found to be not credible.
Appellate Division, Second Department
Although the Family Offense disposition was entered upon default Respondent could appeal from the denial of his attorney’s applications for an adjournment and to be relieved as counsel since the applications were the subject of contest in the Family Court.
In Matter of Onyiuke v Onyiuke, --- N.Y.S.3d ----, 2024 WL 3058145, 2024 N.Y. Slip Op. 03428 (2d Dept., 2024) Eisenhower failed to appear for a fact-finding hearing on the family offense petition. Eisenhower’s attorney made an application for an adjournment of the hearing and an application to be relieved as counsel. The Family Court denied the applications and conducted the hearing. Although Eisenhower’s attorney was present, he did not participate in the hearing and found he committed family offenses. The Appellate Division held that although the order of fact-finding and disposition was entered upon Eisenhower’s default Eisenhower could appeal from the denial of his attorney’s applications for an adjournment and to be relieved as counsel since the applications were the subject of contest in the Family Court.
June 19, 2024
First Department
The Issuance of an order of protection was appropriate despite the Petitioner’s delay of 17 months in filing the petition after the incident. The order of protection was valid despite the lack of a dispositional hearing
In Matter of N.V., v A. J., --- N.Y.S.3d ----, 2024 WL 3032709 (Mem), 2024 N.Y. Slip Op. 03339 (1st Dept.,2024) the Appellate Division held that the issuance of an order of protection was appropriate despite the Petitioner’s delay of 17 months in filing the petition after the incident. The petitioner’s delay was not inconsistent with the need for protection, and she testified that she commenced this proceeding shortly after learning that the respondent planned to move back to New York and reside in the apartment where she lived. Petitioner’s testimony that the respondent threw bleach water on her, causing the water to go into her eyes and onto her body, kicked her in the stomach, causing her to fall, and threw a bucket at her, supported the finding that respondent committed harassment in the second degree (Penal Law § 240.26[1]) and attempted assault (id. §§ 110.00, 120.00;). The testimony of the parties’ older sister that she smelled bleach and saw the bucket, the water on the floor, the petitioner’s discolored shoes, and the petitioner washing out her eyes corroborated the petitioner’s testimony. This “single incident was legally sufficient to support a finding of harassment in the second degree”. The Appellate Division also held that the order of protection was valid despite the lack of a dispositional hearing. There is no explicit statutory mandate that a dispositional hearing be conducted in proceedings under Family Court Act article 8, and the respondent never demanded or objected to the lack of, such a hearing before the Family Court.
Appellate Division, Third Department
The Appellate Divison rejected the wife’s challenges to the Supreme Court’s denial of spousal maintenance. The record reflected that the Supreme Court considered all relevant factors in determining that spousal maintenance was not appropriate here.
In Gardner v Gardner, --- N.Y.S.3d ----, 2024 WL 2963940, 2024 N.Y. Slip Op. 03205 (3d Dept., 2024) Plaintiff ( wife) and defendant ( husband) were married in 1999 and had three children (twins born in 2000 and a third born in 2002). The wife commenced this action in 2018, seeking a divorce. Pending trial, the parties entered a written stipulation which was incorporated in a February 2019 order of the Supreme Court. In relevant part, the stipulation provided that the parties would share legal custody of the youngest child with primary physical custody to the wife and that the wife’s yearly income was approximated to be $60,000 such that the husband agreed to pay the wife $750 per month in spousal maintenance pending resolution of the divorce action. In March 2022, following a trial, the court issued an order, as is pertinent here, imputing an annual income of $120,000 to the wife and determining that spousal maintenance was no longer warranted. The Appellate Division affirmed. It rejected the wife’s argument that the Supreme Court improperly imputed income to her beyond that previously stipulated to by the parties. The wife claimed that $60,000 accurately reflected her annual income. Supreme Court expressly discredited the wife’s representations as to her finances, finding that her trial testimony and related submissions were evasive and incredible. The record supported the court’s finding. Deferring to the court’s credibility determinations, there was no basis to find that the court abused its discretion in imputing an annual income of $120,000 to the wife. The Court rejected the wife’s challenges to the Supreme Court’s denial of spousal maintenance. The record reflected that the Supreme Court considered all relevant factors in determining that spousal maintenance was not appropriate here. The parties were married 19 years and raised three children together, and the wife acknowledged that they enjoyed a “very comfortable lifestyle.” Supreme Court found, and the record reflects, that there was no evidence to suggest that either party struggled to maintain their accustomed standard of living following their separation.
A newborn child must be considered to be a domiciliary of the domicile of her parents, who had sole legal, if not actual physical custody. Rensselaer County Family Court did not have the authority to reject the transfer from Schenectady County Family Court (see NY Const, art VI, § 19[h], [j]).
In the Matter of Norea CC.,--- N.Y.S.3d ----, 2024 WL 2964353, 2024 N.Y. Slip Op. 03211(3d Dept.,2024) the petitioner appealed from an order of the Family Court of Rensselaer County which, in two proceedings pursuant to Family Ct Act article 10, rejected a transfer from the Family Court of Schenectady County. Initially, the Appellate Divison noted that an order of transfer, and by affiliation, an order rejecting transfer, is not appealable to this Court as of right since it is not an order of disposition which is final, and the matter was not properly before the Court because respondents did not seek permission to appeal. Nevertheless, as this appeal involved a novel issue, the Court treated the notices of appeal as seeking permission to appeal and granted such permission (see Family Ct Act § 1112[a]]). It held that the family court may transfer any action or proceeding, other than one which has previously been transferred to it, to any other court, except the supreme court, having jurisdiction of the subject matter in any other judicial district or county provided that such other court has jurisdiction over the classes of persons named as parties” (N.Y. Const, art VI, § 19[h]). In child protective proceedings, the venue is proper in the county where the child resides or is domiciled at the time of the filing of the petition or in the county in which the person having custody of the child resides or is domiciled (Family Ct Act § 1015[a]]). Here, the newborn “child must be considered to be a domiciliary of Rensselaer County, since Rensselaer County was the domicile of her parents, who had sole legal, if not actual physical custody. Rensselaer County Family Court did not have the authority to reject the transfer from Schenectady County Family Court (see NY Const, art VI, § 19[h], [j]). The statute governing venue in a child protective proceeding is based on the domicile or residence of the custodians of the child and the child (see Family Ct Act § 1015). There is simply no basis for maintaining a proceeding in a county where neither of the parents nor the subject child reside. The order was reversed, and the matter was transferred to the Family Court of Rensselaer County for further proceedings not inconsistent with this Court’s decision.
Appellate Division, Fourth Department
An order incorporating a post-adoption contact agreement may be enforced by any party to the agreement, but the court need not enforce an order incorporating such an agreement unless it finds that the enforcement is in the child’s best interests
In Matter of Tricia A.C.,v. Saul H. and Julie H., --- N.Y.S.3d ----, 2024 WL 2986945, 2024 N.Y. Slip Op. 03242 (4th Dept., 2024) the petitioner appeals from orders that dismissed with prejudice her petitions seeking to enforce a post-adoption contact agreement with respect to her two biological children, who had been adopted by respondents. The agreement, which was incorporated into a judicial surrender of the petitioner’s parental rights to the subject children, provided, inter alia, that the petitioner shall be permitted a minimum of three visits per year with the children, with the petitioner being required to contact the adoptive parents three times each year to schedule those visitations. If the petitioner missed two scheduled visits in a row, she would lose her rights to future visitations unless she could prove that her failure to attend was the result of an emergency. The petitioner alleged in the petitions that respondents improperly refused her visitation. Following a fact-finding hearing, the Family Court dismissed the petitions on the grounds that the petitioner failed to have regular visitation with her children and that resuming visitation was not in the children’s best interests. The Appellate Division affirmed. It held that an order incorporating a post-adoption contact agreement may be enforced by any party to the agreement, but the court shall not enforce an order incorporating such an agreement unless it finds that the enforcement is in the child’s best interests” (Domestic Relations Law § 112-b [4]). Thus, this agreement should be enforced only if it is in the children’s best interests. Here, the evidence established that the petitioner made minimal and inconsistent efforts to schedule visits with the children and had not seen them for over two years. The evidence further established that the petitioner did not attend at least one scheduled visitation. The children’s treating psychologist opined at the hearing that it was not in the children’s best interests to resume contact with the petitioner. The court’s determination that it is not in the best interests of the children to resume visits with the petitioner was supported by a sound and substantial basis in the record.
Where an aggrieved parent in a custody and visitation proceeding under Family Court Act article 6 does not take or perfect an appeal, dismissal of an appeal by an AFC under the invoked case law is warranted only when it can be said that entertaining the appeal would force the aggrieved yet non-appellant parent to litigate a petition that they have since abandoned
In Matter of Muriel v. Muriel, --- N.Y.S.3d ----, 2024 WL 2987213, 2024 N.Y. Slip Op. 03296 (4th Dept., 2024) a proceeding seeking modification of the parties’ custody and visitation arrangement, the AFC for the younger sister, who supported the determination that the mother’s visitation remain supervised, contended that the appeal should be dismissed under the case law because the older child, while dissatisfied with the order, could not unilaterally pursue an appeal in the absence of a perfected appeal by the mother. The Appellate Division rejected that contention under the circumstances of this case. It held that where, as here, an aggrieved parent in a custody and visitation proceeding under Family Court Act article 6 does not take or perfect an appeal, dismissal of an appeal by an AFC under the invoked case law is warranted only when it can be said that entertaining the appeal would force the aggrieved yet non-appellant parent to litigate a petition that they have since abandoned (Matter of Kessler v. Fancher, 112 A.D.3d 1323, 1324, 978 N.Y.S.2d 501 [4th Dept. 2013]; see Matter of Lawrence v. Lawrence, 151 A.D.3d 1879, 1879, 54 N.Y.S.3d 358 [4th Dept. 2017]; see also Matter of Newton v. McFarlane, 174 A.D.3d 67, 73, 103 N.Y.S.3d 445 [2d Dept. 2019]). That could not be said in this case. The mother filed and served a notice of appeal but, after being denied poor person relief and assignment of counsel, the mother was unrepresented and unable to timely perfect her appeal. The mother nonetheless submitted a letter to the court explaining that, despite her inability to obtain assigned or pro bono counsel to perfect her appeal, she remained steadfast in her disagreement with the Family Court’s order. The mother expressed her support for the merits position taken by the AFC representing the older child. The mother also attempted to submit a brief in opposition to the brief of the AFC representing the younger sister, which was rejected on the ground that the mother was not an appellant. The mother subsequently moved for leave to file a brief wherein she reiterated her support for the position taken by the AFC representing the older child. Thus, it could not be said that entertaining the appeal by the AFC representing the older child would “force the mother to litigate a petition that she has since abandoned,” and under the circumstances of this case the appeal should not be dismissed.
Where an incarcerated parent has failed on more than one occasion while incarcerated to cooperate with an authorized agency in its efforts to assist such parent to plan for the future of the child diligent efforts to encourage and strengthen the parental relationship are not required
In Matter of Rodcliffe M., --- N.Y.S.3d ----, 2024 WL 2987208, 2024 N.Y. Slip Op. 03267 (4th Dept., 2024) a proceeding pursuant to Social Services Law § 384-b. Family Court’s determination of permanent neglect was based on the father’s failure to maintain contact with or plan for the future of the children during his incarceration. The Appellate Division affirmed an order that terminated respondent’s parental rights with respect to the subject children. It held that where, as here, an incarcerated parent has failed on more than one occasion while incarcerated to cooperate with an authorized agency in its efforts to assist such parent to plan for the future of the child (Social Services Law § 384-b [7] [e] [ii]), diligent efforts to encourage and strengthen the parental relationship are not required.
June 12, 2024
Absent circumstances where the alleged offending party admits that he or she committed the claimed family offense or consents to the issuance of an order of protection, a Family Court generally must hold a fact-finding hearing before issuing such an order of protection
In Matter of Acker v Teneyck, --- N.Y.S.3d ----, 2024 WL 2837237, 2024 N.Y. Slip Op. 03043 (2d Dept.,2024) the father commenced a family offense proceeding against the mother, seeking an order of protection in favor of him and the child. When the parties appeared for a conference, on the father’s petition, the Family Court, without conducting a hearing, issued an order of protection, in effect, granting the father’s petition for an order of protection and directing the mother, among other things, to stay away from the father and the child, except for court-ordered parental access with the child. The Appellate Division reversed the order of protection and remitted the matter to the Family Court, before a different judge, to conduct a hearing on the father’s petition and to issue a new determination. It observed that pursuant to Family Court Act § 154–c(3)(ii), a court may not issue an “order of protection directing any party to observe conditions of behavior unless, inter alia, it has made a finding on the record that the party requesting the order of protection is entitled to issuance of the order. Such a finding on the record “may result from a judicial finding of fact, judicial acceptance of an admission by the party against whom the order was issued, or judicial finding that the party against whom the order is issued has given knowing, intelligent, and voluntary consent to its issuance. Absent circumstances where the alleged offending party admits that he or she committed the claimed family offense or consents to the issuance of an order of protection, a Family Court generally must hold a fact-finding hearing before issuing such an order (see Family Ct Act §§ 154–c[3]). Moreover, in granting or denying a petition for an order of protection, the court must state the facts deemed essential to its determination. Although a Family Court can issue a temporary order of protection on its own motion and, in so doing, it not required to follow all of the ordinary procedural requirements” of Family Ct Act § 154–c(3), the court is required to observe those procedural steps when issuing “a final order of protection. Here, the Family Court improperly issued an order of protection without holding a fact-finding hearing to determine whether the mother committed the family offenses alleged in the father’s petition. Nor did it obtain an admission from the mother that she committed such family offenses or secure her consent to the issuance of the order of protection. The court therefore failed to observe the procedural steps set forth in Family Ct Act § 154–c(3) before issuing that order. Since a fact-finding hearing was not held and the court otherwise rendered its determination without receiving any evidence demonstrating that the mother committed the alleged family offenses, the record was not sufficient for the Appellate Division to render an independent determination on that question.
A parent’s mere use of illicit drugs, without more, is insufficient to support a finding of neglect. Nor will the presence of illicit drugs in the home where the child resides be sufficient, standing alone, to support a finding of neglect.
In Matter of Jefferson C.-A., --- N.Y.S.3d ----, 2024 WL 2165805, 2024 N.Y. Slip Op. 02701 (2d Dept.,2024) while executing a search warrant, police officers discovered cocaine in a bedroom of an apartment in a house where the father resided with the mother and children. The Department of Social Services) commenced proceedings alleging that the father neglected the children by possessing the cocaine and storing it in a location where “the children had easy access to it. Family Court found that the father neglected the children. The Appellate Division reversed. It observed that a court may issue a finding of neglect in various circumstances involving the possession, use, or sale of illegal narcotics. For example, such a finding may be warranted where there is proof of a parent’s repeated drug use in a manner sufficient to constitute prima facie evidence of neglect pursuant to Family Court Act § 1046(a)(iii). Further, evidence demonstrating that a parent stored drugs within the home in a location that was “readily accessible” to a child may be sufficient to support a finding of neglect. Similarly, a neglect finding may be based upon evidence establishing that a parent exposed a child to the very dangerous activity of narcotics trafficking, including, inter alia, evidence that the parent packaged and sold narcotics in the presence of the child, resided with the child in a home in which narcotics transactions were taking place, or traveled with the child to an arranged drug transaction. By contrast, a parent’s mere use of illicit drugs, without more, is insufficient to support a finding of neglect. Nor will the presence of illicit drugs in the home where the child resides be sufficient, standing alone, to support a finding of neglect. In either scenario, a neglect finding will not be warranted absent evidence that the child suffered the requisite impairment, or that he or she was in imminent danger of suffering such impairment, as a result of the parent’s conduct. It found that here, the Family Court’s finding that the father neglected the children was not supported by a preponderance of the evidence. The record contained sufficient evidence for the court to infer that he intended to sell the cocaine that the officers found in his apartment, which weighed approximately four ounces. Nonetheless, his intent to sell these illicit drugs was insufficient, without more, to warrant a finding of neglect. The record contained no evidence establishing that the father engaged in drug transactions within the house or that he otherwise exposed the children to drug-trafficking activities. Nor was there evidence adduced at the hearing as to whether the father regularly engaged in the sale of drugs, or the manner in which he intended to sell the cocaine. Moreover, although the officers discovered the cocaine within the father’s bedroom closet, it was located on a five- or six-foot-high shelf and was otherwise stored in a manner that was not readily accessible to the children. Finally, there was no indication in the record that the father ever used cocaine or any other illicit drugs. Absent evidence that the father’s conduct caused the requisite harm to the children or otherwise placed them in imminent danger of such harm, the court should not have found that he neglected them.
The court cannot delegate its authority to determine parenting time to either a parent or a child
In Matter of Theressa M., v. Gaddiel M., --- N.Y.S.3d ----, 2024 WL 2853841, 2024 N.Y. Slip Op. 03115 (3d Dept.,2024) the Family Court granted the parties joint legal custody with the mother having primary physical custody and final decision-making authority. Family Court also provided the mother with the “sole discretion ... to determine the parenting time the father will have.” Family Court’s written order provided that the father “shall have parenting time with the children at such times and places and under such conditions determined by the mother.” The Appellate Division held that the court cannot delegate its authority to determine parenting time to either a parent or a child. It modified the order by reversing that part of it that related to the father’s parenting time and remitted the matter for further proceedings not inconsistent with its decision.
June 5, 2024
First Department
An alienation defense is not available in proceedings under UIFSA. FCA § 580–305(d) expressly bars the court, as a responding tribunal, from conditioning the payment of support based on the party’s compliance with visitation orders
In Matter of Yakov T., v. Tracy S., --- N.Y.S.3d ----, 2024 WL 2751998, 2024 N.Y. Slip Op. 03000 (1st Dept.,2024) a child support proceeding the Appellate Division affirmed a child support order entered on the mother’s default. which determined that the mother’s child support obligation/ It observed that although a party’s failure to appear at the hearing may not automatically result in a default, particularly where the absent party had an attorney who appeared, explained the client’s absence, and stated that he or she was authorized to proceed in the party’s absence, this was not the case here. Although the mother’s attorney was present on June 7, she informed the court that she had not been in contact with the mother, save for a single call the prior day at which time the mother told her that she would not be appearing in court the next day, and requested to be relieved. The mother’s claim that she was unaware that she needed to appear for the hearing on June 7 is not a reasonable excuse for her default. The record demonstrates that she and her attorney were present in court when the date was selected. Furthermore, the mother presented no evidence as to what measures she took to ensure that she was kept apprised as to when the hearing would commence or to confirm that the hearing was still scheduled on June 7 by contacting her attorney or the court. Moreover, the record was clear that the mother knew that the hearing was set to move forward on June 7 because she was advised of this fact by her attorney. The Appellate Division held that the Family Court properly determined that the mother failed to demonstrate a meritorious defense, as an alienation defense is not available in proceedings under the Uniform Interstate Family Support Act. Family Court Act § 580–305(d) expressly bars the court, as a responding tribunal, from conditioning the payment of support based on the party’s compliance with visitation orders (see Matter of Nicholas A. v. Jessica T., 65 Misc.3d 365, 108 N.Y.S.3d 290 [Fam. Ct., Chemung County 2019]).
Second Department
A custodial parent’s interference with the relationship between a child and the noncustodial parent is deemed an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending party is unfit to act as custodial parent
In Matter of Duran v. Contreras, --- N.Y.S.3d ----, 2024 WL 2740001, 2024 N.Y. Slip Op. 02912 (2d Dept.,2024) the Appellate Division observed, inter alia, that a custodial parent’s interference with the relationship between a child and the noncustodial parent is deemed an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending party is unfit to act as custodial parent. The Supreme Court’s determination awarding the mother sole legal and physical custody of the child, which was based upon, inter alia, the assessment of the testimony of the mother, the father, and a forensic evaluator, had a sound and substantial basis in the record. The record established, among other things, that the father interfered with the relationship between the mother and the child by making false allegations to the Administration for Children’s Services (ACS) and by encouraging the child to lie to ACS, so as to raise a strong probability that he was unfit to act as custodial parent. Moreover, the record established that the father’s numerous unfounded allegations of abuse and neglect undermined the mother’s attempts to form and maintain a relationship with the child and that the investigations associated with the father’s allegations were traumatic for the child. Furthermore, the Supreme Court was required to, and properly did, consider the deleterious effect on the child of the acts of domestic violence committed by the father against the mother in the home, as those allegations were proven by a preponderance of the evidence.
Failing to specify the sum that the plaintiff owed to the trust in the stipulation did not render the stipulation an unenforceable agreement to agree
In Weitz v Weitz, --- N.Y.S.3d ----, 2024 WL 2739896, 2024 N.Y. Slip Op. 02947 (2d Dept.,2024) during the marriage, a trust was created by the plaintiff’s parents for the benefit of the parties’ children. The plaintiff commenced an action for a divorce in November 2014. On November 19, 2019, the parties appeared in the Supreme Court and placed a partial stipulation of settlement which provided inter alia, that the plaintiff was to reimburse the trust “the full amount of what was taken from that trust during the pendency of this action.” On January 30, 2020, the court so-ordered the transcript of the November 19, 2019 court appearance. A judgment of divorce was entered on March 11, 2021. The judgment of divorce provided, inter alia, that the stipulation would survive and not be merged into the judgment of divorce. In October 2021, the defendant moved, inter alia, to direct the plaintiff to deposit into the trust a sum equal to the amount that he withdrew from the trust during the pendency of the divorce action. The plaintiff opposed the defendant’s motion. Supreme Court, among other things, in effect, granted the defendant’s motion. The Appellate Division affirmed. It held that the record demonstrated that the parties validly entered into the stipulation by which the plaintiff knowingly, voluntarily, and intelligently agreed to be bound. Contrary to the plaintiff’s contention, failing to specify the sum that the plaintiff owed to the trust in the stipulation did not render the stipulation an unenforceable agreement to agree (see LMEG Wireless, LLC v. Farro, 190 A.D.3d 716, 718–719, 140 N.Y.S.3d 593; Omar v. Rozen, 55 A.D.3d 705, 706, 867 N.Y.S.2d 458).
Under the FFCCSOA and UIFSA the state issuing a child support order retains continuing, exclusive jurisdiction over its child support orders so long as an individual contestant continues to reside in the issuing state
In Isenberg v Isenberg, --- N.Y.S.3d ----, 2024 WL 2739605, 2024 N.Y. Slip Op. 02916 (2d Dept.,2024) the parties were divorced in June 2019 by a judgment of divorce of the Superior Court of New Jersey, which incorporated a memorandum of understanding and a custody and parenting plan ( New Jersey judgment). The father subsequently commenced this proceeding in the Family Court, Rockland County, seeking, inter alia, to modify the New Jersey judgment to award him child support for one of the parties’ children. The Support Magistrate dismissed the father’s petition, and the Family Court, among other things, denied the father’s objection on the ground that the New Jersey court had continuing, exclusive jurisdiction over the matter. The Appellate Division affirmed. It noted that under the Full Faith and Credit for Child Support Orders Act and the Uniform Interstate Family Support Act, “the state issuing a child support order retains continuing, exclusive jurisdiction over its child support orders so long as an individual contestant continues to reside in the issuing state” (Matter of Spencer v. Spencer, 10 N.Y.3d 60, 66; see 28 USC § 1738B[d]; cf. Family Ct Act § 580–205). “[A] state may modify the issuing state’s order of child support only when the issuing state has lost continuing, exclusive jurisdiction”. In this context, a “modification” is defined to mean “a change in a child support order that affects the amount, scope, or duration of the order and modifies, replaces, supersedes, or otherwise is made subsequent to the child support order” (28 USC § 1738B[b][8]). The father was a permanent resident of the State of New Jersey. Therefore, the Family Court correctly determined that New Jersey retained continuing, exclusive jurisdiction of the New Jersey judgment, and New York does not have jurisdiction to modify it.
Father entitled to modification of child support to $0 where evidence was adduced at the hearing demonstrating that the father had been unable to work and that his sole sources of income were Supplemental Nutrition Assistance Program benefits and possibly, in the future, Supplemental Security Income
In Matter of Camacho v. Leggio, --- N.Y.S.3d ----, 2024 WL 2737697, 2024 N.Y. Slip Op. 02910 (2d Dept.,2024) after he father sustained injuries to his shoulder in an accident he filed a petition for a downward modification of his child support obligation as set forth in an order of support. The mother filed a petition alleging that the father willfully violated the order of support. After a hearing, the Support Magistrate granted the father’s petition and, denied the mother’s petition. The Support Magistrate found that there had been a substantial change in circumstances warranting a downward modification of the father’s child support obligation and reduced the father’s child support obligation to $0 per week. Family Court denied the mother’s objections. The Appellate Division affirmed. It found that the record supported the Support Magistrate’s determination that a substantial change in circumstances had occurred, warranting a downward modification of the father’s child support obligation. Evidence was adduced at the hearing demonstrating that the father had been unable to work and that his sole sources of income were Supplemental Nutrition Assistance Program benefits and possibly, in the future, Supplemental Security Income. It noted that proof of failure to pay child support as ordered constitutes prima facie evidence of willful violation of an order of support’ ” Here, the father conceded that he stopped paying child support after his accident left him unable to work. The burden then shifted to the father to offer some competent, credible evidence that his failure to pay child support in accordance with the order of support was not willful. The father submitted sufficient medical evidence to substantiate his assertion that he was unable to work due to medical impairments. Under the circumstances of this case, the father’s showing was sufficient to establish that his failure to pay child support was not willful.
A party seeking to vacate the registration of a foreign support order has the burden of proving one or more of eight enumerated defenses (Family Ct Act § 580–607[a]). To the extent that the father contended that his consent to the foreign order was based on a mistake, his remedy was to move to vacate or resettle the order in the courts of Israel.
In Matter of Rotem v. Mancini, --- N.Y.S.3d ----, 2024 WL 2739940, 2024 N.Y. Slip Op. 02919 (2d Dept.,2024) the parties had one child together. On July 18, 2019, a court in Israel issued an order of child support ( foreign order) obligating the father to make monthly payments to the mother. On March 13, 2020, the foreign order was registered in the Family Court, pursuant to article 5–B of the Family Court Act. The father moved to remove the matter to the Supreme Court and to vacate the registration of the foreign order. Supreme Court, inter alia, denied the father’s motion. The Appellate Division affirmed. It observed that New York adopted the Uniform Interstate Family Support Act (hereinafter UIFSA) as article 5–B of the Family Court Act. Under the UIFSA, “[a] support order or income withholding order issued in another state or a foreign support order may be registered in this state for enforcement” (Family Ct Act § 580–601). A foreign support order means “a support order of a foreign tribunal” (§ 580–102[6]), which is “a court, administrative agency or quasi-judicial entity of a foreign country which is authorized to establish, enforce or modify support orders, or to determine parentage of a child” ( § 580–102[7]). A foreign country includes a country “which has been declared under the law of the United States to be a foreign reciprocating country” ( § 580–102[5][i]), which includes Israel. A party contesting the validity or enforcement of a registered support order or seeking to vacate the registration has the burden of proving one or more of” eight enumerated defenses (Family Ct Act § 580–607[a]). These defenses include that “there is a defense under the law of this state to the remedy sought ” (Family Ct Act § 580–607[a][5]). If the contesting party does not establish a defense, “the registering tribunal shall issue an order confirming the order” (§ 580–607[c]). The Appellate Division found that the father failed to allege or establish any of the enumerated defenses pursuant to Family Court Act § 580–607(a). To the extent that the father contended that his consent to the foreign order was based on a mistake, his remedy was to move to vacate or resettle the order in the courts of Israel.
May 29, 2024
Second Department
Supreme Court improvidently exercised its discretion in declining to award the defendant postjudgment maintenance where defendant had no work experience, as she and the plaintiff jointly decided that she would be a stay-at-home mother and homemaker. Counsel Fees denied where defendant had not demonstrated compliance with 22 NYCRR 1400.3.
In Rigas v Rigas, --- N.Y.S.3d ----, 2024 WL 2307453, 2024 N.Y. Slip Op. 02829
(2d Dept.,2024) the parties married in 1999 and had three children together. The plaintiff commenced the action for a divorce in 2011. Following a nonjury trial, the Supreme Court, inter alia, awarded the defendant 20% of the appreciation in value of the plaintiff’s business, ARC Electrical & Mechanical Contractors Corp. (ARC), from the date of marriage to the date of commencement of the action. The court directed the plaintiff to pay basic child support of $8,307.31 per month and 100% of the children’s add-on expenses, and awarded the defendant no maintenance or attorneys’ fees. The Appellate Division held that the Supreme Court providently exercised its discretion in crediting the court-appointed business appraiser’s valuation of ARC and awarding the defendant 20% of the appreciation in ARC’s value from the date of marriage to the date of commencement of the action. The court’s valuation of ARC rested primarily on its determination to credit the court-appointed business appraiser rather than the appraiser retained by the defendant. This determination is entitled to deference on appeal.
The Appellate Division found that the Supreme Court improvidently exercised its discretion in declining to award the defendant postjudgment maintenance (see Kaufman v. Kaufman, 189 A.D.3d at 69, 133 N.Y.S.3d 54). The defendant had no work experience, as she and the plaintiff jointly decided that she would not work but would instead be a stay-at-home mother and homemaker. The defendant had a college degree. It held that the court should have awarded the defendant maintenance for a period of 24 months from the date of the judgment of divorce to allow her to become self-supporting. It modified the judgment awarding the defendant maintenance of $8,000 per month for a period of 24 months from the date of the judgment of divorce, or, if earlier, until her remarriage or the death of either party.
The Appellate Division held that the Supreme Court did not improvidently exercise its discretion in declining to award the defendant attorneys’ fees. The court correctly, in effect, found that the defendant had not demonstrated compliance with 22 NYCRR 1400.3. The papers submitted in support of the defendant’s request for an award of attorneys’ fees revealed that her trial counsel charged rates that exceeded those set forth in the retainer agreement, with no evidence that the defendant had signed a written amendment to the retainer agreement setting forth those higher rates (see 22 NYCRR 1400.3[7]). Trial counsel also billed the defendant for appellate work, which the retainer agreement expressly excluded from the “[n]ature of the services” to be provided (id. § 1400.3[2]; . Moreover, because the invoices were heavily redacted and provided only vague descriptions of the work performed, there was no way to determine from the defendant’s submissions whether other line items were for appellate work. Finally, trial counsel did not provide itemized bills “at least every 60 days” on numerous occasions (22 NYCRR 1400.3[9]). Accordingly, the defendant did not demonstrate, prima facie, “substantial compliance” with 22 NYCRR 1400.3, and as such, the court correctly declined to award her attorneys’ fees.
The Supreme Court improvidently exercised its discretion in directing the sale of the marital residence without providing the plaintiff with an option to purchase the defendant’s interest and in failing to award the plaintiff a separate property credit with respect to the purchase of the marital residence.
In Jones v Jones, --- N.Y.S.3d ----, 2024 WL 2307392, 2024 N.Y. Slip Op. 02805 (2d Dept.,2024) the parties were married on August 7, 1987. Prior to the marriage, the plaintiff acquired real property that became the parties’ marital residence. On June 25, 1987, less than two months before the parties were married, the plaintiff encumbered that property with a mortgage in the amount of $90,000. On April 23, 2007, after the mortgage on the marital residence was satisfied, the plaintiff added the defendant’s name to the deed to the marital residence. The plaintiff commenced this action for a divorce and ancillary relief in June 2015. The Appellate Division held that placing the marital residence in both parties’ names changed the character of the previously separate property to marital property. However, where a party contributes his or her separate property towards the purchase of a marital asset, such as a marital residence, the party should be awarded a credit for the amount so contributed prior to the equitable division of the asset. The Appellate Division held that the Supreme Court improvidently exercised its discretion in failing to award the plaintiff a separate property credit with respect to the purchase of the marital residence. However, it rejected the plaintiff’s argued that he was entitled to a separate property credit for the entire value of the marital residence as of the date he added the defendant’s name to the deed to the marital residence. Under the equitable distribution statute, separate property is defined to include an increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse. Thus, any appreciation in the value of separate property due to the contributions or efforts of the nontitled spouse will be considered marital property. This includes any direct contributions to the appreciation, as well as when the nontitled spouse makes direct nonfinancial contributions, such as by personally maintaining, making improvements to, or renovating a marital residence” In addition, under certain circumstances, appreciation, to the extent it was produced by the efforts of the titled spouse, should be considered a product of the marital partnership and, hence, marital property. Given the defendant’s contribution to the marital residence, financial and otherwise, during the period between the parties’ marriage in 1987 and 2007, when title to the martial residence was transferred to both parties, the appreciation of the value of the marital residence during that period constituted marital property. Supreme Court should have utilized the appraised value of the marital residence as of the time of the marriage, which was $140,000, and subtracted the amount of the mortgage on the marital residence as of the time of the marriage, which the parties do not dispute was $90,000, to arrive at the amount of the plaintiff’s separate property credit with respect to the purchase of the marital residence, which was $50,000.
The Appellate Division held Supreme Court erred in not equitably distributing the marital residence. Where, as here, both spouses have made significant contributions to a marriage of long duration, the division of marital property should be as equal as possible. Given the 28–year duration of the marriage, the age and health of the parties, and the court’s determination that the marriage was a “joint enterprise” where the parties “pooled their interests for their mutual benefit,” an award to each party of 50% of the appraised value of the marital residence as of the time of trial of $350,000, after the plaintiff’s separate property credit is subtracted from that amount, was warranted.
The Appellate Division held that the Supreme Court improvidently exercised its discretion in directing the sale of the marital residence without providing the plaintiff with an option to purchase the defendant’s interest therein. It modified the judgment to provide plaintiff the option to purchase the defendant’s interest in the marital residence.
The Appellate Division held that considering the overall financial circumstances of the parties and the circumstances of the case as a whole, the Supreme Court providently exercised its discretion in declining to award the plaintiff attorneys’ fees.
Where the parties so-ordered stipulation provided that “[e]ach party shall be responsible for their own counsel fees” sanctions were properly granted on the ground that the defendant unnecessarily delayed the action by bringing her motion for interim counsel fees
In Neckles v Neckles, --- N.Y.S.3d ----, 2024 WL 2307371 (Mem), 2024 N.Y. Slip Op. 02824 (2d Dept.,2024) an action for a divorce the parties settled all issues except the equitable distribution of the plaintiff’s retirement accounts. The defendant then moved for an award of interim counsel fees for trial purposes. The plaintiff cross-moved, pursuant to 22 NYCRR 130–1.1 for sanctions on the ground that the defendant unnecessarily delayed the action. The Supreme Court, denied the defendant’s motion and granted the plaintiff’s cross-motion to the extent of awarding the plaintiff attorneys’ fees of $2,500. The Appellate Division affirmed. It noted that in a December 2020 so-ordered stipulation, the parties agreed that “[e]ach party shall be responsible for their own counsel fees.” Thus, Supreme Court providently exercised its discretion in awarding the plaintiff attorneys’ fees on the ground that the defendant unnecessarily delayed the action by disregarding the December 2020 so-ordered stipulation in bringing her motion for interim counsel fees.
Where custody hearing, which commenced in May 2014, did not conclude until March 2021, the Appellate Division pointed out that the courts may not deny the natural parent’s persistent demands for custody simply because it took so long.
In Matter of Teofilo R.F. v. Tanairi R.F. --- N.Y.S.3d ----, 2024 WL 2307444, 2024 N.Y. Slip Op. 02814(2d Dept.,2024) in October 2012, the mother, who resided in Georgia, was arrested for driving with a suspended driver license and incarcerated. As a result, the mother requested that the maternal grandmother and the maternal uncle, who resided in Brooklyn, be given temporary custody of the child Blessin F., as well as two of her other children, Keith F. and Keleill F., respectively, until her release from jail so that they would not be placed in foster care. In an order dated October 8, 2012, the Juvenile Court in Georgia placed Keith F., Keleill F., and Blessin F. in the maternal grandmother’s temporary custody pending further orders in New York. The Georgia order was to remain in effect until an order was entered in New York. Thereafter, the father of the child Frank T., Jr., requested that the maternal grandmother and the maternal uncle also take Frank T., Jr., to Brooklyn to care for him while the mother was incarcerated. On October 16, 2012, the maternal grandmother filed a petition in the Family Court, for guardianship of Blessin F. In November 2012, after her release from jail, the mother contacted the maternal grandmother with regard to returning the children to her care and custody. The maternal grandmother told the mother that she would have to go to court for the return of the children. The mother traveled to New York to pick up Frank T., Jr., who was not a subject of the Georgia order. The next day, the maternal grandmother filed a petition for custody of Frank T., Jr., in the Family Court and denied the mother’s request to return Frank T., Jr., to the mother’s care and custody. In February 2013, the maternal uncle filed a petition for guardianship of Blessin F. The court, inter alia, issued temporary orders appointing the maternal grandmother as the guardian of Blessin F. and awarding custody of Frank T., Jr., to the maternal grandmother. The mother’s motion to vacate the temporary orders was denied. The mother filed a petition,, for custody of Blessin F. and Frank T., Jr. A hearing on the parties’ respective petitions commenced in 2014 and did not conclude until 2021. After the conclusion of the hearing the court, inter alia, determined that extraordinary circumstances existed to confer standing on the maternal grandmother and the maternal uncle to seek guardianship and custody of Blessin F. and Frank T., Jr., appointed the maternal grandmother and the maternal uncle as guardians of Blessin F., awarded the maternal grandmother and the maternal uncle joint physical and legal custody of Frank T., Jr., and directed that the mother’s parental access with Blessin F. and Frank T., Jr., take place in Brooklyn on the first two Saturdays of each month. The Appellate Division reversed and awarded custody to the mother. It held that the Family Court’s determination was not supported by a sound and substantial basis in the record (see Domestic Relations Law § 72). The evidence failed to establish that the mother voluntarily relinquished care and control of Blessin F. and Frank T., Jr., for an extended period of time. The record evidences that the mother’s intention was for Blessin F. and Frank T., Jr., to reside with the maternal grandmother and the maternal uncle only temporarily during her brief period of incarceration so as to prevent them from being placed in foster care, and that the children would be returned to the mother’s care and custody as soon as she was released. The hearing testimony demonstrated that from the time the mother was released from her brief period of incarceration in November 2012, she has continued to attempt to regain custody of Blessin F. and Frank T., Jr., she immediately went to Brooklyn when she was released, she made a motion to vacate the temporary orders of guardianship and custody, and she filed a petition, inter alia, for custody of Blessin F. and Frank T., Jr. Moreover, during the proceedings, the mother continued to have supervised and unsupervised parental access with Blessin F. and Frank T., Jr., as permitted by the court, in Brooklyn, although she was still residing in Georgia with her other young children. Additionally, the prolonged separation between the mother and Blessin F. and Frank T., Jr., occurred during the mother’s attempts to regain custody during these protracted proceedings, and, thus, the extended disruption of custody did not amount to an extraordinary circumstance. When the maternal grandmother and the maternal uncle first filed petitions for guardianship and custody between October 2012 and February 2013, Blessin F. and Frank T., Jr., had only been residing with them for, at most, a few months; however, the hearing, which commenced in May 2014, did not conclude until March 2021, almost seven years later. It pointed out that the courts may not deny the natural parent’s persistent demands for custody simply because it took so long. (Matter of Male Infant L., 61 N.Y.2d 420, 429, 474 N.Y.S.2d 447, 462 N.E.2d 1165).
May 22, 2024
Second Department
When a pendente lite award of maintenance is found at trial to be excessive or inequitable, the Court may make an appropriate adjustment in the equitable distribution award.
In Habib v Habib, 2024 WL 2165670 (2d Dept.,2024) the parties were married in 1973 and had two adult children. The plaintiff commenced this action for a divorce in May 2011. After a nonjury trial Supreme Court, among other things, awarded the plaintiff maintenance of $1,500 per month retroactive to the date the parties executed a stipulation dividing six parcels of real property, awarded the plaintiff counsel fees of $25,000. The Appellate Division held that Supreme Court providently exercised its discretion in awarding the plaintiff maintenance in the sum of $1,500 per month. However, since the permanent maintenance award is not in excess of the Supreme Court’s temporary maintenance award, the court erred in directing that the maintenance award be made retroactive to the date the parties executed the stipulation dividing the six parcels of real property. It noted that the Domestic Relations Law provides that, “[i]n determining an equitable disposition of property ..., the court shall consider: ... any award of maintenance” (Domestic Relations Law § 236[B][5][d][6]). When a pendente lite award of maintenance is found at trial to be excessive or inequitable, the Court may make an appropriate adjustment in the equitable distribution award. Here, in a pendente lite order, the Supreme Court awarded the plaintiff temporary maintenance of $2,919 per month, and the court’s permanent award of maintenance was $1,500 per month. It held that given the disparity in the maintenance amounts, the defendant should be given a credit for the monthly pendente lite payments he made in excess of $1,500 from the date the parties executed the stipulation dividing the six parcels of real property to the date of the entry of the judgment of divorce (see Johnson v. Chapin, 12 N.Y.3d at 466, 881 N.Y.S.2d 373, 909 N.E.2d 66). The Appellate Division further held that the Supreme Court providently exercised its discretion in awarding the plaintiff counsel fees of $25,000.
May be appropriate in custody case to give each party decision-making authority in separate areas where antagonistic relationship exists .
In Matter of Mahoney v Hughes, --- N.Y.S.3d ----, 2024 WL 2165754, 2024 N.Y. Slip Op. 02707 (2d Dept.,2024) the Appellate Division held, inter alia, that when an antagonistic relationship exists between the parties, it may be appropriate, depending upon the particular circumstances of the case, to give each party decision-making authority in separate areas .
Foster parents were persons legally responsible for the care of the child where evidence demonstrated that the child, eight years old at the time of the foster parents’ application for a hearing pursuant to Family Court Act § 1028, had been under the foster parents’ care for most of his life.
In Matter of Samson R., --- N.Y.S.3d ----, 2024 WL 2165827, 2024 N.Y. Slip Op. 02710 (2d Dept.,2024) in November 2015, the subject child was found to be neglected by his parents and placed in the custody of his maternal aunt, nonparty Laurie H. In November 2017, the child was returned to the father’s custody under the supervision of the Department of Social Services ( DSS). In July 2018, the child was again placed in the custody of Laurie H. Thereafter, in May 2021, the child was placed in DSS’s legal custody while he remained placed in the care of his foster care parents, Laurie H. and her paramour, nonparty Steven J.. In February 2023, DSS removed the child from the care of the foster parents and sought to place him in a qualified residential treatment program. The foster parents filed an application, inter alia, for a hearing pursuant to Family Court Act § 1028 to determine whether the child should be returned to their care. Family Court granted DSS’s motion to dismiss the application on the ground that the foster parents lacked standing to seek a hearing pursuant to Family Court Act § 1028. The Appellate Division reversed. It observed that Family Court Act § 1028(a) provides that “[u]pon the application of the parent or other person legally responsible for the care of a child temporarily removed under this part ..., the court shall hold a hearing to determine whether the child should be returned,” with two exceptions not relevant here. Family Court Act § 1028(a) further provides that “[e]xcept for good cause shown, such hearing shall be held within three court days of the application and shall not be adjourned.” The phrase “person legally responsible” “includes the child’s custodian, guardian, [or] any other person responsible for the child’s care at the relevant time (Family Ct Act § 1012[g]). The Court of Appeals, in interpreting Family Court Act § 1012(g), has held that ‘the common thread running through the various categories of persons legally responsible for a child’s care is that these persons serve as the functional equivalent of parents. Further, a person may act as the functional equivalent of a parent even though that person assumes temporary care or custody of a child, as long as the care given the child is analogous to parenting and occurs in a household or ‘family’ setting” (Matter of Yolanda D., 88 N.Y.2d at 796,). Factors to be considered in determining whether an applicant is a person legally responsible for the care of a child include ‘(1) the frequency and nature of the contact, (2) the nature and extent of the control exercised by the [applicant] over the child’s environment, (3) the duration of the [applicant’s] contact with the child, and (4) the [applicant’s] relationship to the child’s parent(s). Matter of Trenasia J. [Frank J.], 25 N.Y.3d 1001, 1004).The evidence in the record was sufficient to support a determination that the foster parents were persons legally responsible for the care of the child. The evidence demonstrated that the child, eight years old at the time of the foster parents’ application, had been under the foster parents’ care for most of his life. As the foster parents acted as the functional equivalent of the child’s parents for an extended period of time, they qualified as persons legally responsible for the care of the child (see Matter of Kavon A., Jr. [Kavon A.], 192 A.D.3d at 1098–1099, 145 N.Y.S.3d 115). Thus, the foster parents were entitled to a hearing pursuant to Family Court Act § 1028.
Proof of a parent’s repeated misuse of a drug will not constitute prima facie evidence of neglect where he or she was voluntarily and regularly participating in a drug rehabilitative program before the neglect petition was filed. In those circumstances, evidence establishing that the child’s physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired is required to establish neglect, even where the parent “has repeatedly misused a drug
In Matter of Kaira K., 2024 WL 1645157 (2d Dept.,2024) a neglect proceeding the Appellate Division held that a parent or caretaker may be found to have neglected a child by failing to supply the child with adequate shelter based on the unsanitary, deplorable, or otherwise unsafe conditions of the home” since “such conditions necessarily imply an imminent danger of impairment to the child’s health. However, evidence showing that a child’s home was in a state of disarray and was generally messy is generally insufficient to warrant a finding of neglect, absent “evidence of unsanitary or unsafe conditions. Moreover, evidence of unsanitary or unsafe conditions may not be sufficient to warrant a finding of neglect where, for example, the record demonstrates that the conditions were temporary in nature and improved over time. ]Here, contrary to the mother’s contention, the evidence adduced at the fact-finding hearing established that the mother maintained the childrens home in a deplorable and unsanitary condition. The evidence demonstrated, among other things, that the conditions of the children’s home over an extended period of time included garbage and soiled diapers strewn about, old food and fast-food containers left in the kitchenette area, spilled liquids in the refrigerator that went unremedied, and soiled bed sheets. Further, the evidence established that, at times, the children appeared malodorous and unbathed, and that the mother declined a suggestion to obtain a storage unit at no cost to her. Family Court properly concluded that the mother neglected the children by failing to provide them with adequate shelter.
The Appellate Division observed that pursuant to Family Court Act § 1046(a)(iii), proof that a person repeatedly misuses a drug, under certain circumstances, constitutes prima facie evidence that a child of ... such person is a neglected child” Specifically, “proof that a person repeatedly misuses a drug or drugs or alcoholic beverages, to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence,” among other things, “shall be prima facie evidence that a child of ... such person is a neglected child”. In cases where this presumption of neglect is triggered, the petitioner is not required to establish that the child suffered actual harm or was at imminent risk of harm. However, proof of a parent’s repeated misuse of a drug will not constitute prima facie evidence of neglect in circumstances where he or she “as voluntarily and regularly participating in a drug rehabilitative program before the neglect petition was filed. In those circumstances, evidence establishing that the child’s physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired is required to establish neglect, even where the parent “has repeatedly misused a drug (Matter of Keira O., 44 A.D.3d 668, 670]). In any event, when the presumption is triggered, it is not rebutted by a showing that the children were never in danger and were always well kept, clean, well fed, and not at risk . Moreover, the sole fact that an individual consumes cannabis, without a separate finding that the child’s physical mental or emotional condition was impaired or is in imminent danger of becoming impaired established by a fair preponderance of the evidence. shall not be sufficient to establish prima facie evidence of neglect” (Family Court Act § 1046[a][iii]). ACS presented a prima facie case of neglect based on evidence that the mother repeatedly tested positive for cocaine. Since the evidence at the fact-finding hearing did not show that the mother was voluntarily and regularly participating in a drug rehabilitation program before the petitions were filed, and instead indicated that she had declined ACS’s referral to a substance abuse counselor shortly after the petitions were filed, the mother failed to rebut ACS’s prima facie showing of neglect. Therefore, the Family Court correctly determined that the mother neglected the children by repeatedly misusing a drug.
Family Court
The Family Court Act requires the qualifying relationship to exist at the time of the family offense and at the time of filing.
In Matter of Y.M., v. D.S., 2024 WL 2282958 Unreported Disposition (Fam Ct., 2024) on July 10, 2022, the petitioner Y. M. filed a family offense petition against the respondent D. S. The petition alleged that the respondent was the petitioner’s son-in-law, and that the respondent committed family offenses against the petitioner on three occasions: August 4, 2018; November 9, 2020, and April 13, 2022. The respondent married the petitioner’s daughter N.B. on October 31, 2018, which was after he allegedly committed family offenses on August 4, 2018, but before he allegedly committed family offenses on November 9, 2020, and April 13, 2022. The respondent moved for an order, inter alia, pursuant to CPLR 3211(a)(2) dismissing for lack of subject matter jurisdiction the portion of the petition alleging that he committed family offense on August 4, 2018. The Court found that Family Court Act requires the qualifying relationship to exist at the time of the family offense and that by requiring the petitioner to set forth the qualifying relationship in the petition at the time of filing, Family Court Act § 821(1)(b) implies that the qualifying relationship must exist at the time of filing.
May 22, 2024 (Legislation)
Second Department
Where the docket number on the e-filed deposition transcript was not provided in the motion papers, the deposition testimony was not part of the record.
In Matter of Wydra v Brach, 2024 NY Slip Op 02327 (2d Dept.,2024) the Appellate Divison observed that pursuant to CPLR 2214(c), a party in an e-filed action may rely on e-filed papers and need not include those papers in its motion papers, but may make reference to them, giving the docket numbers on the e-filing system. However, the docket numbers on the e-filing system must be provided. (Reardon v Macy's, Inc., 191 AD3d 712, 714; see Eastern Funding LLC v San Jose 63 Corp., 172 AD3d 818, 819). In this case, it held that since the docket number on the e-filed deposition transcript was not provided in the motion papers, the deposition testimony was not part of the record.
Domestic Relations Law §§170 & 200, Family Court Act §§117, 308.1, 344.4, 347.1, &1052, Penal Law §130.00 (1), (2) and (10) and other laws recently amended effective on September 1, 2024. 10
Penal Law §130.00 (1)(2) and (10) 11
Domestic Relations Law §170(4) 13
Domestic Relations Law §200(4) 14
Family Court Act §117(b) 15
Family Court Act 308.1(4) 17
Family Court Act 344.4(3) 19
Family Court Act 347.1(1) 20
Family Court Act 1052(c) 21
Social Services Law 384-b 8 (a) (ii); (b)(i) and (ii) and (8)(e) 25
Laws of 2024, Ch 94 amended Family Court Act §783 effective March 7, 2024 37
22 NYCRR 202.12 Preliminary Conference rule Amended 41
Recent Legislation
Domestic Relations Law §§170 & 200, Family Court Act §§117, 308.1, 344.4, 347.1, &1052, Penal Law §130.00 (1), (2) and (10) and other laws recently amended effective on September 1, 2024.
Laws of 2023 Ch 777, signed by the Governor on January 30, 2024, and effective January 1, 2024, amended, among other things, Domestic Relations Law §§170 & 200, and Family Court Act §§117, 308.1, 344.4, 347.1, & 1052; in addition to several sections of the penal law (including Penal Law §130 (1) and (2), the criminal procedure law, the correction law, the social services law, the vehicle and traffic law, the family court act, the civil rights law, the civil practice law and rules, the agriculture and markets law, the judiciary law and the domestic relations law, in relation to sex offenses; and repealed certain provisions of the penal law relating to sex offenses. The purpose of the Bill was to amend the penal law to remove the penetration requirement from the rape statutes as well as to define rape as sexual intercourse, oral sexual conduct, or anal sexual conduct. This bill removed the penetration requirement from the rape statutes and redefined rape to include oral and anal sexual conduct (which are now referred to as "criminal sexual act,") within the definition of rape so that these other forms of sexual assault are recognized by the law as rape and made conforming changes throughout various areas of law. (See NY Legis Memo 777 (2023) ( legislative bills numbers S. 3161 and A. 3340)
Laws of 2024, Chapter 23, signed by the Governor on January 30, 2024, effective January 1, 2024, amended, among other things, Domestic Relations Law §§170 & 200, and Family Court Act §§117, 308.1, 344.4, 347.1, & 1052; in addition to several sections of the penal law (including Penal Law § 130 (1)(2) and (10), the criminal procedure law, the correction law, the social services law, the vehicle and traffic law, the family court act, the civil rights law, the civil practice law and rules, the agriculture and markets law and the judiciary law, in relation to certain sex offenses; and to amended a chapter of the laws of 2023, amending the penal law, the criminal procedure law, the correction law, the social services law, the vehicle and traffic law, the family Court act, the civil rights law, the civil practice law and rules, the agriculture and markets law, the judiciary law and the domestic relations law relating to sex offenses, as proposed in legislative bills numbers S. 3161 and A. 3340, in relation to the effectiveness thereof.
This amendment introduces technical changes related to cross-referencing
other crimes in the penal law. The legislation incorporates language acknowledging the repealed sections of the penal law as formerly existing sections. The effective date has been extended from January 1, 2024, to September 1, 2024. This legislation is a negotiated change to the underlying chapter. The Executive wanted to clarify the legislature's intent by referencing the repealed sections related to the crime of criminal sexual acts. The addition of the term 'formerly' in the newly amended statutes provides a reference point, reducing potential issues in prosecuting cases that existed before the amendments. (See NY Legis Memo 23 (2024) This legislation amends §130.00 (10) of the penal law, to redefine "Sexual conduct".
This act is effective on September 1, 2024, and applicable to any offense committed on or after the effective date (Laws of 2024, Ch 23, § 66).
Laws of 2024, Ch 23, § 46 provides that: This act shall take effect immediately; provided, however, that sections one through forty-four of this act shall take effect on the same date and in the same manner as a chapter of the laws of 2023, amending the penal law, the criminal procedure law, the correction law, the social services law, the vehicle and traffic law, the family court act, the civil rights law, the civil practice law and rules, the agriculture and markets law, the judiciary law and the domestic relations law relating to sex offenses, as proposed in legislative bills numbers S. 3161 and A. 3340, takes effect.
Note: The Domestic Relations Law, Family Court Act, and Social Services statutes that were amended, which are of interest to Family Law Practitioners, are below. The amended portion(s) of the statutes are in bold type indicating the portion of each statute that is effective immediately and the portion that is effective on September 1, 2024.
Penal Law §130.00 (1)(2) and (10)
Penal Law §130.00 (1)(2) and (10) were amended to read as follows:
§ 130.00 Sex offenses; definitions of terms
The following definitions are applicable to this article:
1. [Eff. until Sept. 1, 2024. See, also, subd. 1 below.] “Sexual intercourse” has its ordinary meaning and occurs upon any penetration, however slight.
1. [Eff. Sept. 1, 2024. See, also, subd. 1 above.] “Vaginal sexual contact” means conduct between persons consisting of contact between the penis and the vagina or vulva.
2. [Eff. until Sept. 1, 2024. See, also, subd. 2 below.] (a) “Oral sexual conduct” means conduct between persons consisting of contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina.
(b) “Anal sexual conduct” means conduct between persons consisting of contact between the penis and anus.
2. [Eff. Sept. 1, 2024. See, also, subd. 2 above.] (a) “Oral sexual contact” means conduct between persons consisting of contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina.
(b) “Anal sexual contact” means conduct between persons consisting of contact between the penis and anus.
3. “Sexual contact” means any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing, as well as the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed.
4. For the purposes of this article “married” means the existence of the relationship between the actor and the victim as spouses which is recognized by law at the time the actor commits an offense proscribed by this article against the victim.
5. “Mentally disabled” means that a person suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct.
6. “Mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent.
7. “Physically helpless” means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.
8. “Forcible compulsion” means to compel by either:
a. use of physical force; or
b. a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped.
9. “Foreign object” means any instrument or article which, when inserted in the vagina, urethra, penis, rectum or anus, is capable of causing physical injury.
10. [Eff. until Sept. 1, 2024. See, also, subd. 10 below.] “Sexual conduct” means sexual intercourse, oral sexual conduct, anal sexual conduct, aggravated sexual contact, or sexual contact.
10. [Eff. Sept. 1 2024. See, also, subd. 10 above.] “Sexual conduct” means vaginal sexual contact, oral sexual contact, anal sexual contact, aggravated sexual contact, or sexual contact.
11. “Aggravated sexual contact” means inserting, other than for a valid medical purpose, a foreign object in the vagina, urethra, penis, rectum or anus of a child, thereby causing physical injury to such child.
12. “Health care provider” means any person who is, or is required to be, licensed or registered or holds himself or herself out to be licensed or registered, or provides services as if he or she were licensed or registered in the profession of medicine, chiropractic, dentistry or podiatry under any of the following: article one hundred thirty-one, one hundred thirty-two, one hundred thirty-three, or one hundred forty-one of the education law.
13. “Mental health care provider” shall mean a licensed physician, licensed psychologist, registered professional nurse, licensed clinical social worker or a licensed master social worker under the supervision of a physician, psychologist or licensed clinical social worker.
(As amended by L.2023, c. 777, § 2, eff. Sept. 1, 2024; L.2024, c. 23, § 1, eff. Sept. 1, 2024.)
Domestic Relations Law §170(4)
Domestic Relations Law § 170 was amended as follows:
§ 170. Action for divorce
An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:
(1) The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
(2) The abandonment of the plaintiff by the defendant for a period of one or more years.
(3) The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.
(4) [Eff. until Sept. 1, 2024. See, also, subd. (4) below.] The commission of an act of adultery, provided that adultery for the purposes of articles ten, eleven, and eleven-A of this chapter, is hereby defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual conduct and anal sexual conduct include, but are not limited to, sexual conduct as defined in subdivision two of section 130.00 and subdivision three of section 130.20 of the penal law.
(4) [Eff. Sept. 1, 2024. See, also, subd. (4) above.] The commission of an act of adultery, provided that adultery for the purposes of articles ten, eleven, and eleven-A of this chapter, is hereby defined as the commission of an act of vaginal sexual contact, oral sexual contact or anal sexual contact, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual contact and anal sexual contact include, but are not limited to, sexual conduct as defined in subdivision two of section 130.00 and subdivision four of section 130.20 of the penal law.
(5) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.
(6) The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation and (d) the date of this subscription and acknowledgment or proof of such agreement of separation.
(7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.
(L.2023, c. 777, § 59, eff. Sept. 1, 2024.)
Domestic Relations Law §200(4)
Domestic Relations Law §200(4) was amended to read as follows:
§ 200. Action for separation
An action may be maintained by a husband or wife against the other party to the marriage to procure a judgment separating the parties from bed and board, forever, or for a limited time, for any of the following causes:
1. The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
2. The abandonment of the plaintiff by the defendant.
3. The neglect or refusal of the defendant-spouse to provide for the support of the plaintiff-spouse where the defendant-spouse is chargeable with such support under the provisions of section thirty-two of this chapter or of section four hundred twelve of the family court act.
4. [Eff. until Sept. 1, 2024. See, also, subd. 4 below.] The commission of an act of adultery by the defendant; except where such offense is committed by the procurement or with the connivance of the plaintiff or where there is voluntary cohabitation of the parties with the knowledge of the offense or where action was not commenced within five years after the discovery by the plaintiff of the offense charged or where the plaintiff has also been guilty of adultery under such circumstances that the defendant would have been entitled, if innocent, to a divorce, provided that adultery for the purposes of this subdivision is hereby defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual conduct and anal sexual conduct include, but are not limited to, sexual conduct as defined in subdivision two of section 130.00 and subdivision three of section 130.20 of the penal law.
4. [Eff. Sept. 1, 2024. See, also, subd. 4 above.] The commission of an act of adultery by the defendant; except where such offense is committed by the procurement or with the connivance of the plaintiff or where there is voluntary cohabitation of the parties with the knowledge of the offense or where action was not commenced within five years after the discovery by the plaintiff of the offense charged or where the plaintiff has also been guilty of adultery under such circumstances that the defendant would have been entitled, if innocent, to a divorce, provided that adultery for the purposes of this subdivision is hereby defined as the commission of an act of vaginal sexual contact, oral sexual contact or anal sexual contact, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual contact and anal sexual contact include, but are not limited to, sexual conduct as defined in subdivision two of section 130.00 and subdivision four of section 130.20 of the penal law.
5. The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.
(L.2023, c. 777, § 64, eff. Sept. 1, 2024.)
Family Court Act §117(b)
Family Court Act §117(b) opening paragraph was amended to read as follows:
§ 117. Parts of court
(a) There is hereby established in the family court a “child abuse part”. Such part shall be held separate from all other proceedings of the court, and shall have jurisdiction over all proceedings in the family court involving abused children, and shall be charged with the immediate protection of these children. All cases involving abuse shall be originated in or be transferred to this part from other parts as they are made known to the court unless there is or was before the court a proceeding involving any members of the same family or household, in which event the judge who heard said proceeding may hear the case involving abuse. Consistent with its primary purpose, nothing in this section is intended to prevent the child abuse part from hearing other cases.
(b) [Eff. until Sept. 1, 2024. See, also, opening par. below.] For every juvenile delinquency proceeding under article three involving an allegation of an act committed by a person which, if done by an adult, would be a crime (i) defined in sections 125.27 (murder in the first degree); 125.25 (murder in the second degree); 135.25 (kidnapping in the first degree); or 150.20 (arson in the first degree) of the penal law committed by a person thirteen, fourteen, fifteen, sixteen, or seventeen years of age; or such conduct committed as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law; (ii) defined in sections 120.10 (assault in the first degree); 125.20 (manslaughter in the first degree); 130.35 (rape in the first degree); 130.50 (criminal sexual act in the first degree); 130.70 (aggravated sexual abuse in the first degree); 135.20 (kidnapping in the second degree), but only where the abduction involved the use or threat of use of deadly physical force; 150.15 (arson in the second degree); or 160.15 (robbery in the first degree) of the penal law committed by a person thirteen, fourteen, fifteen, sixteen, or seventeen years of age; or such conduct committed as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law; (iii) defined in the penal law as an attempt to commit murder in the first or second degree or kidnapping in the first degree committed by a person thirteen, fourteen, fifteen, sixteen, or seventeen years of age; or such conduct committed as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law; (iv) defined in section 140.30 (burglary in the first degree); subdivision one of section 140.25 (burglary in the second degree); subdivision two of section 160.10 (robbery in the second degree) of the penal law; or section 265.03 of the penal law, where such machine gun or such firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of the penal law committed by a person fourteen, fifteen, sixteen, or seventeen years of age; or such conduct committed as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law; (v) defined in section 120.05 (assault in the second degree) or 160.10 (robbery in the second degree) of the penal law committed by a person fourteen, fifteen, sixteen, or seventeen years of age but only where there has been a prior finding by a court that such person has previously committed an act which, if committed by an adult, would be the crime of assault in the second degree, robbery in the second degree or any designated felony act specified in clause (i), (ii) or (iii) of this subdivision regardless of the age of such person at the time of the commission of the prior act; or (vi) other than a misdemeanor, committed by a person at least twelve but less than eighteen years of age, but only where there have been two prior findings by the court that such person has committed a prior act which, if committed by an adult, would be a felony:
(b) [Eff. Sept. 1, 2024. See, also, opening par. above.] For every juvenile delinquency proceeding under article three involving an allegation of an act committed by a person which, if done by an adult, would be a crime (i) defined in sections 125.27 (murder in the first degree); 125.25 (murder in the second degree); 135.25 (kidnapping in the first degree); or 150.20 (arson in the first degree) of the penal law committed by a person thirteen, fourteen, fifteen, sixteen, or seventeen years of age; or such conduct committed as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law; (ii) defined in sections 120.10 (assault in the first degree); 125.20 (manslaughter in the first degree); 130.35 (rape in the first degree); former section 130.50; sections 130.70 (aggravated sexual abuse in the first degree); 135.20 (kidnapping in the second degree), but only where the abduction involved the use or threat of use of deadly physical force; 150.15 (arson in the second degree); or 160.15 (robbery in the first degree) of the penal law committed by a person thirteen, fourteen, fifteen, sixteen, or seventeen years of age; or such conduct committed as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law; (iii) defined in the penal law as an attempt to commit murder in the first or second degree or kidnapping in the first degree committed by a person thirteen, fourteen, fifteen, sixteen, or seventeen years of age; or such conduct committed as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law; (iv) defined in section 140.30 (burglary in the first degree); subdivision one of section 140.25 (burglary in the second degree); subdivision two of section 160.10 (robbery in the second degree) of the penal law; or section 265.03 of the penal law, where such machine gun or such firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of the penal law committed by a person fourteen, fifteen, sixteen, or seventeen years of age; or such conduct committed as a sexually motivated felony, where authorized pursuant to section 130.91 of the penal law; (v) defined in section 120.05 (assault in the second degree) or 160.10 (robbery in the second degree) of the penal law committed by a person fourteen, fifteen, sixteen, or seventeen years of age but only where there has been a prior finding by a court that such person has previously committed an act which, if committed by an adult, would be the crime of assault in the second degree, robbery in the second degree or any designated felony act specified in clause (i), (ii) or (iii) of this subdivision regardless of the age of such person at the time of the commission of the prior act; or (vi) other than a misdemeanor, committed by a person at least twelve but less than eighteen years of age, but only where there have been two prior findings by the court that such person has committed a prior act which, if committed by an adult, would be a felony:
(i) There is hereby established in the family court in the city of New York at least one “designated felony act part.” Such part or parts shall be held separate from all other proceedings of the court, and shall have jurisdiction over all proceedings involving such an allegation. All such proceedings shall be originated in or be transferred to this part from other parts as they are made known to the court.
(ii) Outside the city of New York, all proceedings involving such an allegation shall have a hearing preference over every other proceeding in the court, except proceedings under article ten.
(c) The chief administrator of the courts may establish one or more separate support parts in each family court for the purpose of expediting support proceedings instituted pursuant to articles four, five and five-A of this act. Where such separate support parts are established, all such proceedings shall be originated in or be transferred to this part or parts as they are made known to the court and shall be heard by support magistrates in accordance with section four hundred thirty-nine of this act.
(d) The appellate division of the supreme court in each department may provide, in accordance with the standards and policies established by the administrative board of the judicial conference, that the family court in counties within its department shall or may be organized into such other parts, if any, as may be appropriate.
(L.2023, c. 777, § 38, eff. Sept. 1, 2024; L.2024, c. 23, § 35, eff. Sept. 1, 2024.)
Family Court Act 308.1(4)
Family Court Act 308.1(4)was amended to read as follows:
§ 308.1. Rules of court for preliminary procedure
1. Rules of court shall authorize and determine the circumstances under which the probation service may confer with any person seeking to have a juvenile delinquency petition filed, the potential respondent and other interested persons concerning the advisability of requesting that a petition be filed.
2. Except as provided in subdivisions three and four of this section, the probation service may, in accordance with rules of court, adjust suitable cases before a petition is filed. The inability of the respondent or his or her family to make restitution shall not be a factor in a decision to adjust a case or in a recommendation to the presentment agency pursuant to subdivision six of this section. Nothing in this section shall prohibit the probation service or the court from directing a respondent to obtain employment and to make restitution from the earnings from such employment. Nothing in this section shall prohibit the probation service or the court from directing an eligible person to complete an education reform program in accordance with section four hundred fifty-eight-l of the social services law.
3. The probation service shall not adjust a case in which the child has allegedly committed a designated felony act unless it has received the written approval of the court.
4. [Eff. until Sept. 1, 2024. See, also, subd. 4 below.] The probation service shall not adjust a case in which the child has allegedly committed a delinquent act which would be a crime defined in section 120.25, (reckless endangerment in the first degree), subdivision one of section 125.15, (manslaughter in the second degree), subdivision one of section 130.25, (rape in the third degree), subdivision one of section 130.40, (criminal sexual act in the third degree), subdivision one or two of section 130.65, (sexual abuse in the first degree), section 135.65, (coercion in the first degree), section 140.20, (burglary in the third degree), section 150.10, (arson in the third degree), section 160.05, (robbery in the third degree), subdivision two, three or four of section 265.02, (criminal possession of a weapon in the third degree), section 265.03, (criminal possession of a weapon in the second degree), or section 265.04, (criminal possession of a dangerous weapon in the first degree) of the penal law where the child has previously had one or more adjustments of a case in which such child allegedly committed an act which would be a crime specified in this subdivision unless it has received written approval from the court and the appropriate presentment agency.
4. [Eff. Sept. 1, 2024. See, also, subd. 4 above.] The probation service shall not adjust a case in which the child has allegedly committed a delinquent act which would be a crime defined in section 120.25, (reckless endangerment in the first degree), subdivision one of section 125.15, (manslaughter in the second degree), subdivisions one, two and three of section 130.25, (rape in the third degree), subdivision one of former section 130.40, subdivision one or two of section 130.65, (sexual abuse in the first degree), section 135.65, (coercion in the first degree), section 140.20, (burglary in the third degree), section 150.10, (arson in the third degree), section 160.05, (robbery in the third degree), subdivision two, three or four of section 265.02, (criminal possession of a weapon in the third degree), section 265.03, (criminal possession of a weapon in the second degree), or section 265.04, (criminal possession of a dangerous weapon in the first degree) of the penal law where the child has previously had one or more adjustments of a case in which such child allegedly committed an act which would be a crime specified in this subdivision unless it has received written approval from the court and the appropriate presentment agency.
5. The fact that a child is detained prior to the filing of a petition shall not preclude the probation service from adjusting a case; upon adjusting such a case the probation service shall notify the detention facility to release the child.
6. The probation service shall not transmit or otherwise communicate to the presentment agency any statement made by the child to a probation officer. However, the probation service may make a recommendation regarding adjustment of the case to the presentment agency and provide such information, including any report made by the arresting officer and record of previous adjustments and arrests, as it shall deem relevant.
7. No statement made to the probation service prior to the filing of a petition may be admitted into evidence at a fact-finding hearing or, if the proceeding is transferred to a criminal court, at any time prior to a conviction.
8. The probation service shall consider the views of the complainant and the impact of the alleged act or acts of juvenile delinquency upon the complainant and upon the community in determining whether adjustment under this section would be suitable.
9. Efforts at adjustment pursuant to rules of court under this section may not extend for a period of more than three months without leave of the court, which may extend the period for an additional two months.
10. If a case is not adjusted by the probation service, such service shall notify the appropriate presentment agency of that fact within forty-eight hours or the next court day, whichever occurs later.
11. The probation service may not be authorized under this section to compel any person to appear at any conference, produce any papers, or visit any place.
12. The probation service shall certify to the division of criminal justice services and to the appropriate police department or law enforcement agency whenever it adjusts a case in which the potential respondent's fingerprints were taken pursuant to section 306.1 in any manner other than the filing of a petition for juvenile delinquency for an act which, if committed by an adult, would constitute a felony, provided, however, in the case of a child twelve years of age, such certification shall be made only if the act would constitute a class A or B felony.
13. The provisions of this section shall not apply where the petition is an order of removal to the family court pursuant to article seven hundred twenty-five of the criminal procedure law against a juvenile offender as defined in subdivision eighteen of section 10.00 of the penal law.
14. Notwithstanding subdivisions three, four and thirteen of this section, the probation service may adjust a proceeding where the court has referred a case to the probation service in accordance with section 320.6 of this article in conjunction with or subsequent to the issuance of an order pursuant to subdivision one of section 345.1 of this article where such order does not include a fact-finding for an act which would constitute a juvenile offense, designated felony or offense listed in subdivision four of this section. Where a proceeding has been referred to the probation service in which an order issued pursuant to section 345.1 of this article consists solely of a violation as defined in subdivision three of section 10.00 of the penal law committed by a juvenile sixteen years of age or, commencing on October first, two thousand nineteen, seventeen years of age, the probation service shall adjust the matter unless good cause is shown and is documented in its records.
( L.2023, c. 777, § 39, eff. Sept. 1, 2024; L.2024, c. 23, § 36, eff. Sept. 1, 2024.)
Family Court Act 344.4(3)
Family Court Act 344.4(3) was amended to read as follows:
§ 344.4. Rules of evidence; admissibility of evidence of victim's sexual conduct in sex offense cases
Evidence of a victim's sexual conduct shall not be admissible in a juvenile delinquency proceeding for a crime or an attempt to commit a crime defined in article one hundred thirty of the penal law unless such evidence:
1. proves or tends to prove specific instances of the victim's prior sexual conduct with the accused; or
2. proves or tends to prove that the victim has been convicted of an offense under section 230.00 of the penal law within three years prior to the sex offense which is the subject of the juvenile delinquency proceeding; or
3. [Eff. until Sept. 1, 2024. See, also, subd. 3 below.] rebuts evidence introduced by the presentment agency of the victim's failure to engage in sexual intercourse, oral sexual conduct, anal sexual conduct or sexual contact during a given period of time; or
3. [Eff. Sept. 1, 2024. See, also, subd. 3 above.] rebuts evidence introduced by the presentment agency of the victim's failure to engage in vaginal sexual contact, oral sexual contact, anal sexual contact or sexual contact during a given period of time; or
4. rebuts evidence introduced by the presentment agency which proves or tends to prove that the accused is the cause of pregnancy or disease of the victim, or the source of semen found in the victim; or
5. is determined by the court after an offer of proof by the accused, or such hearing as the court may require, and a statement by the court of its findings of fact essential to its determination, to be relevant and admissible in the interests of justice.
(Added L.1987, c. 761, § 1, eff. Nov. 1, 1987. Amended L.2003, c. 264, § 62, eff. Nov. 1, 2003; L.2023, c. 777, § 58, eff. Sept. 1, 2024.)
Family Court Act 347.1(1)
Family Court Act 347.1(1) was amended to read as follows:
§ 347.1. Required testing of the respondent in certain proceedings
1. [Eff. until Sept. 1, 2024. See, also, subd. 1 below.] (a) In any proceeding where the respondent is found pursuant to section 345.1 or 346.1 of this article, to have committed a felony offense enumerated in any section of article one hundred thirty of the penal law, or any subdivision of section 130.20 of such law, for which an act of “sexual intercourse”, “oral sexual conduct” or “anal sexual conduct”, as those terms are defined in section 130.00 of the penal law, is required as an essential element for the commission thereof, the court must, upon a request of the victim, order that the respondent submit to human immunodeficiency (HIV) related testing. The testing is to be conducted by a state, county, or local public health officer designated by the order. Test results, which shall not be disclosed to the court, shall be communicated to the respondent and the victim named in the order in accordance with the provisions of section twenty-seven hundred eighty-five-a of the public health law.
(b) For the purposes of this section, the term “victim” means the person with whom the respondent engaged in an act of “sexual intercourse”, “oral sexual conduct” or “anal sexual conduct”, as those terms are defined in section 130.00 of the penal law, where such conduct with such victim was the basis for the court's finding that the respondent committed acts constituting one or more of the offenses specified in paragraph (a) of this subdivision.
1. [Eff. Sept. 1, 2024. See, also, subd. 1 above.] (a) In any proceeding where the respondent is found pursuant to section 345.1 or 346.1 of this article, to have committed a felony offense enumerated in any section of article one hundred thirty of the penal law, or any subdivision of section 130.20 of such law, for which an act of “vaginal sexual contact”, “oral sexual contact” or “anal sexual contact”, as those terms are defined in section 130.00 of the penal law, is required as an essential element for the commission thereof, the court must, upon a request of the victim, order that the respondent submit to human immunodeficiency (HIV) related testing. The testing is to be conducted by a state, county, or local public health officer designated by the order. Test results, which shall not be disclosed to the court, shall be communicated to the respondent and the victim named in the order in accordance with the provisions of section twenty-seven hundred eighty-five-a of the public health law.
(b) For the purposes of this section, the term “victim” means the person with whom the respondent engaged in an act of “vaginal sexual contact”, “oral sexual contact” or “anal sexual contact”, as those terms are defined in section 130.00 of the penal law, where such conduct with such victim was the basis for the court's finding that the respondent committed acts constituting one or more of the offenses specified in paragraph (a) of this subdivision.
2. Any request made by the victim pursuant to this section must be in writing, filed with the court and provided by the court to the defendant and his or her counsel. The request must be filed with the court prior to or within ten days after the filing of an order in accordance with section 345.1 or 346.1 of this article, provided that, for good cause shown, the court may permit such request to be filed at any time prior to the entry of an order of disposition.
3. Any requests, related papers and orders made or filed pursuant to this section, together with any papers or proceedings related thereto, shall be sealed by the court and not made available for any purpose, except as may be necessary for the conduct of judicial proceedings directly related to the provisions of this section. All proceedings on such requests shall be held in camera.
4. The application for an order to compel a respondent to undergo an HIV related test may be made by the victim but, if the victim is an infant or incompetent person, the application may also be made by a representative as defined in section twelve hundred one of the civil practice law and rules. The application must state that (a) the applicant was the victim of the offense, enumerated in paragraph (a) of subdivision one of this section, which the court found the defendant to have committed; and (b) the applicant has been offered counseling by a public health officer and been advised of (i) the limitations on the information to be obtained through an HIV test on the proposed subject; (ii) current scientific assessments of the risk of transmission of HIV from the exposure he or she may have experienced; and (iii) the need for the applicant to undergo HIV related testing to definitively determine his or her HIV status.
5. The court shall conduct a hearing only if necessary to determine if the applicant is the victim of the offense the respondent was found to have committed. The court ordered test must be performed within fifteen days of the date on which the court ordered the test, provided however that whenever the respondent is not tested within the period prescribed by the court, the court must again order that the respondent undergo an HIV related test.
6. (a) Test results shall be disclosed subject to the following limitations, which shall be specified in any order issued pursuant to this section:
(i) disclosure of confidential HIV related information shall be limited to that information which is necessary to fulfill the purpose for which the order is granted;
(ii) disclosure of confidential HIV related information shall be limited to the person making the application; redisclosure shall be permitted only to the victim, the victim's immediate family, guardian, physicians, attorneys, medical or mental health providers and to his or her past and future contacts to whom there was or is a reasonable risk of HIV transmission and shall not be permitted to any other person or the court.
(b) Unless inconsistent with this section, the court's order shall direct compliance with and conform to the provisions of article twenty-seven-F of the public health law. Such order shall include measures to protect against disclosure to others of the identity and HIV status of the applicant and of the person tested and may include such other measures as the court deems necessary to protect confidential information.
7. Any failure to comply with the provisions of this section or section twenty-seven hundred eighty-five-a of the public health law shall not impair the validity of any order of disposition entered by the court.
8. No information obtained as a result of a consent, hearing or court order for testing issued pursuant to this section nor any information derived therefrom may be used as evidence in any criminal or civil proceeding against the respondent which relates to events that were the basis for the respondent's conviction, provided however that nothing herein shall prevent prosecution of a witness testifying in any court hearing held pursuant to this section for perjury pursuant to article two hundred ten of the penal law.
(Amended L.2023, c. 777, § 49, eff. Sept. 1, 2024.)
Family Court Act 1052(c)
Family Court Act 1052(c) was amended to read as follows:
§ 1052. Disposition on adjudication
(a) At the conclusion of a dispositional hearing under this article, the court shall enter an order of disposition directing one or more of the following:
(i) suspending judgment in accord with section one thousand fifty-three of this part; or
(ii) releasing the child to a non-respondent parent or parents or legal custodian or custodians or guardian or guardians, who is not or are not respondents in the proceeding, in accord with section one thousand fifty-four of this part; or
(iii) placing the child in accord with section one thousand fifty-five of this part; or
(iv) making an order of protection in accord with section one thousand fifty-six of this part; or
(v) releasing the child to the respondent or respondents or placing the respondent or respondents under supervision, or both, in accord with section one thousand fifty-seven of this part; or
(vi) granting custody of the child to a respondent parent or parents, a relative or relatives or a suitable person or persons pursuant to article six of this act and section one thousand fifty-five-b of this part; or
(vii) granting custody of the child to a non-respondent parent or parents pursuant to article six of this act.
However, the court shall not enter an order of disposition combining placement of the child under paragraph (iii) of this subdivision with a disposition under paragraph (i) or (ii) of this subdivision. An order granting custody of the child pursuant to paragraph (vi) or (vii) of this subdivision shall not be combined with any other disposition under this subdivision.
(b)(i) The order of the court shall state the grounds for any disposition made under this section. If the court places the child in accord with section one thousand fifty-five of this part, the court in its order shall determine:
(A) whether continuation in the child's home would be contrary to the best interests of the child and where appropriate, that reasonable efforts were made prior to the date of the dispositional hearing held pursuant to this article to prevent or eliminate the need for removal of the child from his or her home and if the child was removed from the home prior to the date of such hearing, that such removal was in the child's best interests and, where appropriate, reasonable efforts were made to make it possible for the child to safely return home. If the court determines that reasonable efforts to prevent or eliminate the need for removal of the child from the home were not made but that the lack of such efforts was appropriate under the circumstances, the court order shall include such a finding, or if the permanency plan for the child is adoption, guardianship or another permanent living arrangement other than reunification with the parent or parents of the child, the court order shall include a finding that reasonable efforts, including consideration of appropriate in-state and out-of-state placements, are being made to make and finalize such alternate permanent placement.
For the purpose of this section, reasonable efforts to prevent or eliminate the need for removing the child from the home of the child or to make it possible for the child to return safely to the home of the child shall not be required where, upon motion with notice by the social services official, the court determines that:
(1) the parent of such child has subjected the child to aggravated circumstances, as defined in subdivision (j) of section one thousand twelve of this article;
(2) the parent of such child has been convicted of (i) murder in the first degree as defined in section 125.27 or murder in the second degree as defined in section 125.25 of the penal law and the victim was another child of the parent; or (ii) manslaughter in the first degree as defined in section 125.20 or manslaughter in the second degree as defined in section 125.15 of the penal law and the victim was another child of the parent, provided, however, that the parent must have acted voluntarily in committing such crime;
(3) the parent of such child has been convicted of an attempt to commit any of the foregoing crimes, and the victim or intended victim was the child or another child of the parent; or has been convicted of criminal solicitation as defined in article one hundred, conspiracy as defined in article one hundred five or criminal facilitation as defined in article one hundred fifteen of the penal law for conspiring, soliciting or facilitating any of the foregoing crimes, and the victim or intended victim was the child or another child of the parent;
(4) the parent of such child has been convicted of assault in the second degree as defined in section 120.05, assault in the first degree as defined in section 120.10 or aggravated assault upon a person less than eleven years old as defined in section 120.12 of the penal law, and the commission of one of the foregoing crimes resulted in serious physical injury to the child or another child of the parent;
(5) the parent of such child has been convicted in any other jurisdiction of an offense which includes all of the essential elements of any crime specified in clause two, three or four of this subparagraph, and the victim of such offense was the child or another child of the parent; or
(6) the parental rights of the parent to a sibling of such child have been involuntarily terminated;
unless the court determines that providing reasonable efforts would be in the best interests of the child, not contrary to the health and safety of the child, and would likely result in the reunification of the parent and the child in the foreseeable future. The court shall state such findings in its order.
(7) If the court determines that reasonable efforts are not to be required because of one of the grounds set forth above, a permanency hearing shall be held within thirty days of the finding of the court that such efforts are not required. At the permanency hearing, the court shall determine the appropriateness of the permanency plan prepared by the social services official which shall include whether or when the child: (i) will be returned to the parent; (ii) should be placed for adoption with the social services official filing a petition for termination of parental rights; (iii) should be referred for legal guardianship; (iv) should be placed permanently with a fit and willing relative; or (v) should be placed in another planned permanent living arrangement that includes a significant connection to an adult willing to be a permanency resource for the child, if the child is age sixteen or older and if the requirements of clause (E) of subparagraph (i) of paragraph two of subdivision (d) of section one thousand eighty-nine of the chapter have been met. The social services official shall thereafter make reasonable efforts to place the child in a timely manner, including consideration of appropriate in-state and out-of-state placements, and to complete whatever steps are necessary to finalize the permanent placement of the child as set forth in the permanency plan approved by the court. If reasonable efforts are determined by the court not to be required because of one of the grounds set forth in this paragraph, the social services official may file a petition for termination of parental rights in accordance with section three hundred eighty-four-b of the social services law.
For the purpose of this section, in determining reasonable effort to be made with respect to a child, and in making such reasonable efforts, the child's health and safety shall be the paramount concern.
For the purpose of this section, a sibling shall include a half-sibling;
(B) if the child has attained the age of sixteen, the services needed, if any, to assist the child to make the transition from foster care to independent living. Where the court finds that the local department of social services has not made reasonable efforts to prevent or eliminate the need for placement, and that such efforts would be appropriate, it shall direct the local department of social services to make such efforts pursuant to section one thousand fifteen-a of this article, and shall adjourn the hearing for a reasonable period of time for such purpose when the court determines that additional time is necessary and appropriate to make such efforts; and
(C) whether the local social services district made a reasonable search to locate relatives of the child as required pursuant to section one thousand seventeen of this article. In making such determination, the court shall consider whether the local social services district engaged in a search to locate any non-respondent parent and whether the local social services district attempted to locate all of the child's grandparents, all suitable relatives identified by any respondent parent and any non-respondent parent and all relatives identified by a child over the age of five as relatives who play or have played a significant positive role in the child's life.
(ii) The court shall also consider and determine whether the need for placement of the child would be eliminated by the issuance of an order of protection, as provided for in paragraph (iv) of subdivision (a) of this section, directing the removal of a person or persons from the child's residence. Such determination shall consider the occurrence, if any, of domestic violence in the child's residence.
(c) [Eff. until Sept. 1, 2024. See, also, subd. (c) below.] Prior to granting an order of disposition pursuant to subdivision (a) of this section following an adjudication of child abuse, as defined in paragraph (i) of subdivision (e) of section ten hundred twelve of this act or a finding of a felony sex offense as defined in sections 130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.65 and 130.70 of the penal law, the court shall advise the respondent that any subsequent adjudication of child abuse, as defined in paragraph (i) of subdivision (e) of section one thousand twelve of this act or any subsequent finding of a felony sex offense as defined in those sections of the penal law herein enumerated, arising out of acts of the respondent may result in the commitment of the guardianship and custody of the child or another child pursuant to section three hundred eighty-four-b of the social services law. The order in such cases shall contain a statement that any subsequent adjudication of child abuse or finding of a felony sex offense as described herein may result in the commitment of the guardianship and custody of the child, or another child pursuant to section three hundred eighty-four-b of the social services law.
(c) [Eff. Sept. 1, 2024. See, also, subd. (c) above.] Prior to granting an order of disposition pursuant to subdivision (a) of this section following an adjudication of child abuse, as defined in paragraph (i) of subdivision (e) of section ten hundred twelve of this act or a finding of a felony sex offense as defined in sections 130.25, 130.30, 130.35, former sections 130.40, 130.45, 130.50, sections 130.65 and 130.70 of the penal law, the court shall advise the respondent that any subsequent adjudication of child abuse, as defined in paragraph (i) of subdivision (e) of section one thousand twelve of this act or any subsequent finding of a felony sex offense as defined in those sections of the penal law herein enumerated, arising out of acts of the respondent may result in the commitment of the guardianship and custody of the child or another child pursuant to section three hundred eighty-four-b of the social services law. The order in such cases shall contain a statement that any subsequent adjudication of child abuse or finding of a felony sex offense as described herein may result in the commitment of the guardianship and custody of the child, or another child pursuant to section three hundred eighty-four-b of the social services law.
(L.2023, c. 777, § 40, eff. Sept. 1, 2024; L.2024, c. 23, § 37, eff. Sept. 1, 2024.)
Social Services Law 384-b 8 (a) (ii); (b)(i) and (ii) and (8)(e)
Social Services Law 384-b (a) (ii); (b)(i) and (ii ) and (8)(e) were amended to read as follows:
§ 384-b. Guardianship and custody of destitute or dependent children; commitment by court order; modification of commitment and restoration of parental rights
1. Statement of legislative findings and intent.
(a) The legislature recognizes that the health and safety of children is of paramount importance. To the extent it is consistent with the health and safety of the child, the legislature further hereby finds that:
(i) it is desirable for children to grow up with a normal family life in a permanent home and that such circumstance offers the best opportunity for children to develop and thrive;
(ii) it is generally desirable for the child to remain with or be returned to the birth parent because the child's need for a normal family life will usually best be met in the home of its birth parent, and that parents are entitled to bring up their own children unless the best interests of the child would be thereby endangered;
(iii) the state's first obligation is to help the family with services to prevent its break-up or to reunite it if the child has already left home; and
(iv) when it is clear that the birth parent cannot or will not provide a normal family home for the child and when continued foster care is not an appropriate plan for the child, then a permanent alternative home should be sought for the child.
(b) The legislature further finds that many children who have been placed in foster care experience unnecessarily protracted stays in such care without being adopted or returned to their parents or other custodians. Such unnecessary stays may deprive these children of positive, nurturing family relationships and have deleterious effects on their development into responsible, productive citizens. The legislature further finds that provision of a timely procedure for the termination, in appropriate cases, of the rights of the birth parents could reduce such unnecessary stays.
It is the intent of the legislature in enacting this section to provide procedures not only assuring that the rights of the birth parent are protected, but also, where positive, nurturing parent-child relationships no longer exist, furthering the best interests, needs, and rights of the child by terminating parental rights and freeing the child for adoption.
2. For the purposes of this section, (a) “child” shall mean a person under the age of eighteen years; and, (b) “parent” shall include an incarcerated parent unless otherwise qualified.
3. (a) The guardianship of the person and the custody of a destitute or dependent child may be committed to an authorized agency, or to a foster parent authorized pursuant to section one thousand eighty-nine of the family court act to institute a proceeding under this section, or to a relative with care and custody of the child, by order of a surrogate or judge of the family court, as hereinafter provided. Where such guardianship and custody is committed to a foster parent or to a relative with care and custody of the child, the family court or surrogate's court shall retain continuing jurisdiction over the parties and the child and may, upon its own motion or the motion of any party, revoke, modify or extend its order, if the foster parent or relative fails to institute a proceeding for the adoption of the child within six months after the entry of the order committing the guardianship and custody of the child to such foster parent or relative. Where the foster parent or relative institutes a proceeding for the adoption of the child and the adoption petition is finally denied or dismissed, the court which committed the guardianship and custody of the child to the foster parent or relative shall revoke the order of commitment. Where the court revokes an order committing the guardianship and custody of a child to a foster parent or relative, it shall commit the guardianship and custody of the child to an authorized agency.
(b) A proceeding under this section may be originated by an authorized agency or by a foster parent authorized to do so pursuant to section one thousand eighty-nine of the family court act or by a relative with care and custody of the child or, if an authorized agency ordered by the court to originate a proceeding under this section fails to do so within the time fixed by the court, by the child's attorney or guardian ad litem on the court's direction.
(c) Where a child was placed or continued in foster care pursuant to article ten, ten-A or ten-C of the family court act or section three hundred fifty-eight-a of this chapter, a proceeding under this section shall be originated in the family court in the county in which the proceeding pursuant to article ten, ten-A or ten-C of the family court act or section three hundred fifty-eight-a of this chapter was last heard and shall be assigned, wherever practicable, to the judge who last heard such proceeding. Where multiple proceedings are commenced under this section concerning a child and one or more siblings or half-siblings of such child, placed or continued in foster care with the same commissioner pursuant to section one thousand fifty-five, one thousand eighty-nine or one thousand ninety-five of the family court act, all of such proceedings may be commenced jointly in the family court in any county which last heard a proceeding under article ten, ten-A or ten-C of the family court act regarding any of the children who are the subjects of the proceedings under this section. In such instances, the case shall be assigned, wherever practicable, to the judge who last presided over such proceeding. In any other case, a proceeding under this section, including a proceeding brought in the surrogate's court, shall be originated in the county where either of the parents of the child reside at the time of the filing of the petition, if known, or, if such residence is not known, in the county in which the authorized agency has an office for the regular conduct of business or in which the child resides at the time of the initiation of the proceeding. To the extent possible, the court shall, when appointing an attorney for the child, appoint an attorney who has previously represented the child.
(c-1) Before hearing a petition under this section, the court in which the termination of parental rights petition has been filed shall ascertain whether the child is under the jurisdiction of a family court pursuant to a placement in a child protective or foster care proceeding or continuation in out-of-home care pursuant to a permanency hearing and, if so, which court exercised jurisdiction over the most recent proceeding. If the court determines that the child is under the jurisdiction of a different family court, the court in which the termination of parental rights petition was filed shall stay its proceeding for not more than thirty days and shall communicate with the court that exercised jurisdiction over the most recent proceeding. The communication shall be recorded or summarized on the record by the court in which the termination of parental rights petition was filed. Both courts shall notify the parties and child's attorney, if any, in their respective proceedings and shall give them an opportunity to present facts and legal argument or to participate in the communication prior to the issuance of a decision on jurisdiction. The court that exercised jurisdiction over the most recent proceeding shall determine whether it will accept or decline jurisdiction over the termination of parental rights petition. This determination of jurisdiction shall be incorporated into an order regarding jurisdiction that shall be issued by the court in which the termination of parental rights petition was filed within thirty days of such filing. If the court that exercised jurisdiction over the most recent proceeding determines that it should exercise jurisdiction over the termination of parental rights petition, the order shall require that the petition shall be transferred to that court forthwith but in no event more than thirty-five days after the filing of the petition. The petition shall be assigned, wherever practicable, to the judge who heard the most recent proceeding. If the court that exercised jurisdiction over the most recent proceeding declines to exercise jurisdiction over the adoption petition, the court in which the termination of parental rights petition was filed shall issue an order incorporating that determination and shall proceed forthwith.
(d) The family court shall have exclusive, original jurisdiction over any proceeding brought upon grounds specified in paragraph (c), (d) or (e) of subdivision four of this section, and the family court and surrogate's court shall have concurrent, original jurisdiction over any proceeding brought upon grounds specified in paragraph (a) or (b) of subdivision four of this section, except as provided in paragraphs (c) and (c-1) of this subdivision.
(e) A proceeding under this section is originated by a petition on notice served upon the child's parent or parents, the attorney for the child's parent or parents and upon such other persons as the court may in its discretion prescribe. Such notice shall inform the parents and such other persons that the proceeding may result in an order freeing the child for adoption without the consent of or notice to the parents or such other persons. Such notice also shall inform the parents and such other persons of their right to the assistance of counsel, including any right they may have to have counsel assigned by the court in any case where they are financially unable to obtain counsel. When the proceeding is initiated in family court service of the petition and other process shall be made in accordance with the provisions of section six hundred seventeen of the family court act, and when the proceeding is initiated in surrogate's court, service shall be made in accordance with the provisions of section three hundred seven of the surrogate's court procedure act. When the proceeding is initiated on the grounds of abandonment of a child less than one year of age at the time of the transfer of the care and custody of such child to a local social services official, the court shall take judicial notice of efforts to locate the child's parents or other known relatives or other persons legally responsible pursuant to paragraph (ii) of subdivision (b) of section one thousand fifty-five of the family court act.
(f) In any proceeding under this section in which the surrogate's court has exercised jurisdiction, the provisions of the surrogate's court procedure act shall apply to the extent that they do not conflict with the specific provisions of this section. In any proceeding under this section in which the family court has exercised jurisdiction, the provisions of articles one, two and eleven of the family court act shall apply to the extent that they do not conflict with the specific provisions of this section. In any proceeding under this section, the provisions and limitations of article thirty-one of the civil practice law and rules shall apply to the extent that they do not conflict with the specific provisions of this section. In determining any motion for a protective order, the court shall consider the need of the party for the discovery to assist in the preparation of the case and any potential harm to the child from the discovery. The court shall set a schedule for discovery to avoid unnecessary delay. Any proceeding originated in family court upon the ground specified in paragraph (d) of subdivision four of this section shall be conducted in accordance with the provisions of part one of article six of the family court act.
(g)(i) An order committing the guardianship and custody of a child pursuant to this section shall be granted only upon a finding that one or more of the grounds specified in subdivision four of this section are based upon clear and convincing proof.
(ii) Where a proceeding has been properly commenced under this section by the filing of a petition before the eighteenth birthday of a child, an order committing the guardianship and custody of a child pursuant to this section upon a finding under subdivision four of this section shall be granted after the eighteenth birthday of a child where the child consents to such disposition.
(h) In any proceeding brought upon a ground set forth in paragraph (c) of subdivision four, neither the privilege attaching to confidential communications between husband and wife, as set forth in section forty-five hundred two of the civil practice law and rules, nor the physician-patient and related privileges, as set forth in section forty-five hundred four of the civil practice law and rules, nor the psychologist-client privilege, as set forth in section forty-five hundred seven of the civil practice law and rules, nor the social worker-client privilege, as set forth in section forty-five hundred eight of the civil practice law and rules, shall be a ground for excluding evidence which otherwise would be admissible.
(i) In a proceeding instituted by an authorized agency pursuant to the provisions of this section, proof of the likelihood that the child will be placed for adoption shall not be required in determining whether the best interests of the child would be promoted by the commitment of the guardianship and custody of the child to an authorized agency.
(j) The order and the papers upon which it was granted in a proceeding under this section shall be filed in the court, and a certified copy of such order shall also be filed in the office of the county clerk of the county in which such court is located, there to be recorded and to be inspected or examined in the same manner as a surrender instrument, pursuant to the provisions of section three hundred eighty-four of this chapter.
(k) Where the child is over fourteen years of age, the court may, in its discretion, consider the wishes of the child in determining whether the best interests of the child would be promoted by the commitment of the guardianship and custody of the child.
(l)(i) Notwithstanding any other law to the contrary, whenever: the child shall have been in foster care for fifteen months of the most recent twenty-two months; or a court of competent jurisdiction has determined the child to be an abandoned child; or the parent has been convicted of a crime as set forth in subdivision eight of this section, the authorized agency having care of the child shall file a petition pursuant to this section unless based on a case by case determination: (A) the child is being cared for by a relative or relatives; or (B) the agency has documented in the most recent case plan, a copy of which has been made available to the court, a compelling reason for determining that the filing of a petition would not be in the best interest of the child; or (C) the agency has not provided to the parent or parents of the child such services as it deems necessary for the safe return of the child to the parent or parents, unless such services are not legally required; or (D) the parent or parents are incarcerated, in immigration detention or immigration removal proceedings, or participating in a residential substance abuse treatment program, or the prior incarceration, immigration detention or immigration removal proceedings, or participation of a parent or parents in a residential substance abuse treatment program is a significant factor in why the child has been in foster care for fifteen of the last twenty-two months, provided that the parent maintains a meaningful role in the child's life based on the criteria set forth in subparagraph (v) of this paragraph and the agency has not documented a reason why it would otherwise be appropriate to file a petition pursuant to this section.
(ii) For the purposes of this section, a compelling reason whereby a social services official is not required to file a petition for termination of parental rights in accordance with subparagraph (i) of this paragraph includes, but is not limited to, where:
(A) the child was placed into foster care pursuant to article three or seven of the family court act and a review of the specific facts and circumstances of the child's placement demonstrate that the appropriate permanency goal for the child is either (1) return to his or her parent or guardian or (2) discharge to independent living;
(B) the child has a permanency goal other than adoption;
(C) the child is fourteen years of age or older and will not consent to his or her adoption;
(D) there are insufficient grounds for filing a petition to terminate parental rights; or
(E) the child is the subject of a pending disposition under article ten of the family court act, except where such child is already in the custody of the commissioner of social services as a result of a proceeding other than the pending article ten proceeding, and a review of the specific facts and circumstances of the child's placement demonstrate that the appropriate permanency goal for the child is discharge to his or her parent or guardian.
(iii) For the purposes of this paragraph, the date of the child's entry into foster care is the earlier of sixty days after the date on which the child was removed from the home or the date the child was found by a court to be an abused or neglected child pursuant to article ten of the family court act.
(iv) In the event that the social services official or authorized agency having care and custody of the child fails to file a petition to terminate parental rights within sixty days of the time required by this section, or within ninety days of a court direction to file a proceeding not otherwise required by this section, such proceeding may be filed by the foster parent of the child without further court order or by the attorney for the child on the direction of the court. In the event of such filing the social services official or authorized agency having care and custody of the child shall be served with notice of the proceeding and shall join the petition.
(v) For the purposes of clause (D) of subparagraph (i) of this paragraph, an assessment of whether a parent maintains a meaningful role in his or her child's life shall be based on evidence, which may include the following: a parent's expressions or acts manifesting concern for the child, such as letters, telephone calls, visits, and other forms of communication with the child; efforts by the parent to communicate and work with the authorized agency, attorney for the child, foster parent, the court, and the parent's attorney or other individuals providing services to the parent, including correctional, mental health and substance abuse treatment program personnel for the purpose of complying with the service plan and repairing, maintaining or building the parent-child relationship; a positive response by the parent to the authorized agency's diligent efforts as defined in paragraph (f) of subdivision seven of this section; and whether the continued involvement of the parent in the child's life is in the child's best interest. In assessing whether a parent maintains a meaningful role in his or her child's life, the authorized agency shall gather input from individuals and agencies in a reasonable position to help make this assessment, including but not limited to, the authorized agency, attorney for the child, parent, child, foster parent or other individuals of importance in the child's life, and parent's attorney or other individuals providing services to the parent, including correctional, mental health and substance abuse treatment program personnel. The court may make an order directing the authorized agency to undertake further steps to aid in completing its assessment.
4. An order committing the guardianship and custody of a child pursuant to this section shall be granted only upon one or more of the following grounds:
(a) Both parents of the child are dead, and no guardian of the person of such child has been lawfully appointed; or
(b) The parent or parents, whose consent to the adoption of the child would otherwise be required in accordance with section one hundred eleven of the domestic relations law, abandoned such child for the period of six months immediately prior to the date on which the petition is filed in the court; or
(c) The parent or parents, whose consent to the adoption of the child would otherwise be required in accordance with section one hundred eleven of the domestic relations law, are presently and for the foreseeable future unable, by reason of mental illness or intellectual disability, to provide proper and adequate care for a child who has been in the care of an authorized agency for the period of one year immediately prior to the date on which the petition is filed in the court; or
(d) The child is a permanently neglected child; or
(e) The parent or parents, whose consent to the adoption of the child would otherwise be required in accordance with section one hundred eleven of the domestic relations law, severely or repeatedly abused such child. Where a court has determined that reasonable efforts to reunite the child with his or her parent are not required, pursuant to the family court act or this chapter, a petition to terminate parental rights on the ground of severe abuse as set forth in subparagraph (iii) of paragraph (a) of subdivision eight of this section may be filed immediately upon such determination.
5. (a) For the purposes of this section, a child is “abandoned” by his parent if such parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency. In the absence of evidence to the contrary, such ability to visit and communicate shall be presumed.
(b) The subjective intent of the parent, whether expressed or otherwise, unsupported by evidence of the foregoing parental acts manifesting such intent, shall not preclude a determination that such parent has abandoned his or her child. In making such determination, the court shall not require a showing of diligent efforts, if any, by an authorized agency to encourage the parent to perform the acts specified in paragraph (a) of this subdivision.
6. (a) For the purposes of this section, “mental illness” means an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking or judgment to such an extent that if such child were placed in or returned to the custody of the parent, the child would be in danger of becoming a neglected child as defined in the family court act.
(b) For the purposes of this section, “intellectual disability” means subaverage intellectual functioning which originates during the developmental period and is associated with impairment in adaptive behavior to such an extent that if such child were placed in or returned to the custody of the parent, the child would be in danger of becoming a neglected child as defined in the family court act; provided, however, that case law regarding use of the phrase “mental retardation” under this section shall be applicable to the term “intellectual disability”.
(c) The legal sufficiency of the proof in a proceeding upon the ground set forth in paragraph (c) of subdivision four of this section shall not be determined until the judge has taken the testimony of a psychologist, or psychiatrist, in accordance with paragraph (e) of this subdivision.
(d) A determination or order upon a ground set forth in paragraph (c) of subdivision four shall in no way affect any other right, or constitute an adjudication of the legal status of the parent.
(e) In every proceeding upon a ground set forth in paragraph (c) of subdivision four the judge shall order the parent to be examined by, and shall take the testimony of, a qualified psychiatrist or a psychologist licensed pursuant to article one hundred fifty-three of the education law as defined in section 730.10 of the criminal procedure law in the case of a parent alleged to be mentally ill or retarded, such psychologist or psychiatrist to be appointed by the court pursuant to section thirty-five of the judiciary law. The parent and the authorized agency shall have the right to submit other psychiatric, psychological or medical evidence. If the parent refuses to submit to such court-ordered examination, or if the parent renders himself unavailable therefor whether before or after the initiation of a proceeding under this section, by departing from the state or by concealing himself therein, the appointed psychologist or psychiatrist, upon the basis of other available information, including, but not limited to, agency, hospital or clinic records, may testify without an examination of such parent, provided that such other information affords a reasonable basis for his opinion.
7. (a) For the purposes of this section, “permanently neglected child” shall mean a child who is in the care of an authorized agency and whose parent or custodian has failed for a period of either at least one year or fifteen out of the most recent twenty-two months following the date such child came into the care of an authorized agency substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so, notwithstanding the agency's diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interests of the child. The court shall consider the special circumstances of an incarcerated parent or parents, or of a parent or parents participating in a residential substance abuse treatment program, when determining whether a child is a “permanently neglected child” as defined in this paragraph. In such cases, the court also shall consider the particular constraints, including but not limited to, limitations placed on family contact and the unavailability of social or rehabilitative services to aid in the development of a meaningful relationship between the parent and his or her child, that may impact the parent's ability to substantially and continuously or repeatedly maintain contact with his or her child and to plan for the future of his or her child as defined in paragraph (c) of this subdivision. Where a court has previously determined in accordance with paragraph (b) of subdivision three of section three hundred fifty-eight-a of this chapter or section one thousand thirty-nine-b, subparagraph (A) of paragraph (i) of subdivision (b) of section one thousand fifty-two, paragraph (b) of subdivision two of section seven hundred fifty-four or paragraph (c) of subdivision two of section 352.2 of 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 defined in this section. In the event that the parent defaults after due notice of a proceeding to determine such neglect, such physical and financial ability of such parent may be presumed by the court.
(b) For the purposes of paragraph (a) of this subdivision, evidence of insubstantial or infrequent contacts by a parent with his or her child shall not, of itself, be sufficient as a matter of law to preclude a determination that such child is a permanently neglected child. A visit or communication by a parent with the child which is of such character as to overtly demonstrate a lack of affectionate and concerned parenthood shall not be deemed a substantial contact.
(c) As used in paragraph (a) of this subdivision, “to plan for the future of the child” shall mean to take such steps as may be necessary to provide an adequate, stable home and parental care for the child within a period of time which is reasonable under the financial circumstances available to the parent. The plan must be realistic and feasible, and good faith effort shall not, of itself, be determinative. In determining whether a parent has planned for the future of the child, the court may consider the failure of the parent to utilize medical, psychiatric, psychological and other social and rehabilitative services and material resources made available to such parent.
(d) For the purposes of this subdivision:
(i) A parent shall not be deemed unable to maintain contact with or plan for the future of the child by reason of such parent's use of drugs or alcohol, except while the parent is actually hospitalized or institutionalized therefor; and
(ii) The time during which a parent is actually hospitalized or institutionalized shall not interrupt, but shall not be part of, a period of failure to maintain contact with or plan for the future of a child.
(e) Notwithstanding the provisions of paragraph (a) of this subdivision, evidence of diligent efforts by an agency to encourage and strengthen the parental relationship shall not be required when:
(i) The parent has failed for a period of six months to keep the agency apprised of his or her location, provided that the court may consider the particular delays or barriers an incarcerated parent or parents, or a parent or parents participating in a residential substance abuse treatment program, may experience in keeping the agency apprised of his or her location; or
(ii) An incarcerated parent has failed on more than one occasion while incarcerated to cooperate with an authorized agency in its efforts to assist such parent to plan for the future of the child, as such phrase is defined in paragraph (c) of this subdivision, or in such agency's efforts to plan and arrange visits with the child as described in subparagraph five of paragraph (f) of this subdivision.
(f) As used in this subdivision, “diligent efforts” shall mean reasonable attempts by an authorized agency to assist, develop and encourage a meaningful relationship between the parent and child, including but not limited to:
(1) consultation and cooperation with the parents in developing a plan for appropriate services to the child and his family;
(2) making suitable arrangements for the parents to visit the child except that with respect to an incarcerated parent, arrangements for the incarcerated parent to visit the child outside the correctional facility shall not be required unless reasonably feasible and in the best interest of the child;
(3) provision of services and other assistance to the parents, except incarcerated parents, so that problems preventing the discharge of the child from care may be resolved or ameliorated;
(4) informing the parents at appropriate intervals of the child's progress, development and health;
(5) making suitable arrangements with a correctional facility and other appropriate persons for an incarcerated parent to visit the child within the correctional facility, if such visiting is in the best interests of the child. When no visitation between child and incarcerated parent has been arranged for or permitted by the authorized agency because such visitation is determined not to be in the best interest of the child, then no permanent neglect proceeding under this subdivision shall be initiated on the basis of the lack of such visitation. Such arrangements shall include, but shall not be limited to, the transportation of the child to the correctional facility, and providing or suggesting social or rehabilitative services to resolve or correct the problems other than incarceration itself which impair the incarcerated parent's ability to maintain contact with the child. When the parent is incarcerated in a correctional facility located outside the state, the provisions of this subparagraph shall be construed to require that an authorized agency make such arrangements with the correctional facility only if reasonably feasible and permissible in accordance with the laws and regulations applicable to such facility; and
(6) providing information which the authorized agency shall obtain from the office of children and family services, outlining the legal rights and obligations of a parent who is incarcerated or in a residential substance abuse treatment program whose child is in custody of an authorized agency, and on social or rehabilitative services available in the community, including family visiting services, to aid in the development of a meaningful relationship between the parent and child. Wherever possible, such information shall include transitional and family support services located in the community to which an incarcerated parent or parent participating in a residential substance abuse treatment program shall return.
8. (a) For the purposes of this section a child is “severely abused” by his or her parent 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 subdivision ten of section 10.00 of the penal law; or
(ii) [Eff. until Sept. 1, 2024. See, also, subpar. (ii) below.] the child has been found to be an abused child, as defined in paragraph (iii) of subdivision (e) of section ten hundred twelve of the family court act, as a result of such parent's acts; provided, however, the respondent must have committed or knowingly allowed to be committed a felony sex offense as defined in sections 130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67, 130.70, 130.75, 130.80, 130.95 and 130.96 of the penal law and, for the purposes of this section the corroboration requirements contained in the penal law shall not apply to proceedings under this section; or
(ii) [Eff. Sept. 1, 2024. See, also, subpar. (ii) above.] the child has been found to be an abused child, as defined in paragraph (iii) of subdivision (e) of section ten hundred twelve of the family court act, as a result of such parent's acts; provided, however, the respondent must have committed or knowingly allowed to be committed a felony sex offense as defined in sections 130.25, 130.30, 130.35, former sections 130.40, 130.45, 130.50, sections 130.65, 130.67, 130.70, 130.75, 130.80, 130.95 and 130.96 of the penal law and, for the purposes of this section the corroboration requirements contained in the penal law shall not apply to proceedings under this section; or
(iii) (A) the parent of such child has been convicted of murder in the first degree as defined in section 125.27, murder in the second degree as defined in section 125.25, manslaughter in the first degree as defined in section 125.20, or manslaughter in the second degree as defined in section 125.15, and the victim of any such crime was another child of the parent or another child for whose care such parent is or has been legally responsible as defined in subdivision (g) of section one thousand twelve of the family court act, or another parent of the child, unless the convicted parent was a victim of physical, sexual or psychological abuse by the decedent parent and such abuse was a factor in causing the homicide; or has been convicted of an attempt to commit any of the foregoing crimes, 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 as defined in subdivision (g) of section one thousand twelve of the family court act, or another parent of the child, unless the convicted parent was a victim of physical, sexual or psychological abuse by the decedent parent and such abuse was a factor in causing the attempted homicide; (B) the parent of such child has been convicted of criminal solicitation as defined in article one hundred, conspiracy as defined in article one hundred five or criminal facilitation as defined in article one hundred fifteen of the penal law for conspiring, soliciting or facilitating any of the foregoing crimes, 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; (C) the parent of such child has been convicted of assault in the second degree as defined in section 120.05, assault in the first degree as defined in section 120.10 or aggravated assault upon a person less than eleven years old as defined in section 120.12 of the penal law, and the victim of any such crime was the child or another child of the parent or another child for whose care such parent is or has been legally responsible; or has been convicted of an attempt to commit any of the foregoing crimes, 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 (D) 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 any crime specified in clause (A), (B) or (C) of this subparagraph; 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.
(b) For the purposes of this section a child is “repeatedly abused” by his or her parent if:
(i) [Eff. until Sept. 1, 2024. See, also, subpar. (i) below.] the child has been found to be an abused child, (A) as defined in paragraph (i) of subdivision (e) of section ten hundred twelve of the family court act, as a result of such parent's acts; or (B) as defined in paragraph (iii) of subdivision (e) of section ten hundred twelve of the family court act, as a result of such parent's acts; provided, however, the respondent must have committed or knowingly allowed to be committed a felony sex offense as defined in sections 130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67, 130.70, 130.75, 130.80, 130.95 and 130.96 of the penal law; and
(i) [Eff. Sept. 1, 2024. See, also, subpar. (i) above.] the child has been found to be an abused child, (A) as defined in paragraph (i) of subdivision (e) of section ten hundred twelve of the family court act, as a result of such parent's acts; or (B) as defined in paragraph (iii) of subdivision (e) of section ten hundred twelve of the family court act, as a result of such parent's acts; provided, however, the respondent must have committed or knowingly allowed to be committed a felony sex offense as defined in sections 130.25, 130.30, 130.35, former sections 130.40, 130.45, 130.50, sections 130.65, 130.67, 130.70, 130.75, 130.80, 130.95 and 130.96 of the penal law; and
(ii) [Eff. until Sept. 1, 2024. See, also, subpar. (ii) below.] (A) the child or another child for whose care such parent is or has been legally responsible has been previously found, within the five years immediately preceding the initiation of the proceeding in which such abuse is found, to be an abused child, as defined in paragraph (i) or (iii) of subdivision (e) of section ten hundred twelve of the family court act, as a result of such parent's acts; provided, however, in the case of a finding of abuse as defined in paragraph (iii) of subdivision (e) of section ten hundred twelve of the family court act the respondent must have committed or knowingly allowed to be committed a felony sex offense as defined in sections 130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67, 130.70, 130.75 and 130.80 of the penal law, or (B) the parent has been convicted of a crime under section 130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67, 130.70, 130.75 or 130.80 of the penal law against the child, a sibling of the child or another child for whose care such parent is or has been legally responsible, within the five year period immediately preceding the initiation of the proceeding in which abuse is found; and
(ii) [Eff. Sept. 1, 2024. See, also, subpar. (ii) above.] (A) the child or another child for whose care such parent is or has been legally responsible has been previously found, within the five years immediately preceding the initiation of the proceeding in which such abuse is found, to be an abused child, as defined in paragraph (i) or (iii) of subdivision (e) of section ten hundred twelve of the family court act, as a result of such parent's acts; provided, however, in the case of a finding of abuse as defined in paragraph (iii) of subdivision (e) of section ten hundred twelve of the family court act the respondent must have committed or knowingly allowed to be committed a felony sex offense as defined in sections 130.25, 130.30, 130.35, former sections 130.40, 130.45, 130.50, sections 130.65, 130.67, 130.70, 130.75 and 130.80 of the penal law, or (B) the parent has been convicted of a crime under section 130.25, 130.30, 130.35, former sections 130.40, 130.45, 130.50, sections 130.65, 130.67, 130.70, 130.75 or 130.80 of the penal law against the child, a sibling of the child or another child for whose care such parent is or has been legally responsible, within the five year period immediately preceding the initiation of the proceeding in which abuse is found; and
(iii) 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.
(c) Notwithstanding any other provision of law, the requirements of paragraph (g) of subdivision three of this section shall be satisfied if one of the findings of abuse pursuant to subparagraph (i) or (ii) of paragraph (b) of this subdivision is found to be based on clear and convincing evidence.
(d) A determination by the court in accordance with article ten of the family court act based upon clear and convincing evidence that the child was a severely abused child as defined in subparagraphs (i) and (ii) of paragraph (a) of this subdivision shall establish that the child was a severely abused child in accordance with this section. Such a determination by the court in accordance with article ten of the family court act based upon a fair preponderance of evidence shall be admissible in any proceeding commenced in accordance with this section.
(e) [Eff. until Sept. 1, 2024. See, also, par. (e) below.] A determination by the court in accordance with article ten of the family court act based upon clear and convincing evidence that a child was abused1 as defined in paragraph (i) of subdivision (e) of section ten hundred twelve of the family court act, as a result of such parent's acts; or (B) as defined in paragraph (iii) of subdivision (e) of section ten hundred twelve of the family court act, as a result of such parent's acts; provided, however, the respondent must have committed or knowingly allowed to be committed a felony sex offense as defined in sections 130.25, 130.30, 130.35, 130.40, 130.45, 130.50, 130.65, 130.67, 130.70, 130.75 and 130.80 of the penal law shall establish that the child was an abused child for the purpose of a determination as required by subparagraph (i) or (ii) of paragraph (b) of this subdivision. Such a determination by the court in accordance with article ten of the family court act based upon a fair preponderance of evidence shall be admissible in any proceeding commenced in accordance with this section.
(e) [Eff. Sept. 1, 2024. See, also, par. (e) above.] A determination by the court in accordance with article ten of the family court act based upon clear and convincing evidence that a child was abused (A) as defined in paragraph (i) of subdivision (e) of section ten hundred twelve of the family court act, as a result of such parent's acts; or (B) as defined in paragraph (iii) of subdivision (e) of section ten hundred twelve of the family court act, as a result of such parent's acts; provided, however, the respondent must have committed or knowingly allowed to be committed a felony sex offense as defined in sections 130.25, 130.30, 130.35, former sections 130.40, 130.45, 130.50, sections 130.65, 130.67, 130.70, 130.75 and 130.80 of the penal law shall establish that the child was an abused child for the purpose of a determination as required by subparagraph (i) or (ii) of paragraph (b) of this subdivision. Such a determination by the court in accordance with article ten of the family court act based upon a fair preponderance of evidence shall be admissible in any proceeding commenced in accordance with this section.
(f) Upon a finding pursuant to paragraph (a) or (b) of this subdivision that the child has been severely or repeatedly abused by his or her parent, the court shall enter an order of disposition either (i) committing the guardianship and custody of the child, pursuant to this section, or (ii) suspending judgment in accordance with section six hundred thirty-three of the family court act, upon a further finding, based on clear and convincing, competent, material and relevant evidence introduced in a dispositional hearing, that the best interests of the child require such commitment or suspension of judgment. Where the disposition ordered is the commitment of guardianship and custody pursuant to this section, an initial freed child permanency hearing shall be completed pursuant to section one thousand eighty-nine of the family court act.
9. Nothing in this section shall be construed to terminate, upon commitment of the guardianship and custody of a child to an authorized agency or foster parent, any rights and benefits, including but not limited to rights relating to contact with siblings, inheritance, succession, social security, insurance and wrongful death action claims, possessed by or available to the child pursuant to any other provision of law. For purposes of this section, “siblings” shall include half-siblings and those who would be deemed siblings or half-siblings but for the termination of parental rights or death of a parent. Notwithstanding any other provision of law, a child committed to the custody and guardianship of an authorized agency pursuant to this section shall be deemed to continue in foster care until such time as an adoption or another planned permanent living arrangement is finalized. Where the disposition ordered is the commitment of guardianship and custody pursuant to this section, an initial freed child permanency hearing shall be held pursuant to section one thousand eighty-nine of the family court act.
10. Upon the court's order transferring custody and guardianship to the commissioner, the attorney for the petitioning authorized agency shall promptly serve upon the persons who have been approved by such agency as the child's adoptive parents, notice of entry of such order and advise such persons that an adoption proceeding may be commenced. In accordance with the regulations of the department, the authorized agency shall advise such persons of the procedures necessary for adoption of the child. The authorized agency shall cooperate with such persons in the provision of necessary documentation.
11. Upon the entry of an order committing the guardianship and custody of a child pursuant to this section, the court shall inquire whether any foster parent or parents with whom the child resides, or any relative of the child, or other person, seeks to adopt such child. If such person or persons do seek to adopt such child, such person or persons may submit, and the court shall accept, all such petitions for the adoption of the child, together with an adoption home study, if any, completed by an authorized agency or disinterested person as such term is defined in subdivision three of section one hundred sixteen of the domestic relations law. The court shall thereafter establish a schedule for completion of other inquiries and investigations necessary to complete review of the adoption of the child and shall immediately set a schedule for completion of the adoption.
12. Repealed by L.2022, c. 828, § 9, eff. Dec. 30, 2022.
13. A petition to modify a disposition of commitment of guardianship and custody in order to restore parental rights may be brought in accordance with part one-A of article six of the family court act where the conditions enumerated in section six hundred thirty-five of such part have been met.
( L.2023, c. 777, § 36, eff. Sept. 1, 2024; L.2024, c. 23, § 33, eff. Sept. 1, 2024.)
Laws of 2024, Ch 94 amended Family Court Act §783 effective March 7, 2024
This was a chapter amendment that made changes to provisions of Laws of 2023,
Ch. 691, as it relates to expunging records of persons in need of supervision (PINS) cases in Family Court. The legislation amended the underlying chapter by creating a carve out for service records maintained by social service departments from the records destroyed as part of the expungement process in Section 1. Section 1 further clarifies that all foster care and preventive service records maintained by a local district will remain subject to the confidentiality provisions that govern said records within article six of the social services law. The legislation also adds local educational agencies to the list of entities with expungement responsibilities in cases where the educational agency is a petitioner in a PINS case. Additionally, the legislation makes modifications to the purposes for which a lead agency is able to access their own sealed records, including the addition of when the information is necessary for the department to make eligibility
determinations or for federal audit purposes. The effective date of the legislation was modified from ninety days to one year, with the office of children and family services being required to update necessary systems to effectuate the requirements of the bill on or before one hundred and eighty days after it shall have become law. This act takes effect on the same day and in the same manner as a chapter of the laws of 2023 amending the family court act relating to expungement of records in persons in need of supervision cases in the family court, as proposed in legislative bills number 5.7444 and A.6544, takes effect. ( NY Legis Memo 94 (2024)
Family Court Act 783 reads as follows:
§ 783. Use of records in other court; expungement of records
Currentness
(a) Neither the fact that a person was before the family court under this article for a hearing nor any confession, admission or statement made by him or her to the court or to any officer thereof in any stage of the proceeding is admissible as evidence against him or her or his or her interests in any other court.
(b) For purposes of this section, “expungement” shall mean that all official records and papers, including judgments and orders of the court, but not including public court decisions or opinions or records and briefs on appeal, relating to the arrest, prosecution and court proceedings and records of the probation service and designated lead agency, including all duplicates or copies thereof, on file with the court, police department and law enforcement agency, probation service, designated lead agency and presentment agency, if any, shall be destroyed and, except for records sealed as provided in paragraphs (v) and (vi) of subdivision (c) of this section, shall not be made available to any person or public or private agency. Provided, however, that foster care and preventive service records maintained by social services departments relating to a proceeding under this article shall not be subject to expungement or sealing under this section and shall be held confidential in accordance with article six of the social services law.
(c) Automatic expungement of records of a proceeding under this article that is terminated in favor of the respondent. (i) Upon termination of a proceeding under this article in favor of the respondent, the clerk of the court shall immediately notify and direct the directors of the appropriate probation department, designated lead agency pursuant to section seven hundred thirty-five of this article, a local educational agency if an official of such agency was the petitioner pursuant to section seven hundred thirty-three of this article and, if a presentment agency represented the petitioner in the proceeding, such agency, that the proceeding has terminated in favor of the respondent and that the records, if any, of such action or proceeding on file with such offices shall be expunged. If the respondent had been the subject of a warrant or an arrest in connection with the proceeding, or law enforcement was the referring agency or petitioner pursuant to section seven hundred thirty-three of this article, the notice shall also be sent to the appropriate police department or law enforcement agency. Upon receipt of such notification, the records shall be expunged in accordance with subdivision (b) of this section. The attorney for the respondent shall be notified by the clerk of the court in writing of the date and agencies and departments to which such notifications were sent.
(ii) For the purposes of this section, a proceeding under this article shall be considered terminated in favor of a respondent where the proceeding has been:
(A) diverted prior to the filing of a petition pursuant to subdivision (g) of section seven hundred thirty-five of this article or subsequent to the filing of a petition pursuant to subdivision (b) of section seven hundred forty-two of this article; or
(B) withdrawn or dismissed for failure to prosecute, or for any other reason at any stage; or
(C) dismissed following an adjournment in contemplation of dismissal pursuant to subdivision (a) of section seven hundred forty-nine of this article; or
(D) resulted in an adjudication where the only finding was for a violation of former section 221.05 or section 230.00 of the penal law; provided, however, that with respect to findings under this paragraph, the expungement required by this section shall not take place until the conclusion of the period of any disposition or extension under this article.
(iii) If, with respect to a respondent who had been the subject of a warrant or an arrest in connection with the proceeding, or law enforcement was the referring agency, the designated lead agency diverts a case either prior to or subsequent to the filing of a petition under this article, the designated lead agency shall notify the appropriate probation service and police department or law enforcement agency in writing of such diversion. Such notification may be on a form prescribed by the chief administrator of the courts. Upon receipt of such notification, the probation service and police department or law enforcement agency shall expunge any records in accordance with subdivision (b) of this section in the same manner as is required thereunder with respect to an order of a court.
(iv) If, following the referral of a proceeding under this article for the filing of a petition, the petitioner or, if represented by a presentment agency, such agency, elects not to file a petition under this article, the petitioner or, if applicable, the presentment agency, shall notify the appropriate probation service and designated lead agency of such determination. Such notification may be on a form prescribed by the chief administrator of the courts and may be transmitted by electronic means. If the respondent had been the subject of a warrant or an arrest in connection with the proceeding, or law enforcement was the referring agency, the notification shall also be sent to the appropriate police department or law enforcement agency. Upon receipt of such notification, the records shall be expunged in accordance with subdivision (b) of this section in the same manner as is required thereunder with respect to an order of a court, provided, however, that the designated lead agency may have access to its own records in accordance with paragraph (v) of this subdivision.
(v) Where a proceeding has been diverted pursuant to subparagraph (A) of paragraph (ii) of this subdivision or where a proceeding has been referred for the filing of a petition but the potential petitioner or, if represented by a presentment agency, such agency, elects not to file a petition in accordance with paragraph (iv) of this subdivision, upon receipt of written notice the designated lead agency shall seal any records related to the proceeding under this section that are in its possession, but shall have access to such records solely for the following purposes:
(A) where there is continuing or subsequent contact with the child under this article; or
(B) where the information is necessary for such department to determine what services had been arranged or provided to the family or where the commissioner determines that the information is necessary in order for the commissioner of such department to comply with section four hundred twenty-two-a of the social services law.
(vi) Records sealed under this section shall be made available to the juvenile or his or her agent and, where the petitioner or potential petitioner is a parent or other person legally responsible for the juvenile's care, such parent or other person. No statement made to a designated lead agency by the juvenile or his or her parent or other person legally responsible that is contained in a record expunged or sealed under this section shall be admissible in any court proceeding, except upon the consent or at the request, respectively, of the juvenile or his or her parent or other person legally responsible for the juvenile's care.
(vii) A respondent in whose favor a proceeding was terminated prior to the effective date of this paragraph may, upon motion, apply to the court, upon not less than twenty days notice to the petitioner or (where the petitioner is represented by a presentment agency) such agency, for an order granting the relief set forth in paragraph (i) of this subdivision. Where a proceeding under this article was terminated in favor of the respondent in accordance with paragraph (iii) or (iv) of this subdivision prior to the effective date of this paragraph, the respondent may apply to the designated lead agency, petitioner or presentment agency, as applicable, for a notification as described in such paragraphs granting the relief set forth therein and such notification shall be granted.
(d) Motion to expunge after an adjudication and disposition. (i) If an action has resulted in an adjudication and disposition under this article, the court may, in the interest of justice and upon motion of the respondent, order the expungement of the records and proceedings.
(ii) Such motion must be in writing and may be filed at any time subsequent to the conclusion of the disposition, including, but not limited to, the expiration of the period of placement, suspended judgment, order of protection or probation or any extension thereof. Notice of such motion shall be served not less than eight days prior to the return date of the motion upon the petitioner or, if the petitioner was represented by a presentment agency, such agency. Answering affidavits shall be served at least two days before the return date.
(iii) The court shall set forth in a written order its reasons for granting or denying the motion. If the court grants the motion, all court records, as well as all records in the possession of the designated lead agency, the probation service, the presentment agency, if any, and, if the respondent had been the subject of a warrant or an arrest in connection with the proceeding, or if the police or law enforcement agency was the referring agency or petitioner pursuant to section seven hundred thirty-three of this article, the appropriate police or law enforcement agency, shall be expunged in accordance with subdivision (b) of this section.
(e) Automatic expungement of court records. All records under this article shall be automatically expunged upon the respondent's twenty-first birthday unless earlier expunged under this section, provided that expungement under this paragraph shall not take place until the conclusion of the period of any disposition or extension under this article.
(f) Expungement of court records; inherent power. Nothing contained in this article shall preclude the court's use of its inherent power to order the expungement of court records.
(L.1962, c. 686. Amended L.2023, c. 691, § 1, eff. March 7, 2024; L.2024, c. 94, § 1, eff. March 7, 2024.)
Court Rules
22 NYCRR 202.12 Preliminary Conference rule Amended
The Preliminary Conference rule in 22 NYCRR 202.12 was amended on May 13, 2024 (AO/156/24) effective May 20, 2024. The amended 22 NYCRR 202.12 (k) provides that the provisions of this section shall apply to preliminary conferences required in matrimonial actions and actions based upon a separation agreement only to the extent that these provisions are not inconsistent with the provisions of 22 NYCRR 202.16.
S22 NYCRR 202.16 (k) provides that the provisions of this section shall apply to preliminary conferences required in matrimonial actions and actions based upon a separation agreement, only to the extent that these provisions are not inconsistent with the provisions of 22 NYCRR 202.16. It appears that the Preamble, and subdivisions (a), (b) (c) (d) (e) (f) and (g) are inconsistent with 22 NYCRR 202.16, and subdivisions (h) (i) (j) and (k) are not inconsistent with 22 NYCRR 202.16 (k)
The amended rule provides:
Section 202.12 Preliminary Conference.
Preamble.
The parties, with the court's assistance, are encouraged to consider as early as possible how best to achieve the most efficient, expeditious and cost-effective resolution of every case. A preliminary conference will frequently be a useful and even critical tool for furthering these goals. A preliminary conference should be held before the assigned judge, soon after commencement of the case and after the parties have conferred. An in-person conference should not be held, however, if such conference will be non-substantive or involve only the submission of a stipulated order (for example, because of the nature of the case or the caseload of the particular court or the assigned judge, or otherwise). In such cases, stipulations should be submitted or a scheduling order should be issued in accordance with subdivisions (b) or (g) of this section and counsel should not be required to appear. Further, pursuant to section 202.10 of this part, the court may also in its discretion, address preliminary conference matters, in whole or in part, telephonically or by remote technology with the attorneys for all parties.
When preliminary conferences are held, the court shall engage the parties in a discussion of the merits of the case aimed at determining how best to resolve the dispute as expeditiously and efficiently as possible. Among other topics, the court and the parties may consider at the preliminary conference:
• the principal factual and legal issues in dispute;
• the timing of presumptive mediation and the appropriateness of other forms of alternative dispute resolution for the dispute;
• the timetable for the proceedings, including the appropriateness of sequencing motion practice, discovery or other aspects of the case, to address threshold dispositive issues while discovery on other issues is held in abeyance;
• other matters as set forth in subdivision (c) of this section; and
• the date for a subsequent conference to follow-up on the matters discussed at the preliminary conference.
(a) A party may request a preliminary conference at any time after service of process. The request shall state the title of the action; index number; names, addresses, and telephone numbers and email addresses of all attorneys appearing in the action; and the nature of the action. If the action has not been assigned to a judge, the party shall file a request for judicial intervention together with the request for a preliminary conference. The request shall be served on all other parties and filed with the clerk for transmittal to the assigned judge. The court shall order a date for preliminary conference in any action upon such request and subject to the following
(b) In the absence of a party request as set forth in subdivision (a), and except as provided in subdivision (g), after the filing of a request for judicial intervention, the court shall promptly email to all parties the form of a stipulation and order, prescribed by the Chief Administrator of the Courts which shall provide for completion of disclosure within twelve (12) months of the filing of the request for judicial intervention for a standard case, or within fifteen (15) months of such filing for a complex case. The form of the stipulation shall contain a certification by attorneys for the parties that they have met and conferred on the items set forth in sections 202.11 and 202.12(c). If all parties sign the form and return it to the court within thirty (30) days, such form shall be "so ordered" by the court and no preliminary conference shall be held unless the court orders otherwise. If such stipulation is not returned signed by all parties, the court shall schedule a conference to be held virtually before the court or, in the court's discretion, nonjudicial personnel, for the purpose of completing the form stipulation. Except where a party appears in the action pro se, an attorney thoroughly familiar with the action and authorized to act on behalf of the party shall appear at such conference.
(1) If the parties agree on the form stipulation it may be "so ordered" by the court. Where the parties cannot agree, or where issues arise that need judicial intervention, the court may schedule a conference before the assigned judge or before the judge in charge of the preliminary conference part. At the discretion of the court, the conference may be held virtually or in person.
(2) At the preliminary conference the parties shall be prepared to discuss the items set forth in sections 202.11 and 202.12(c) and such other items as the court may direct.
(c) Where a case is reasonably likely to include electronic discovery, attorneys for all parties shall meet and confer on the subject of electronic discovery. If the parties are unable to reach a stipulation governing electronic discovery, the court may direct a conference on the subject. The parties or attorneys appearing at such conference must be sufficiently versed in matters relating to their clients' technological systems to discuss competently all issues relating to electronic discovery, and attorneys may bring a client representative or outside expert to assist in such e-discovery discussions. A non-exhaustive list of considerations for determining whether a case is reasonably likely to include electronic discovery is:
(1) Does potentially relevant electronically stored information ("ESI") exist;
(2) Do any of the parties intend to seek or rely upon ESI;
(3) Are there less costly or less burdensome alternatives to secure the necessary information without recourse to discovery of ESI;
(4) The cost and burden of preserving and producing ESI and whether such costs and burdens are proportional to the amount in controversy; and
(5) What is the likelihood that discovery of ESI will aid in the resolution of the dispute.
(d) The court may, in its discretion, either in advance of the preliminary conference or in response to the filing of the stipulation and order contemplated by subdivision (b) of this section, require the parties to provide to the court their positions on each of the items in sections 202.11 and 202.12(c) and such other matters as the court deems necessary or appropriate.
(e) The matters which may be considered at a preliminary conference or at the first conference before the court if the preliminary conference has been cancelled under sections 202.12(b) or 202.12(g), shall include:
(1) the positions of the litigants on the matters described in sections 202.11 and 202.12(c), particularly alternative methods for resolving the dispute, simplification and limitation of factual and legal issues, where appropriate, expedited disposition of the action, and effective controls to prevent protracted litigation due to lack of judicial management;
(2) the terms, provisions and schedule included in the stipulation described above submitted by the attorneys for the litigants, and the establishment of a timetable for the completion of all disclosure proceedings, provided that all such procedures must be completed within the timeframes set forth in subdivision (b) of this section, unless otherwise shortened or extended by the court depending upon the circumstances of the case;
(3) Where the court deems appropriate, it may establish the method and scope of any electronic discovery. In establishing the method and scope of electronic discovery, the court may consider the following non-exhaustive list, including but not limited to:
(i) identification of potentially relevant types or categories of ESI and the relevant time frame;
(ii) disclosure of the applications and manner in which the ESI is maintained;
(iii) identification of potentially relevant sources of ESI and whether the ESI is reasonably accessible;
(iv) implementation of a preservation plan for potentially relevant ESI;
(v) identification of the individual(s) responsible for preservation of ESI;
(vi) the scope, extent, order, and form of production;
(vii) identification, redaction, labeling, and logging of privileged or confidential ESI;
(viii) claw-back or other provisions for privileged or protected ESI;
(ix) the scope or method for searching and reviewing ESI; and
(x) the anticipated cost and burden of data recovery and proposed initial allocation of such cost.
(4) addition of other necessary parties;
(5) settlement of the action;
(6) removal to a lower court pursuant to CPLR 325, where appropriate; and
(7) any other matters that the court may deem relevant.
(f) At the conclusion of the conference, the court shall make a written order including its directions to the parties as well as stipulations of the parties' attorneys. Alternatively, in the court's discretion, all directions of the court and stipulations of the attorneys may be recorded by a reporter. Where the latter procedure is followed, the parties shall procure and share equally the cost of a transcript thereof unless the court in its discretion otherwise provides. The transcript, corrected if necessary on motion or by stipulation of the parties approved by the court, shall have the force and effect of an order of the court. The transcript shall be filed by the plaintiff with the clerk of the court.
(g) In its discretion, taking into account the caseload of the court, the nature of the claim, the absence of an IAS judge to preside, the inability of a defendant to retain counsel, the failure of an insurer to appoint counsel, or the inability of the parties to meet and confer, the presiding court, either in advance of the preliminary conference or at the request of one of the parties, may issue to all parties a case scheduling order setting forth a timetable which shall provide for completion of disclosure within 12 months of the filing of the request for judicial intervention for a standard case, or within 15 months of such filing for a complex case. If a case scheduling order is issued by the court the order may also provide for other terms and conditions as the court deems appropriate, and the preliminary conference shall be cancelled. In response to such scheduling order, any party may, within 10 days of entry of the scheduling order, object thereto and request a preliminary conference as described above.
(h) In the discretion of the court, failure by a party to comply with the order or transcript resulting from the preliminary conference, or with the so-ordered stipulation or scheduling order provided for in subdivisions (b) and (g) of this section, or the making of unnecessary or frivolous motions by a party, shall result in the imposition upon such party of costs or such other sanctions as are authorized by law.
(i) A party may request the court to advance the date of a preliminary conference upon a showing of appropriate circumstances. During the course of the case, any party may request such additional conferences as appropriate. The court will give the attorneys notice of the conference at least one week before any conference unless there are special circumstances requiring an earlier conference.
(j) The court, in its discretion, at any time may order such conferences as the court may deem helpful or necessary in any matter before the court.
(k) The provisions of this section shall apply to preliminary conferences required in matrimonial actions and actions based upon a separation agreement, in medical malpractice actions, and in real property tax assessment review proceedings within the City of New York, only to the extent that these provisions are not inconsistent with the provisions of sections 202.16, 202.56 and 202.60 of this Part, respectively.
(l) The provisions of this section shall apply where a request is filed for a preliminary conference in an action involving a terminally ill party governed by CPLR 3407 only to the extent that the provisions of this section are not inconsistent with the provisions of CPLR 3407. In an action governed by CPLR 3407 the request for a preliminary conference may be filed at any time after commencement of the action, and shall be accompanied by the physician's affidavit required by that provision.
Amended (a) - (l) on May 13, 2024, effective May 20, 2024
May 15, 2024
An attorney can be granted summary judgment on an account stated claim based on the defendant’s receipt and retention of a plaintiff law firm’s invoices seeking payment for professional services rendered, without objection within a reasonable time, even where there is a retainer agreement
In Aronson Mayefsky & Sloan, LLP,, v. Praeger, --- N.Y.S.3d ----, 2024 WL 2138638, 2024 N.Y. Slip Op. 02657 (1st Dept.,2024) the Appellate Division made it clear that the rule in the First Department is that an account stated claim is an independent cause of action that is not duplicative of a claim for breach of contract. Plaintiffs Aronson Mayefsky & Sloan, LLP (AMS) and Mosberg Sharma Stambleck & Gross, LLP (MSSG) represented defendant in his divorce action pursuant to a retainer agreement between defendant and AMS dated January 16, 2019, and a retainer agreement between defendant and MSSG dated January 20, 2022. AMS and MSSG rendered bills to defendant on a monthly basis, but defendant’s payments stopped after September 30, 2022. AMS and MSSG continued to represent defendant from October 2022 through the end of January 2023. Defendant did not express dissatisfaction with the quality of the work performed and he did not express an inability to pay. From time to time, AMS and defendant would agree upon accommodations reducing some of the amounts owed. Ultimately, due to defendant’s continued failure to pay, AMS and MSSG moved to withdraw as counsel, and that motion was granted. Plaintiffs commenced an action seeking to recover legal fees and disbursements they incurred while representing defendant in his divorce. They asserted claims for account stated and breach of the retainer agreement.The court found that plaintiffs were entitled to summary judgment on their account stated claims and dismissal of defendant’s counterclaim. In its decision affirming the order the Appellate Division explained why an account stated claim is not duplicative of a . A defendant’s receipt and retention of the plaintiff law firm’s invoices seeking payment for professional services rendered, without objection within a reasonable time, gives rise to an actionable account stated, thereby entitling the plaintiff to summary judgment in its favor. When a law firm is asserting an account stated claim, it “does not have to establish the reasonableness of its fee” because the client’s act of retaining the invoice without objection will be considered acquiescence as to its correctness. This case fell squarely within its well-established precedent that an attorney can be granted summary judgment on an account stated claim based on the defendant’s receipt and retention of a plaintiff law firm’s invoices seeking payment for professional services rendered, without objection within a reasonable time, even where there is a retainer agreement. As a result, the court properly granted summary judgment to plaintiffs on their account stated claims.
A court’s power to dismiss a complaint, sua sponte, is to be used sparingly, and only when extraordinary circumstances exist to warrant dismissal.
In Ivashchenko v. Ruben Borukhov, --- N.Y.S.3d ----, 2024 WL 2035454, 2024 N.Y. Slip Op. 02526 (2d Dept.,2024) the plaintiff commenced an action against the defendant, seeking a divorce. The defendant moved to dismiss the first cause of action. The plaintiff moved for certain pendente lite relief. The Supreme Court, sua sponte, directed dismissal of the complaint, denied, in effect, as academic, the plaintiff’s motion for certain pendente lite relief, and denied, as academic, the defendant’s motion to dismiss the first cause of action. The Appellate Division reversed. It held that a court’s power to dismiss a complaint, sua sponte, is to be used sparingly, and only when extraordinary circumstances exist to warrant dismissal. The Supreme Court did not identify any extraordinary circumstances warranting sua sponte dismissal of the complaint (see Matter of Weindling v. Berkowitz, 157 A.D.3d at 804, 69 N.Y.S.3d 340). The plaintiff moved, inter alia, to consolidate custody and family offense proceedings that were pending in the Family Court, Queens County, and the Family Court, Kings County, with this action. There was no motion to dismiss the complaint in its entirety or to change venue before the court. It reversed the order and remitted the matter to the Supreme Court, Kings County, for a determination on the merits of the plaintiff’s motion for certain pendente lite relief and the defendant’s motion to dismiss the first cause of action.
Due to the commingling of funds with the proceeds of her personal injury recovery the wife could not sufficiently delineate any of the funds in the joint account as separate property, and the Court did not err in determining that the funds used for the improvement to the marital residence were not the wife’s separate property and that she was not entitled to a credit for improvements.
In St. John v Beinart-St. John, --- N.Y.S.3d ----, 2024 WL 2063971, 2024 N.Y. Slip Op. 02565 (3d Dept.,2024) the parties were married in 2003 and had three children together. In 2018, the wife filed for divorce. After a nonjury trial, Supreme Court ordered that the proceeds of the sale of the marital residence be equally divided. The wife appealed contending that Supreme Court erred by failing to grant her credits for her investment of her personal injury proceeds to the improvements of the marital residence and the investment of gifted funds from her mother that were used for the purchase of the marital residence. The Appellate Division found the wife’s mother testified that she gave the wife $10,000 to make a down payment on the marital residence and, after the husband called the mother from the closing, $2,300 to assist with the closing costs. The mother testified that the money was a gift intended for the wife and any benefit that the husband received was ancillary. The wife testified similarly and explained that the money was never deposited into an account in the husband’s name. As for the personal injury proceeds, the wife testified that in 2015 she received $135,000 from a lawsuit settlement against her former employer; $100,000 for emotional and personal distress and $35,000 for lost wages. The proceeds were deposited into her personal checking account, which was in her name alone. The wife also testified that her paycheck was deposited into the same account, and that it was this account that was used to pay bills. The wife ultimately used these funds to satisfy the husband’s debt and make improvements to the marital residence.. Receipts were stipulated into evidence demonstrating the total cost of these improvements. A licensed real estate appraiser testified that these improvements attributed to a 14% increase in the value of the home. The husband testified mostly in conformity with the wife but stated that the funds for the down payment contributed by the wife’s mother were put into a joint account. The husband also explained that each of the parties maintained their own individual accounts and that their paychecks were deposited into those respective accounts. Supreme Court ultimately determined that neither the wife nor the husband established an entitlement to more than 50% of the proceeds from the sale of the marital residence. The court found that the wife was not entitled to a credit for either the gifted down payment or the improvements made to the marital residence. The Appellate Division affirmed. As to the gift from the mother, the wife’s claim that the gift was only intended for her was belied by the mother’s own testimony that the husband was the one who called and asked the mother for the additional funds for closing costs. Moreover, as the court indicted, the wife did not establish that she maintained the funds provided by the mother separate from marital funds. Therefore, the wife failed to establish that the money from the mother used to purchase the marital residence was a gift to her alone. As to the wife’s request for a separate property credit in the amount of improvements made to the marital residence, her testimony and bank records established that the proceeds used to make the improvements to the home were drawn from an account that contained the settlement proceeds as well as the wife’s paychecks and other deposits. Given that the part of the settlement that was for lost wages and the wife’s paycheck deposits were marital property the only property in the account that was not marital property would be the proceeds from the lawsuit that were attributed to personal injury. However, due to the commingling of funds that make it so the wife could not sufficiently delineate any of the funds in the account as separate property , Supreme Court did not err in determining that the funds used for the improvement to the marital residence were not the wife’s separate property and that she was not entitled to a credit for said improvements.
The determination to divide the mortgage balance equitably between the parties was intended as a distribution of marital debt, not a form of maintenance. Distributive awards and maintenance awards serve distinct purposes. In view of these distinct purposes, courts have previously indicated that the treatment of a distributive award as maintenance is improper
In Monroe v Monroe, --- N.Y.S.3d ----, 2024 WL 2102463, 2024 N.Y. Slip Op. 02621(4th Dept.,2024) the parties were married in 2013, and plaintiff commenced the action in 2021. In 2019, during the course of the marriage, defendant received an inheritance from her grandfather, and the following year the parties purchased their marital residence for $160,000. Defendant used $125,000 of her inheritance to fund that purchase, with the balance covered by a mortgage. In order to secure the mortgage, plaintiff needed to prove to the bank that he had sufficient funds, so defendant provided him with a “gift letter” stating that she was giving him $125,000 “as an outright gift and not a loan in any form” and that the money was being given to him “for the purchase of [the marital residence].” The Fourth Department held that to the extent that plaintiff contends that Supreme Court erred in awarding defendant a separate credit of $125,000 for inherited funds she used to purchase the marital residence, he failed to preserve that contention for review. It rejected Plaintiff’s argument that the court erred in determining that he should be solely responsible for the 27-year mortgage on the marital residence, less defendant’s $20,000 share of the balance due. It rejected the Plaintiff’s assertion that the determination is akin to an award of maintenance and that its duration is thus subject to the constraints of Domestic Relations Law § 236 (B) (6) (f) (1). While there are cases that have deemed mortgage payments a “form” of maintenance this was not such a case. Here, the court ordered plaintiff to pay both maintenance and the mortgage balance, less defendant’s $20,000 share. It noted that distributive awards and maintenance awards serve distinct purposes. “A distributive award is intended to reflect the equitable division of the marital assets between the parties, while maintenance is merely a payment awarded in the discretion of the court to a needy spouse ... In view of these distinct purposes, [courts have] previously indicated that the treatment of a distributive award as maintenance is improper. In its view, the determination to divide the mortgage balance equitably between the parties was intended as a distribution of marital debt, not a form of maintenance. The judgment of divorce required plaintiff to pay his portion of the mortgage balance within 60 days of entry of the judgment. Thus, contrary to plaintiff’s contention, the requirement that he pay a portion of a mortgage was not an award spanning 27 years. The Appellate Division also held, inter alia, that the court erred in failing to direct defendant to take measures to remove plaintiff’s name from the mortgage upon his payment of his share of the mortgage balance. Defendant was receiving the home and was also responsible for a portion of the mortgage payments. Once plaintiff made his payment, assuming, arguendo, that he made the payment as the judgment directed, he should have been relieved of any further obligation to the bank holding the mortgage.
Although the amended order included the statement that it was entered on the father’s default, the court’s bench decision specified that it was granting the petition based on the evidence adduced during the hearing, during which the father was represented by counsel. Where there is a discrepancy between the order and the decision, the decision controls
In Matter Miller v Boyden --- N.Y.S.3d ----, 2024 WL 2103457, 2024 N.Y. Slip Op. 02648 (4th Dept, 2024) in an amended order granted after a hearing, Family Court granted the mother’s petition in part and, inter alia, suspended the father’s visitation with the child for the remainder of his time in prison. The Appellate Division agreed with the father that the amended order was not entered upon his default, and he was therefore not precluded from appealing from the amended order. Although the amended order included the statement that it was entered on the father’s default, the court’s bench decision clearly specified that it was granting the mother’s modification petition based on the evidence adduced during the hearing, during which the father was represented by counsel. It held that where, as here, there is a discrepancy between the order and the decision, the decision controls, and it concluded that the amended order was not entered on the father’s default to the extent that it granted in part the mother’s petition. It also agreed with the father that the court failed to make any factual findings whatsoever to support the determination to suspend the father’s visitation with the child. It is well established that the court is obligated ‘to set forth those facts essential to its decision (see CPLR 4213 [b]; Family Ct Act § 165 [a]). Here, the court completely failed to follow that well-established rule when it failed to issue any factual findings to support its determination either with respect to whether there had been a change in circumstances, or the relevant factors that it considered in making a best interests of the child determination. It reversed the amended order and remit the matter to Family Court to make a determination on the petition.
May 8, 2024
Appellate Divison, First Department
Where the Plaintiff was the less monied spouse, an award of interim attorneys’ fees would permit her to continue the litigation. There is no requirement that she spend down a substantial portion of her assets to qualify for an award of attorneys’ fees.
In Wolinsky v Berkowitz, --- N.Y.S.3d ----, 2024 WL 1915168 (Mem), 2024 N.Y. Slip Op. 02389 (1st Dept.,2024) the Appellate Division affirmed that part of an order that granted the plaintiff wife’s cross-motion for pendente lite relief to the extent of awarding her $10,000 per month in temporary child support, $150,000 in interim attorneys’ fees, and $10,000 in interim expert fees. It held that in general, an aggrieved party’s remedy for any perceived inequities in a pendente lite award is a speedy trial. Contrary to the defendant’s contention, the pendente lite order did not result in an impermissible double shelter allowance insofar as the order neither denied his request for the plaintiff to contribute to the carrying charges nor ordered him to pay 100% of the charges for the months during which the parties resided in the apartment post-commencement in addition to pendente lite child support. That the parties lived together between October 2022 and March 2023 did not bar an award of child support where there was evidence that the award is necessary to maintain the reasonable needs of the children during litigation. The court providently exercised its discretion in awarding interim attorneys’ fees to plaintiff, considering the circumstances of the case and the parties’ respective financial positions. Plaintiff was the less-monied spouse, and the award of interim attorneys’ fees would permit her to continue the litigation. There is no requirement that she spend down a substantial portion of her assets to qualify for an award of attorneys’ fees. It vacated so much of the order as permitted plaintiff to incur up to $2,000 of expenses on defendant’s credit card per month, retroactive to the date of filing of the cross-motion, for the household goods and ancillary expenses for the children, and award defendant credit for charges made. The household goods and ancillary expenses were already included in the temporary child support award, which was also retroactive to the date of filing, and an award for additional expenses is therefore not necessary.
Plaintiff wife’s motion for temporary exclusive use and occupancy of the marital residence under DRL § 234 was properly granted where there was an unquestioned history of protective orders issued for the wife’s and children’s benefit.
In Morris-Perry v Morris-Perry --- N.Y.S.3d ----, 2024 WL 1915189 (Mem), 2024 N.Y. Slip Op. 02372 (1st Dept., 2024) the Appellate Division affirmed an order which
granted plaintiff wife’s motion for temporary exclusive use and occupancy of the marital residence pursuant to Domestic Relations Law § 234. Under the circumstances presented, it perceived no reason to disturb Supreme Court’s discretionary award. There was an unquestioned history of protective orders issued for the wife’s and children’s benefit as against defendant husband, most recently emanating from the criminal court following the husband’s arrest at the home. Personal safety is implicated if supported by orders of protection or evidence of police involvement. Moreover, the resulting level of domestic strife further underpins the court’s order to ensure the personal safety of the parties.
Appellate Division, Second Department
Where the plaintiff’s affidavit of service revealed that the defendant was served via email, rather than by personal delivery, absent a court order authorizing service by email, the service was ineffective
In Rae v. Marciano, --- N.Y.S.3d ----, 2024 WL 1895957, 2024 N.Y. Slip Op. 02337 (2d Dept.,2024) the plaintiff commenced an action for a divorce and served the defendant with the summons and complaint via email. The defendant rejected the papers. The plaintiff then made an oral application for the Supreme Court to authorize service by email nunc pro tunc, claiming, without proof, that the defendant had previously agreed to it. The plaintiff also sought to consolidate this action with an action entitled Rae v. Marciano et al., pending in the same court. The court denied the application and dismissed the action for lack of personal jurisdiction due to improper service upon the defendant. The Appellate Division affirmed. It held that Supreme Court properly denied the plaintiff’s application based on improper service. Domestic Relations Law § 232 permits substituted service pursuant to CPLR 308 by court order upon a showing that personal delivery of the summons and complaint upon the defendant could not be effected despite efforts made with due diligence. A court lacks personal jurisdiction over a defendant who is not properly served with process. Here, the plaintiff’s affidavit of service revealed that the defendant was served via email, rather than by personal delivery. Contrary to the plaintiff’s contention, she failed to adequately demonstrate that the defendant previously consented to such service. Thus, absent a court order authorizing service by email, the service was ineffective (see Domestic Relations Law § 232[a]).
Family Court properly awarded the mother summary judgment on her petition for sole custody. A hearing was not required where it was undisputed that the terms of the father’s probation prohibited him from having any contact with the children.
In Palumbo v Palumbo, --- N.Y.S.3d ----, 2024 WL 1895962 (2d Dept.,2024) the Appellate Division affirmed an order of the Family Court which awarded the mother summary judgment on her petition for sole custody. It held that a hearing was not required under the particular circumstances of this case. The mother demonstrated, prima facie, that it was in the best interests of the children to award her sole legal and physical custody. It was undisputed that the terms of the father’s probation prohibited him from having any contact with the children as a result of his conviction of sexual abuse in the second degree of the children’s half-sister. The Family Court also conducted the mandatory review of decisions addressing custody, reports of the statewide registry of orders of protection, and reports of the sex offender registry (see Family Ct Act § 651[e][3]), which revealed that the father was “a level 2 sex offender on probation stemming from a January 14, 2021 conviction. In opposition, the father failed to raise a triable issue of fact. The father’s unsubstantiated and conclusory allegations were insufficient to defeat a motion for summary judgment.
The finding of permanent neglect was not undermined by the evidence that petitioner took steps to arrange for the discharge of the children to the father which never materialized due to the father’s newly disclosed and unaddressed auditory hallucinations that were telling him to sexually abuse the children
In Matter of Tori-Lynn L. --- N.Y.S.3d ----, 2024 WL 1952044, 2024 N.Y. Slip Op. 02440 (4th Dept., 2024) the Appellate Division affirmed an order that, inter alia, adjudicated the subject children to be permanently neglected by the father and terminated the father’s parental rights. It held that while the father was correct that, prior to June 2021, petitioner had considered the father to be in compliance with the service plan such that the children were scheduled to return to the biological parents that month, petitioner’s excusable misperception of the father’s progress at that point was, through no fault of its own, as the court properly held, based on the father’s active concealment that he was experiencing auditory hallucinations—i.e., hearing voices—that had been instructing him to sexually abuse the children. The caseworker testified that petitioner received an additional CPS report in June 2021 informing it that the father had disclosed the auditory hallucinations to his psychiatrist. The caseworker specifically explained that, prior to the father’s disclosure, petitioner was unaware of the auditory hallucinations issue, and the father would not have been considered compliant with treatment if he was being dishonest with his mental health provider. Following the father’s disclosure, the caseworker asked him to enroll in a counseling program that treats people with sexualized behaviors. The father, however, did not enroll in that program prior to the end of the statutory period alleged in the petition. The record established both that petitioner’s perception of the progress that the father had made prior to June 2021 was due to his own non-disclosure of dangerous delusional thinking regarding the children, and that the father failed to sufficiently comply with the service plan for the remainder of the alleged one-year period. It concluded that, under the circumstances of this case, the finding of permanent neglect was not undermined by the evidence that petitioner took steps to arrange for the discharge of the children to the father which never materialized due to” the father’s newly disclosed and unaddressed auditory hallucinations that were telling him to sexually abuse the children (Matter of Wilfredo A.M., 56 A.D.3d 338, 338, 868 N.Y.S.2d 180 [1st Dept. 2008]). A different result was not warranted even if the court erred in admitting the full testimony of the psychiatrist on the ground that the father’s confidential communications remained subject to physician-client privilege. The psychiatrist, as a mental health professional, was required to report that he had reasonable cause to suspect that the children were maltreated based on the father’s disclosure that he was hearing voices instructing him to sexually abuse the children (see Social Services Law § 413 [1] [a]; see also § 412 [2] [a]; Family Ct Act § 1012 [f] [i]). The psychiatrist made such a report by immediately placing a telephone call to the caseworker (see Social Services Law § 415).
Family Court erred in addressing the merits of the petition without first resolving whether it had subject matter jurisdiction to do so, inasmuch as this threshold issue implicates a court’s competence to entertain an action
In Matter of. Adams v. John, --- N.Y.S.3d ----, 2024 WL 1951532, 2024 N.Y. Slip Op. 02404 (4th Dept., 2024) a custody case, the Appellate Division held court erred in addressing the merits of the petition without first resolving whether it had subject matter jurisdiction to do so, inasmuch as this threshold issue implicates a court’s “competence to entertain an action” Further, Domestic Relations Law § 75-f expressly provides that where, as here, a party in a child custody proceeding raises an issue regarding the existence of jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, that issue “must be given priority on the calendar and handled expeditiously” (Domestic Relations Law § 75-f). The court here not only failed to prioritize that threshold issue, it never expressly resolved the issue before rendering a final determination on the merits. Nonetheless it rejected the mother’s contention that the court lacked subject matter jurisdiction to consider the petition. The mother’s jurisdictional argument relied on Domestic Relations Law § 76, which pertains to an initial custody determination. Here, however, at the time of the filing of the instant petition, custody of the subject child was governed by an order of Ontario County Family Court. The New York court never lost or relinquished its exclusive, continuing jurisdiction under Domestic Relations Law § 76-a. It agreed with the mother, however, that the court’s determination to award petitioners joint custody of the child along with herself and the father lacked a sound and substantial basis in the record inasmuch as petitioners failed to establish the existence of extraordinary circumstances.
The court did not err in finding defendant in contempt without conducting a hearing. A hearing is required only if the papers in opposition raise a factual dispute as to the elements of civil contempt, or the existence of a defense
In McCurty v Roberts --- N.Y.S.3d ----, 2024 WL 1952074, 2024 N.Y. Slip Op. 02450 (4th Dept., 2024) the Appellate Division affirmed an order which held the defendant in contempt for violating the maintenance provisions of the parties’ judgment of divorce. It held that the court did not err in finding defendant in contempt without conducting a hearing. A hearing is required only if the papers in opposition raise a factual dispute as to the elements of civil contempt, or the existence of a defense (El-Dehdan v. El-Dehdan, 114 A.D.3d 4, 17, 978 N.Y.S.2d 239 [2d Dept. 2013], affd 26 N.Y.3d 19, 19 N.Y.S.3d 475, 41 N.E.3d 340 [2015]). Here, defendant failed to raise an issue of fact on his defense, i.e., his inability to pay the maintenance obligation. Instead, defendant simply stated in his affidavit that permitting the award of full maintenance for the three-year period would be “unaffordable.” “Such vague and conclusory allegations of ... inability to pay or perform are not acceptable.
Courts should not second-guess the economic decisions made during the course of the marriage, but rather should equitably distribute the assets and obligations remaining once the relationship is at an end
In Jonas v Jonas, 225 A.D.3d 1229, 207 N.Y.S.3d 784, 2024 N.Y. Slip Op. 01460 (4th Dept.,2024) plaintiff wife appealed from a judgment that, inter alia, equitably distributed marital property. The Appellate Division held that the wife’s contention that Supreme Court erred in failing to determine defendant husband’s child support and maintenance obligations was not properly before it inasmuch as she consented to the referral of those issues to Family Court, and no appeal lies from that part of an order entered on consent. The court did not abuse its discretion in its equitable distribution of the marital property. Although the wife contended that the equitable distribution award ignored the husband’s dissipation of marital assets, the wife’s claims of dissipation were conclusory and relied on the credibility of the parties, and in such circumstances, this Court shall afford the trial court great deference. The evidence presented at trial established that the parties mutually liquidated marital assets, and accumulated significant debt, in an unsuccessful attempt to save their family business. Courts should not second-guess the economic decisions made during the course of the marriage, but rather should equitably distribute the assets and obligations remaining once the relationship is at an end” (Mahoney-Buntzman v. Buntzman, 12 N.Y.3d 415, 421 [2009]).
Supreme Court
CPLR § 321(a) prohibits a party who has appeared with counsel from acting as a self-represented litigant without court approval. If a party appears by attorney such party may not act in person in the action except by consent of the court.
In P.M., v. J.A., --- N.Y.S.3d ----, 2024 WL 1903202, 2024 N.Y. Slip Op. 24131 (Sup. Ct, 2024) the Supreme Court observed that CPLR § 321(a) prohibits a party who has appeared with counsel from acting as a self-represented litigant without court approval. If a party appears by attorney such party may not act in person in the action except by consent of the court. CPLR § 321(d) permits limited scope appearance: 1. An attorney may appear on behalf of a party in a civil action or proceeding for limited purposes. Whenever an attorney appears for limited purposes, a notice of limited scope appearance shall be filed in addition to any self-represented appearance that the party may have already filed with the court. The notice of limited scope appearance shall be signed by the attorney entering the limited scope appearance and shall define the purposes for which the attorney is appearing. Upon such filing, and unless otherwise directed by the court, the attorney shall be entitled to appear for the defined purposes. 2. Unless otherwise directed by the court upon a finding of extraordinary circumstances and for good cause shown, upon completion of the purposes for which the attorney has filed a limited scope appearance, the attorney shall file a notice of completion of limited scope appearance which shall constitute the attorney’s withdrawal from the action or proceeding. Delving into the meaning of the use of “preliminary to” in 22 NYCRR § 1400, one author noted, “We believe that the words ‘preliminary to’ are intended to make the rule applicable to any consultation regarding such claim, action or proceeding which results in the commencement of such claim, action or proceeding which results in the commencement of such a claim, action or proceeding within a reasonable time after the consultation.” (see Law & The Family NY Forms § 4:1 [2d])
May 1, 2024
Appellate Division, Second Department
Under the circumstances of this custody case, the denial of the father’s request for an adjournment effectively deprived the father of his fundamental right to counsel (see Family Ct Act § 262[a][iii]), which also constituted a denial of due process and required reversal, without regard to the merits of the father’s position
In Mater of Olivos v Olivos, --- N.Y.S.3d ----, 2024 WL 1749693, 2024 N.Y. Slip Op. 02199 (2d Dept.,2024) a custody proceeding the Appellate Division held that Family Court should not have dismissed the father’s petition without conducting a hearing to determine whether the court had jurisdiction pursuant to Domestic Relations Law § 76 and affording the father an opportunity to present evidence as to that issue. The mother had removed the children to Peru after the commencement of the proceeding despite an order directing her not to do so. It was undisputed that the children lived in the United States for approximately two years prior to the commencement of this child custody proceeding, and both parties provided their New York State residence addresses to the court. There was a dispute as to whether a Peruvian court already made an initial custody determination. Thus, the Family Court should have held a hearing to determine whether New York State was the children’s home state on the date of the commencement of this proceeding and whether an initial custody determination has already been made (see Domestic Relations Law § 76–b). Moreover, under the particular circumstances of this case, the Family Court improvidently exercised its discretion by, in effect, denying the father’s request for an adjournment. The denial of the father’s request effectively deprived the father of his fundamental right to counsel (see Family Ct Act § 262[a][iii]), which also constituted a denial of due process and required reversal, without regard to the merits of the father’s position. It reversed and remitted for a determination of those issues.
The focus of the inquiry with respect to derivative neglect is whether the evidence of abuse or neglect of another child or children demonstrates such an impaired level of parental judgment to create a substantial risk of harm for the other child or children in the parent’s care
In Matter of James L. --- N.Y.S.3d ----, 2024 WL 1749662, 2024 N.Y. Slip Op. 02196 (2d Dept.,2024) evidence was presented at a fact-finding hearing that while the children (14–year–old Kevin and Kevin’s then 5–year–old brother, James) were present in the father’s apartment, Kevin observed the father punching another person in the face, purportedly over rent money. DSS also presented evidence that Kevin wore inadequate clothing for the cold weather and had gone several days in January 2020 without heat or hot water in his home. The Appellate Division affirmed a finding of Neglect with regard to the son Kevin but reversed the finding of derivative neglect with regard to son James. A finding of neglect is proper where a preponderance of the evidence establishes that the child’s physical, mental, or emotional condition was impaired or was in danger of becoming impaired by the parent’s commission of an act, or acts, of domestic violence in the child’s presence”. However, “not every child exposed to domestic violence is at risk of impairment”, and “exposing a child to domestic violence is not presumptively neglectful” (Nicholson v. Scoppetta, 3 N.Y.3d at 375). Here, the preponderance of the evidence did not establish that the father neglected James by engaging in acts of domestic violence. DSS failed to establish at the fact-finding hearing that the altercation that occurred in the father’s apartment constituted domestic violence (cf. Family Ct Act § 812[1]). DSS did not present evidence that James had observed the incident or that it caused impairment, or an imminent danger of impairment, to his physical, mental, or emotional well-being. While proof of the abuse or neglect of one child is admissible evidence on the issue of the abuse or neglect of any other child of the parent, a finding of abuse or neglect as to one child does not mandate a finding of derivative abuse or neglect as to the other children” (Matter of Katherine L. [Adrian L.], 209 A.D.3d 737, 739, 175 N.Y.S.3d 570, citing Family Ct Act § 1046[a][i]). The focus of the inquiry with respect to derivative findings is whether the evidence of abuse or neglect of another child or children demonstrates such an impaired level of parental judgment so as to create a substantial risk of harm for the other child or children in the parent’s care. DSS failed to demonstrate that the father had such an impaired level of parental judgment so as to create a substantial risk of harm to James. Notably, there was an approximately nine-year age difference between the children, and they had different living situations and different relationships with the father. Thus, under all of the circumstances of this case, a preponderance of the evidence did not support a finding that the father derivatively neglected James.
Motion to relieve AFC properly denied where plaintiff failed to submit evidence that AFC was not zealously advocating for the two children she was representing or that she could not advocate for each child’s position without prejudicing the rights of the other child
In Hoberman v Hoberman, --- N.Y.S.3d ----, 2024 WL 1749575, 2024 N.Y. Slip Op. 02178 (2d Dept.,2024) the parties were divorced in 2019. They had three children together. In a stipulation of settlement, which was incorporated but not merged into the parties’ judgment of divorce, the parties agreed to raise the children in the Jewish religion, keep a kosher home, and provide the children with kosher food outside the home. The oldest and youngest children were represented by Susan G. Mintz during the matrimonial action and post-judgment proceedings. The plaintiff moved to hold the defendant in contempt for failing to keep a kosher home. The plaintiff then moved to discharge Mintz as the attorney for the parties’ youngest child and to appoint a new attorney to represent that child. The plaintiff argued that Mintz had a conflict of interest in representing the two children, who had differing views on keeping kosher. The Supreme Court denied the plaintiff’s motion. The Appellate Division held that the Supreme Court did not improvidently exercise its discretion in denying her motion. The plaintiff failed to submit evidence that Mintz was not zealously advocating for the two children she was representing or that she could not advocate for each child’s position without prejudicing the rights of the other child (see 22 NYCRR 7.2[d]; Rules of Prof Conduct [22 NYCRR 1200.0] rule 1.7[a][1]).
Where an order of protection expired by its own terms, and was not predicated on an adverse finding against the appealing party, an appeal from an order denying a motion to vacate the order of protection must be dismissed as academic.
In Wiley v Wiley --- N.Y.S.3d ----, 2024 WL 1749719, 2024 N.Y. Slip Op. 02202 (2d Dept.,2024) the Appellate Division held that where an order of protection has expired by its own terms, and was not predicated on an adverse finding against the appealing party, an appeal from an order denying a motion to vacate the order of protection must be dismissed as academic. Here, the order of protection dated January 26, 2022, was issued based upon the appellant’s default, not upon a finding that he committed a family offense, and it had since expired by its own terms. Accordingly, the appeal from the order dated May 10, 2022, denying the appellant’s motion to vacate that order of protection had to be dismissed as academic.
Where the Support Magistrate erroneously indicated that the mother would bear the burden of proving the father’s income during a hearing it could not be said that the mother’s consent to the order of support calculated by the Support Magistrate was given knowingly.
In Matter of Barrows v Ryan, --- N.Y.S.3d ----, 2024 WL 1749607, 2024 N.Y. Slip Op. 02186 (2d Dept.,2024) the parties, who were not married, had one child together. The mother commenced a proceeding against the father for child support. During an appearance before the Family Court, the father verbally represented his income to the Support Magistrate, but the mother stated that she believed that the father’s income was higher than what he represented. The Support Magistrate accepted the father’s verbal representation of his income to calculate the father’s support obligation. The parties agreed to the calculated amount of support and the Support Magistrate issued an order which, inter alia, directed the father to pay basic child support of $492 per month and 35% of certain add-on expenses. The Court denied the mother’s objections, noting that the mother consented to the child support calculation performed by the Support Magistrate. The Appellate Division held that under the particular facts of this case, it cannot be said that the mother’s consent to the order of support was given knowingly. The mother contended that she did not knowingly consent to the order of support. Generally, when an order of support is entered on the parties’ consent, that consent must be given knowingly and voluntarily. Here, after the mother indicated to the Support Magistrate that she believed that the father’s income was higher than he verbally represented, the Support Magistrate erroneously indicated that the mother would bear the burden of proving the father’s income during a hearing. The Support Magistrate’s brief allocution did not correct this error (see Family Ct Act §§ 424–a, 413[1][k]). Thus, the Family Court should have granted the mother’s objections. It reversed the order and remitted the matter to the Family Court, for a hearing on the mother’s petition.
The award of counsel fees under Family Ct Act § 438 should be based upon the totality of the circumstances, including the equities and circumstances of each particular case
In Matter of Marcus v Marcus, --- N.Y.S.3d ----, 2024 WL 1749630, 2024 N.Y. Slip Op. 02197 (2d Dept.,2024) the Appellate Division held that a court may allow counsel fees at any stage of a proceeding under Family Court Act article 4 (Family Ct Act § 438). The factors to be considered in computing an appropriate award include the parties’ ability to pay, the merits of the parties’ positions, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of counsel’s performance and the fees under the circumstances. Ultimately, the award should be based on the totality of the circumstances, including the equities and circumstances of each particular case.
For a juvenile to qualify for special immigrant juvenile status, a court must find that reunification of the juvenile with one or both of the juvenile’s parents is not viable due to parental abuse, neglect, abandonment, or a similar basis, and that it would not be in the juvenile’s best interest to be returned to his or her native country or country of last habitual residence
In Matter of Eddy A.P.C. --- N.Y.S.3d ----, 2024 WL 1749625, 2024 N.Y. Slip Op. 02187 (2d Dept.,2024) the Appellate Division reversed an order which, after a hearing, denied the subject children’s motion for the issuance of an order, inter alia, making specific findings to enable them to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J). In March 2023, the subject children, Eddy A.P.C. and Cleidy F.P.C., who arrived in the United States from Guatemala in 2019, filed separate petitions pursuant to Family Court Act article 6 seeking to have their father appointed as their guardian. Thereafter, the children moved for the issuance of an order declaring that they were dependent on the Family Court and making specific findings that they are unmarried and under 21 years of age, that reunification with their mother was not viable due to parental neglect, and that it would not be in their best interests to be returned to Guatemala, their previous country of nationality and last habitual residence, to enable them to petition the United States Citizenship and Immigration Services for special immigrant juvenile status (hereinafter SIJS) pursuant to 8 USC § 1101(a)(27)(J). The court appointed the father as guardian of the children. However, after a hearing, it found neglect on the part of the mother, but denied the children’s motion on the ground that they failed to establish that reunification with their mother was not viable. The Appellate Division observed that a pursuant to 8 USC § 1101(a)(27)(J) and 8 CFR 204.11, a ‘special immigrant’ is a resident alien who is, inter alia, under 21 years of age, unmarried, and dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. For a juvenile to qualify for special immigrant juvenile status, a court must find that reunification of the juvenile with one or both of the juvenile’s parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under State law, and that it would not be in the juvenile’s best interest to be returned to his or her native country or country of last habitual residence. Based upon its independent review, the record supported a finding that reunification of the children with their mother was not viable due to the mother’s abandonment of the children; that the mother provided little to no emotional support to the children while in Guatemala before the mother abandoned the children entirely by moving to the United States and after the children arrived in the United States; the mother continued to neglect the children; the mother failed to protect the children from gang violence in Guatemala and did not provide emotional support with regard to the threat of gang violence; and that it would not be in the best interests of the children to return to Guatemala, their previous country of nationality and country of last habitual residence
In determining whether a child born after the underlying acts of abuse or neglect should be adjudicated derivatively neglected, the determinative factor is whether, taking into account the nature of the conduct and any other pertinent considerations, the conduct which formed the basis for a finding of abuse or neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists
In Matter of Kiarah V.R., --- N.Y.S.3d ----, 225 A.D.3d 774, 2024 WL 1184168, 2024 N.Y. Slip Op. 01552 (2d Dept.,2024) the children were born in 2020 and 2021. The Administration for Children’s Services ( ACS) commenced proceedings alleging, among other things, that the mother derivatively neglected the children based on findings of neglect against the mother in 2007 and 2009 as to the children’s older siblings. ACS moved for summary judgment. The Family Court granted the motion. The Appellate Division reversed. It held that although there is no express provision for a summary judgment procedure in Family Court Act article 10 proceedings, summary judgment pursuant to CPLR 3212 may be granted in such a proceeding when it clearly has been ascertained that there is no triable issue of fact. While proof of the abuse or neglect of one child is admissible evidence on the issue of the abuse or neglect of any other child of the parent (see Family Ct Act § 1046[b]), “there is no per se rule that a finding of neglect of one sibling requires a finding of derivative neglect with respect to the other siblings. The focus of the inquiry is whether the evidence of abuse or neglect of one child indicates a fundamental defect in the parent’s understanding of the duties of parenthood”. In determining whether a child born after the underlying acts of abuse or neglect should be adjudicated derivatively neglected, the determinative factor is whether, taking into account the nature of the conduct and any other pertinent considerations, the conduct which formed the basis for a finding of abuse or neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists. Here, ACS failed to establish, prima facie, that the mother derivatively neglected the children based upon her alleged failure to address certain mental health issues underlying the 2007 and 2009 findings of neglect. In support of its motion, ACS relied solely on the prior neglect findings and failed to include an affidavit from anyone with personal knowledge of the events alleged in the neglect petitions or any other evidentiary material (see CPLR 3212[b]). The prior neglect findings were not so proximate in time to establish, as a matter of law, that the conditions that formed the basis therefore continued to exist.
Appellate Division, Third Department
Where the non-custodial parent’s income is less than or equal to the poverty income guidelines amount for a single person as reported by the federal department of Health and Human Services, unpaid child support arrears in excess of [$500] shall not accrue.
In Matter of Naeem Akhtar v Naeem, --- N.Y.S.3d ----, 2024 WL 1774239, 2024 N.Y. Slip Op. 02240(3d Dept.,2024) the father challenged Family Court’s refusal to cancel the child support arrears in excess of $500, which accumulated from September 2017 to January 2019, corresponding with the 17–month period during which he claimed he lacked an ability to pay because of little or no income. The Appellate Division observed that the statutory scheme of child support enforcement carves out an exception to the general prohibition barring the adjustment or vacatur of child support arrears where the noncustodial parent demonstrates that he or she experienced a period of time during which his or her income fell below the poverty income guidelines. Pursuant to Family Ct Act § 413(1)(g), “[w]here the non-custodial parent’s income is less than or equal to the poverty income guidelines amount for a single person as reported by the federal department of Health and human services, unpaid child support arrears in excess of [$500] shall not accrue.” The poverty level for a one-person household in 2017 was $12,060 and in 2018 was $12,140.Family Court may properly consider a noncustodial parent’s ability to work when determining whether his or her child support arrears are required to be capped at $500. It could not agree with Family Court’s finding that the father failed to present sufficient evidence of his inability to work during the relevant 17–month period when his income was well below the poverty guidelines. The record revealed that, commensurate with the loss of his employment in 2016, the father collected unemployment insurance benefits, which terminated in August 2017. He testified that he had no other income for the remaining months of 2017 because he was, at that time, undergoing regular medical treatment for kidney failure. In 2018, the father had only $6,887 in earned income from part-time retail work, and he testified that he was unable to find or perform other work. According to his testimony, during these 17 months, the father’s credit cards were involuntarily cancelled for nonpayment, he lacked sufficient funds even to launder his clothing, and he begged others to purchase groceries for him. The father’s testimony and evidence was uncontroverted as the mother did not cross-examine the father. It held that Family Court erred when it declined to recalculate the father’s arrearage because it relied upon the incorrect premise that the father had failed to file a sworn financial disclosure affidavit; because the submission of his SSI eligibility approval letter was missing multiple pages, and because he did not state the total amount of unemployment benefits he received. None of these omissions in the proof pertained to the father’s financial circumstances during the 17–month period corresponding with his claim of indigency. Thus, Family Court erred insofar as it considered these omissions in the record to be relevant in assessing whether the father’s income was below the level of poverty during the time period claimed by the father. The father met his burden and sufficiently supported his claim of indigency during the relevant 17–month period so as to afford him a viable claim under Family Ct Act § 413(1)(g). This was not a matter of arrears being forgiven in contravention of Family Ct Act § 451 but, rather, a circumstance of arrears between September 2017 and January 2019 never having accrued
Family Court also erred in denying him a credit for $977.58, representing the amount of overpayment of child support beyond the parties’ middle child having reached the age of 21, as well as the effective date for the reduced obligation relative to the one remaining child for whom the obligation continued. Family Court lacked the authority to raise issues, sua sponte, which the parties did not preserve through the filing of objections pursuant to Family Ct Act § 439(e) (see Matter of Porter v. D’Adamo, 113 A.D.3d 908, 910, 979 N.Y.S.2d 407 [3d Dept. 2014]; Matter of Hubbard v. Barber, 107 A.D.3d 1344, 1345, 968 N.Y.S.2d 245 [3d Dept. 2013]). The Order was reversed and remitted to the Family Court for further proceedings not inconsistent with this Court’s decision.
Appellate Division, Fourth Department
Where child’s attendance at school was not mandated by article 65 of the Education Law. the mother had no duty to supply the older child child with adequate education within the meaning of FCA § 1012 (f) (i) (A) and was not guilty of neglect.
In Matter of Justice H.M. --- N.Y.S.3d ----, 225 A.D.3d 1298, 2024 WL 1228530, 2024 N.Y. Slip Op. 01653(4th Dept.,2024) the Appellate Division, inter alia, reversed a finding that the mother committed educational neglect with respect to the older child. It was undisputed that the older child had not attained the age of six by December 1 of the year in which the educational neglect was alleged to have taken place, and thus his attendance at school was not mandated by article 65 of the Education Law. Inasmuch as Article 65 did not require the older child’s attendance at school, the mother had no duty to supply the older child with adequate education within the meaning of Family Court Act § 1012 (f) (i) (A).
In order to have substitute counsel appointed, a party must establish that good cause for release existed necessitating dismissal of assigned counsel.
In Bracken v Bracken, -- N.Y.S.3d ----, 225 A.D.3d 1241, 2024 WL 1130038, 2024 N.Y. Slip Op. 01468 (4th Dept, 2024) a custody proceeding, the Appellate Division held, inter alia, that the Family Court did not err in refusing to appoint new counsel for the mother after she released her assigned counsel after two days of the fact-finding hearing, which was held on three days over the course of four months. It is well settled that an indigent party’s right to court-appointed counsel under the Family Court Act is not absolute. In order to have substitute counsel appointed, a party must establish that good cause for release existed necessitating dismissal of assigned counsel. The mother did not demonstrate that good cause existed for substitution of assigned counsel. The record showed that there was just a disagreement between the mother and her counsel over trial strategy and the mother’s filing of pro se violation petitions.
April 24, 2024
An appellate court’s resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court, and operates to foreclose re-examination of the question absent a showing of subsequent evidence or change of law
In Mezinev v Tashybekova, --- N.Y.S.3d ----, 2024 WL 1723752 (1st Dept.,2024) Supreme Court affirmed a judgment that awarded primary physical custody to the defendant wife with reasonable visitation access to the plaintiff husband, directed the husband to pay continued child support for the parties’ unemancipated child of $1,708.86 per month until the child’s 21st birthday, directed the husband to pay to the wife as and for equitable distribution of marital property of $110,524.50, child support arrears in the amount of $56,013.93, plus any additional child support at $1,708.86 per month unpaid at entry of judgment, and $80,000 in additional counsel fees directly to defendant’s counsel. Regarding the equitable distribution and counsel fees, the Appellate Division noted that they were made in a previous order, which the husband unsuccessfully appealed to this Court, and it saw no reason to revisit them. An appellate court’s resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court, and operates to foreclose re-examination of the question absent a showing of subsequent evidence or change of law. Given its determinations in Velin M. v. Bermet T. (220 AD3d 521 [1st Dept 2023] ) and Mezinev v. Tashybekova, (209 AD3d 2024 WL 1645233 ) that Supreme Court lacked jurisdiction over the subject child’s half-sibling living in Bulgaria, and any impediments to plaintiff’s travel were not the province of Supreme Court, it perceived no reason to review plaintiff’s arguments on these issues, as well as the determination made as to the financial decisions.
By failing to object to the method used for reconstructing that testimony and failing to allege that the testimony was not properly reconstructed, the mother failed to preserve for review “any claim of appellate prejudice”
In Matter of Kirkland v Crawford,--- N.Y.S.3d ----, 225 A.D.3d 1127, 2024 WL 1129211, 2024 N.Y. Slip Op. 01386 (4th Dept, 2024) the mother appealed from an order of the Family Court which granted the father sole legal custody and primary physical custody of the subject child. The Appellate Division affirmed. It rejected the mother’s contention that summary reversal was required where 47 minutes of testimony could not be transcribed due to an audio recording malfunction. By failing to object to the method used for reconstructing that testimony and failing to allege that the testimony was not properly reconstructed, the mother failed to preserve for review “any claim of appellate prejudice” as a result thereof (Matter of China Fatimah S., 272 A.D.2d 138, 138, 708 N.Y.S.2d 857 [1st Dept. 2000]) and, in any event, summary reversal is not required where, as here, the record, including the minutes of [the] reconstruction hearing is adequate for meaningful appellate review.
The opposing spouse in a no-fault divorce action pursuant to Domestic Relations Law § 170(7) is not entitled to litigate the other spouse’s sworn statement that the relationship has broken down irretrievably for a period of at least six months.
In D’Ambra v. D’Ambra, --- N.Y.S.3d ----, 225 A.D.3d 662, 2024 WL 1081237, 2024 N.Y. Slip Op. 01291 (2d Dept., 2024) the plaintiff and the defendant were married on January 23, 2007. They thereafter purchased a condominium in Flushing, which served as the marital residence, and a rental property in Florida. The defendant’s adult son from a prior relationship began residing with them in 2011. During the marriage, the plaintiff paid all marital expenses and the defendant did not earn an income. In May 2014, the plaintiff commenced this action for a divorce. Before trial, the defendant failed to file a revised statement of net worth, and the Supreme Court, therefore, precluded her from offering testimony or other evidence about her income or expenses. Following a trial, the court issued a decision, inter alia, declining to award the defendant maintenance. With respect to the equitable distribution of property, the court found that the plaintiff was entitled to a credit of $150,000 due to a fraud perpetrated upon him by the defendant relating to a transfer of funds to one of her family members in China. Since the credit to the plaintiff was in excess of any amount otherwise owed to the defendant, the court concluded, among other things, that she was not entitled to an award of any assets or funds. The Appellate Division affirmed. It held that even assuming that the defendant did not consent to the ground for divorce, the Supreme Court did not lack subject matter jurisdiction to grant a judgment of divorce pursuant to Domestic Relations Law § 170(7). The issue of whether the plaintiff established that the parties’ marriage had irretrievably broken down for a period of at least six months ... concerns the merits of the divorce action, not the court’s competence to adjudicate it. Contrary to the defendant’s contention, “the opposing spouse in a no-fault divorce action pursuant to Domestic Relations Law § 170(7) is not entitled to litigate the other spouse’s sworn statement that the relationship has broken down irretrievably for a period of at least six months. The Appellate Division held that the Supreme Court providently exercised its discretion in declining to award her maintenance, considering, inter alia, her failure to file a revised statement of net worth and the court’s resulting inability to sufficiently evaluate her finances. It also held that the defendant has failed to establish a basis to disturb the Supreme Court’s equitable distribution determination. Contrary to her contention, the court providently exercised its discretion with regard to the equitable distribution of the marital residence in Flushing and the rental property in Florida. Moreover, the court’s determination as to the purported fraud perpetrated by the defendant, concluding, in effect, that she had wastefully dissipated marital assets, entitling the plaintiff to a credit against the defendant’s equitable portion of these marital assets, was also a provident exercise of its discretion, hinging on the court’s credibility assessments of the parties.
When a party in a divorce action moves for summary judgment to dismiss based on the alleged waiver of equitable distribution, maintenance, and counsel fees in a prenuptial agreement, the moving party must, in addition to eliminating all triable issues of fact make a prima facie showing that the terms of the agreement were not unconscionable and that the agreement was not the product of fraud, duress, overreaching or other inequitable conduct
In Almountaser v. Abdo,--- N.Y.S.3d ----, 225 A.D.3d 651, 2024 WL 1081055, 2024 N.Y. Slip Op. 01285 (2d Dept.,2024) the plaintiff and the defendant were married in Yemen in July 2005. In January 2020, the plaintiff commenced this action for a divorce. During the pendency of this litigation, the defendant submitted a copy of the parties’ marriage license and a certified English translation of it that he obtained from the Yemeni government. The plaintiff, who possessed the original marriage license, also submitted a certified English translation thereof. Both versions contained what is known as a Mahr agreement, which the parties assert is an agreement between parties to a marriage, in accordance with Islamic law, that the husband will pay to the wife a specified sum in the event of a divorce. The defendant contended that the Mahr agreement resolved all issues concerning equitable distribution, maintenance, and counsel fees. The plaintiff contended, inter alia, that the Mahr agreement does not resolve those financial issues because the agreement contained no waiver of equitable distribution, maintenance, or counsel fees. In addition, the respective translations of the marriage license submitted by the parties differed as to the date of the marriage, the names of the witnesses to the marriage, the amount due pursuant to the Mahr agreement, and the specific language surrounding the Mahr agreement. The defendant moved, for summary judgment dismissing so much of the complaint as sought awards of equitable distribution, maintenance, and counsel fees on the ground that the parties' Mahr agreement resolved all issues concerning equitable distribution, maintenance, and counsel fees. Supreme Court denied the motion. The Appellate Division affirmed. It held that a party seeking summary judgment bears the initial burden of demonstrating its prima facie entitlement to the requested relief. When a party in a divorce action moves for summary judgment to dismiss based on the alleged waiver of equitable distribution, maintenance, and counsel fees in a prenuptial agreement, the moving party must, in addition to eliminating all triable issues of fact make a prima facie showing that the terms of the agreement were not unconscionable and that the agreement was not the product of fraud, duress, overreaching or other inequitable conduct. Here the defendant failed to eliminate triable issues of fact as to which English translation of the marriage license controlled and as to whether the Mahr agreement was unconscionable. Further, neither translation of the Mahr agreement contained an explicit waiver of equitable distribution, maintenance, or counsel fees.
Counsel’s failure to seek an adjournment of a conference did not constitute ineffective assistance of counsel, as counsel’s failure to make a motion or argument that had little or no chance of success
In Ramirez v Colon, --- N.Y.S.3d ----, 225 A.D.3d 704, 2024 WL 1081199, 2024 N.Y. Slip Op. 01312 (2d Dept.,2024) the Appellate Division dismissed an appeal based from an order that awarded the father custody based upon the mother's default. It held that the mother’s contention that she was deprived of the effective assistance of counsel was without merit. The statutory right to counsel under Family Court Act § 262 affords protections equivalent to the constitutional standard of effective assistance of counsel afforded to defendants in criminal proceedings. The mother’s counsel’s failure to seek an adjournment of a conference did not constitute ineffective assistance of counsel, as counsel’s failure to make a motion or argument that had little or no chance of success did not deprive the mother of the effective assistance of counsel especially where, as here, the mother was aware of the conference and chose not to attend.
Although the Family Court failed to strictly follow Family Court Act § 1033–b, reversal was not warranted where there was no indication that the father was not fully aware of the contents of the petition at the time of his first appearance
In Matter of Timothy K., --- N.Y.S.3d ----, 225 A.D.3d 700, 2024 WL 1081069, 2024 N.Y. Slip Op. 01308 (2d Dept.,2024) following a fact-finding hearing, the Family Court found that the father neglected the children by repeatedly misusing heroin. The Appellate Division affirmed. It observed that Family Ct Act § 1033–b(1)(b) requires the court, at an initial appearance based on a petition filed pursuant to Family Ct Act article 10, to, among other things, advise respondent of the allegations in the petition” (Matter of Shawndalaya II., 31 A.D.3d 823, 825, 818 N.Y.S.2d 330). Although the Family Court failed to strictly follow the procedural requirements set forth in Family Court Act § 1033–b, reversal was not warranted under the particular circumstances of this case. There was no indication that the father, who was aided by counsel, was not fully aware of the contents of the petition at the time of his first appearance, as evinced by the father’s representation that he had contacted a number of programs recommended by the petitioner and the representation by the father’s attorney that he and the father would continue to discuss a resolution of the petition.
The Appellate Division pointed out that pursuant to Family Court Act § 1046(a)(iii), ‘proof that a person repeatedly misuses a drug or drugs or alcoholic beverages, to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of ... such person is a neglected child except that such drug or alcoholic beverage misuse shall not be prima facie evidence of neglect when such person is voluntarily and regularly participating in a recognized rehabilitative program. Family Court’s finding of neglect was supported by a preponderance of the evidence. The evidence of the father’s repeated misuse of heroin, as adduced at the fact-finding hearing, established a prima facie case of neglect pursuant to Family Court Act § 1046(a)(iii). Therefore, neither actual impairment of the children’s physical, mental, or emotional condition, nor a specific risk of impairment, needed to be established (see (Matter of Mia S. [Michelle C.], 212 A.D.3d 17, 19, 179 N.Y.S.3d 732). The father failed to rebut this showing. Accordingly, the Family Court properly found that the father neglected the children.
April 17, 2024
Appellate Division, Second Department
In a Family Offense proceeding impairment or imminent danger of physical impairment should also be inferred from the subject children’s proximity to violence directed against a family member, even absent evidence that they were aware of or emotionally impacted by the violence.
In Matter of Xierra N. v Lewis N.--- N.Y.S.3d ----, 2024 WL 1545461, 2024 N.Y. Slip Op. 01927 (2d Dept.,2024)the Family Court found that the father neglected the child by perpetrating acts of domestic violence in close proximity to the child. The Appellate Division affirmed. It held, among other things, that a party seeking to establish neglect must show, by a preponderance of the evidence, first, that a child’s physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship” (Nicholson v. Scoppetta, 3 N.Y.3d 357, 368). A finding of neglect is proper where a preponderance of the evidence establishes that the child’s physical, mental, or emotional condition was impaired or was in danger of becoming impaired by the parent’s commission of an act, or acts, of domestic violence in the child’s presence. Even a single act of domestic violence, either in the presence of a child or within the hearing of a child, may be sufficient for a neglect finding. Furthermore, impairment or imminent danger of physical impairment should also be inferred from the subject children’s proximity to violence directed against a family member, even absent evidence that they were aware of or emotionally impacted by the violence.
To establish a violation of a Family Court order the petitioner must show that the respondent’s acts or omissions “significantly defeated, impaired, impeded, or prejudiced his [or her] rights.” The violation of a court order, standing alone, is insufficient to punish a party for civil contempt. A violation petition is subject to the requirements of CPLR 3013
In Koska v Koska,--- N.Y.S.3d ----, 2024 WL 1545661, 2024 N.Y. Slip Op. 01922(2d Dept.,2024) the father appealed from an order of the Family Court, which, without a hearing dismissed the father’s petition alleging that the mother violated an order of the court. On August 17, 2020, the Family Court issued an order that directed “that the [younger child] should not be left alone with [the older child] when in the care or custody of either party.” On June 25, 2021, the father filed a petition alleging that the mother violated the August 2020 order. In support of his petition, the father asserted that he had obtained a recording of the younger child stating “that he was alone with [the older child].” That same day, the father provided certain additional details relating to his petition. The father subsequently prepared a document purporting to be a transcript of the recording mentioned in his petition, which was filed with the court. On September 9, 2021, the parties appeared before the court for a hearing, among other things, on the father’s petition. Before the commencement of the hearing, however, the mother’s attorney made an oral application, in effect, under CPLR 3211(a)(7) to dismiss the father’s petition. By order dated September 9, 2021, the court granted the mother’s application without a hearing. The Appellate Division held, inter alia, that to establish a violation of a Family Court order, the petitioner has the burden of proving his or her case by clear and convincing evidence. To demonstrate the requisite prejudice, the petitioner must show that the respondent’s acts or omissions “significantly defeated, impaired, impeded, or prejudiced his [or her] rights.” The violation of a court order, standing alone, is insufficient to punish a party for civil contempt. Further, a hearing need only be conducted if a factual dispute exists which cannot be resolved on the papers alone. Moreover, a violation petition is subject to the requirements of CPLR 3013 and is required to be sufficiently particular as to provide notice to the court and opposing party of the occurrences to be proved and the material elements of each cause of action. When reviewing a motion to dismiss pursuant to CPLR 3211(a)(7), which is proper in Family Court proceedings because they are civil in nature, the court affords the petition a liberal construction, accepts the allegations as true, and grants the petitioner the benefit of every favorable inference. Nonetheless, dismissal is warranted where the allegations in the petition do not set forth sufficient facts which, if established at an evidentiary hearing, could afford a basis for granting the relief sought. It found that liberally construing the allegations in the father’s petition and granting him the benefit of every favorable inference, the father’s allegations, even if established at an evidentiary hearing, could not afford a basis for a finding that the mother violated the August 2020 order. Even assuming the father adequately alleged a violation of the August 2020 order, he failed to set forth facts that could support a finding that the mother “significantly defeated, impaired, impeded, or prejudiced his rights”. In any event, the materials the father subsequently submitted in support of his petition provided the Family Court with adequate information to conclude, without a hearing, that the father could not establish a violation. Therefore, the court correctly granted the mother’s application and dismissed the father’s petition.
Because the Family Court has jurisdiction to determine whether an individual parent is responsible for the support of a child in appropriate cases, it also has the inherent authority to ascertain whether a respondent is a child’s parent.
In Matter of Joseph v Granderson--- N.Y.S.3d ----, 2024 WL 1545667, 2024 N.Y. Slip Op. 01921 (2d Dept,2024) the mother commenced a proceeding, alleging that Granderson was the father of her child, born in 2015, and chargeable with support for the child. In support of her petition, she submitted a birth certificate that listed Granderson as the child’s father and indicated that the child was given Granderson’s last name at birth, and a DNA report showing a 99.99% probability of Granderson’s paternity of the child. In addition, she submitted a so-ordered stipulation of settlement entered into by the parties in a custody proceeding concerning the child in which the parties agreed, among other things, that it was in the child’s best interests for Granderson, who was identified as “the ‘Father’ ” of the child, to have parental access with the child at least once per week. Granderson appeared in the support proceeding but did not answer the petition or contest that he was the child’s father. The Support Magistrate, sua sponte, dismissed the mother’s petition without prejudice on the ground that the Family Court lacked subject matter jurisdiction to enter an order of child support because the parties were never married and there was no acknowledgment of parentage or order of filiation. The court denied the mother’s objections. The Appellate Division reversed. It held, inter alia, that a support proceeding commenced pursuant to Family Court Act article 4 indisputably confers upon the Family Court jurisdiction to determine whether an individual parent is responsible for the support of a child. Statutory jurisdiction, as the Family Court has, carries with it such ancillary jurisdiction as is necessary to fulfill the court’s core function. Thus, because the Family Court has jurisdiction to determine whether an individual parent is responsible for the support of a child in appropriate cases, it also has the inherent authority to ascertain whether a respondent is a child’s parent. Here, since the mother asserted that Granderson was the child’s parent and therefore chargeable with child support, this proceeding was within the Family Court’s Article 4 jurisdiction. Moreover, given the mother’s evidentiary submissions, the Family Court should have granted her objections and precluded Granderson from raising the issue of paternity under the doctrine of judicial estoppel. A party who assumes a certain position in a prior legal proceeding and secures a favorable judgment therein is precluded from assuming a contrary position in another action simply because his or her interests have changed. Granderson successfully obtained an order awarding him parental access to the child based on his assertion that he was a parent to the child. Thus, Granderson was judicially estopped from taking the inconsistent position that he was not a parent to the child for the purpose of child support.
There was no “intimate relationship” between the appellant and the petitioner’s four children within the meaning of Family Court Act § 812(1)(e) where the appellant and the subject children had no direct relationship, and were not related by blood or marriage, but three of the subject children had the same biological father as the appellant’s children.
In Matter of Watson v Brown, --- N.Y.S.3d ----, 2024 WL 950057, 2024 N.Y. Slip Op. 01191 (2d Dept.,2024) the petitioner commenced a family offense proceeding against the appellant seeking, inter alia, an order of protection in favor of The Family Court denied the appellant’s application to dismiss the petition for lack of subject matter jurisdiction. After a hearing, the court granted an order of protection in favor of the subject children. The Appellate Division observed that pursuant to Family Court Act § 812(1), the Family Court’s jurisdiction in family offense proceedings is limited to certain prescribed acts that occur “between spouses or former spouses, or between parent and child or between members of the same family or household. Members of the same family or household” include, among others, “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” (Family Ct Act § 812[1][e]. “Expressly excluded from the ambit of ‘intimate relationship’ are ‘casual acquaintance[s]’ and ‘ordinary fraternization between two individuals in business or social contexts. Beyond those delineated exclusions, what qualifies as an intimate relationship within the meaning of Family Court Act § 812(1)(e) is determined on a case-by-case basis, and the factors a court may consider include ‘the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship’. Here, the appellant and the subject children had no direct relationship, and the appellant was only connected to the subject children through her children, who were the half-siblings of three of the subject children. The appellant and the subject children did not reside together and there was no evidence that they had any direct interaction with each other. Accordingly, there was no “intimate relationship” between the appellant and the subject children within the meaning of Family Court Act § 812(1)(e). Therefore, the Family Court should have dismissed the proceeding insofar as asserted on behalf of the subject children for lack of subject matter jurisdiction.
April 10, 2024
A disappointed litigant may not file successive custody modification petitions alleging only the same operative facts.
In Matter of Capruso v Kubow,--- N.Y.S.3d ----, 2024 WL 1423839, 2024 N.Y. Slip Op. 01809 (2d Dept.,2024) the Family Court, enjoined the father from filing any further petitions, inter alia, to modify custody or parental access relating to the younger child without leave of court. The Appellate Division affirmed. It held that a disappointed litigant may not file successive custody modification petitions alleging only the same operative facts. While public policy generally mandates free access to the courts, a party may forfeit that right if she or he abuses the judicial process by engaging in meritless litigation motivated by spite or ill will”. Here, the record reflected that after the father was unsuccessful in his prior appeal to the Court (see Matter of Capruso v. Kubow, 195 A.D.3d 614, 149 N.Y.S.3d 514), he filed multiple motions in the Family Court and the Supreme Court, seeking again to enforce the parental access provisions of the judgment of divorce and to modify the 2018 order. Under the circumstances, the record supported the Family Court’s determination to enjoin the father from filing additional petitions, motions, or orders to show cause or, in effect, from commencing any further proceedings related to custody or parental access without leave of court.
In Neglect Proceeding ACS progress notes, although marked for identification at the virtual hybrid hearing, were never entered into evidence, and therefore, could not be considered
In Matter of Easton J, --- N.Y.S.3d ----, 2024 WL 1423843, 2024 N.Y. Slip Op. 01810 (2d Dept.,2024) Family Court found that the father neglected the subject children by committing an act of domestic violence against the nonrespondent mother while the children were present in the home and within the hearing of the children. The Appellate Division found that the evidence did not support the Family Court’s finding that the allegations of neglect were proven by a preponderance of evidence. A recording of a 911 call made by the mother, which was admitted into evidence without objection, was the only admissible evidence offered in support of the petition. During this call, the mother told the 911 operator that the father was harassing her and threatening her, that there were weapons in the house, including knives and guns, and that she was in fear for her life. However, no evidence was admitted in support of ACS’s position that the children observed, were aware of, or were in close proximity to the domestic violence, and that their physical, mental, or emotional condition was impaired or was in danger of becoming impaired. While ACS contended that the redacted ACS progress notes were admitted into evidence, and contained the children’s out-of court-statements demonstrating the children were aware of and heard the domestic violence, the progress notes, although marked for identification at the virtual hybrid hearing, were never entered into evidence, and therefore, could not be considered. Thus, ACS failed to establish that the children’s physical, mental, or emotional condition was impaired or was in danger of becoming impaired by the father’s acts of violence toward the mother.
Appellate Division, Third Department
Family Ct Act § 1113 provides that the time in which to take an appeal runs from the date the clerk of the court mails the order with notice of entry. There is no provision for “service by electronic means
In Matter of Robert M., v. Barbara L.,--- N.Y.S.3d ----, 2024 WL 1446357, 2024 N.Y. Slip Op. 01847 (3d Dept.,2024) the Family Court dismissed petitioner’s application to modify a prior order of visitation. At the outset, it rejected the mother’s contention that the appeal was untimely. An appeal is taken from a Family Court order by filing an ‘original notice of appeal with the clerk of the family court in which the order was made and from which the appeal is taken,’ then serving that notice upon ‘any adverse party as provided for in [CPLR 5515(1)] and upon the child’s attorney, if any,’ within the time allowed by Family Ct Act § 1113. Family Ct Act § 1113 specifies that an appeal “must be taken no later than [30] days after the service by a party or the child’s attorney upon the appellant of any order from which the appeal is taken, [30] days from receipt of the order by the appellant in court or [35] days from the mailing of the order to the appellant by the clerk of the court, whichever is earliest.” The record did not reflect that the father was served with the order by another party or the attorney for the child or that the clerk of the court mailed a copy of the order to him. It did appear that the clerk of the court emailed a copy of the order to the father’s attorney on May 11, 2022; Family Ct Act § 1113 provides that the time in which to take an appeal runs from the date the clerk of the court “mail[s]” the order with notice of entry, however, and there is no provision for “service by electronic means.” Accordingly, as the father was served the order by the court via email, which is not a method provided for in Family Court Act § 1113, and there is no indication that he was served by any of the methods authorized by the statute, the time to take an appeal did not begin to run and that it cannot be said that the father’s appeal was untimely.
April 3, 2024
Appellate Division, Second Department
A motion in limine is an inappropriate substitute for a motion for summary judgment, and in the absence of any showing of good cause for the late filing of such a motion, should not be considered.
In DeSantis v DeSantis, 2024 WL 1357900 (2d Dept.,2024) in 2016 the plaintiff commenced an action for a divorce, including equitable distribution of a business known as The Royal Group, LLC ( LLC). In 2019, the defendant moved, inter alia, to set the valuation date of the LLC as the date of trial and the plaintiff cross-moved to set the valuation date of the LLC as the date of commencement of the action. By order dated August 3, 2021, a special referee who was appointed to determine the issue set the valuation date as the date of commencement of the action. No appeal was taken from that order. Just prior to trial, the plaintiff moved, inter alia, to preclude the defendant from offering into evidence certain documents related to the value of the LLC after the date of commencement of the action. The plaintiff also sought, in effect, to set the minimum value of the LLC at $2,450,000 and preclude any evidence of a lower value. Supreme Court granted the motion. The Appellate Division reversed. It held that an order, made in advance of trial, which merely determines the admissibility of evidence is an unappealable advisory ruling (Rondout Elec., Inc. v. Dover Union Free School Dist., 304 A.D.2d 808, 810, 758 N.Y.S.2d 394). The portion of the order which precluded evidence at trial as to the value of the LLC after the date of commencement of the action in accordance with a prior order setting that as the valuation date did not limit the scope of issues to be tried or affect a substantial right, but, rather, was an unappealable advisory ruling concerning the admissibility of evidence. The appeal from that portion of the was dismissed (see Credendino v. State of New York, 211 A.D.3d 807, 178 N.Y.S.3d 457). However, that branch of the plaintiff’s motion which sought, in effect, to set the minimum value of the LLC at $2,450,000 and preclude any evidence of a lower value, while styled as a motion in limine, was the functional equivalent of an untimely motion for partial summary judgment determining that the value of the LLC was at least $2,450,000. A motion in limine is an inappropriate substitute for a motion for summary judgment, and “in the absence of any showing of good cause for the late filing of such a motion,” should not have been considered.
Supreme Court
The subsequent termination of a religious marriage does not necessarily terminate any separate marriage recognized by the State of New York pursuant to DRL §12.
In T.I. v. R.I., 2024 WL 1290631 (Sup Ct, 2024) the parties participated in a religious solemnization ceremony pursuant to DRL §12 in March 2014 and executed a ketubah [religious marriage contract] but never obtained a New York State civil marriage license pursuant to DRL §13.There is one (1) child of the relationship born in October 2015. The husband commenced a divorce action in December 2015. In that divorce action, the husband represented under oath that the parties were married in a religious solemnization ceremony in Kings County, New York in March 2014 (see R.I. v. T.I., 60 Misc.3d 1226(A), 2018 WL 4008782 [Kings County, August 17, 2018]). After the trial decision was issued, the parties notified the Court that they had reconciled. The parties filed a written stipulation to discontinue the action with prejudice. The Court conducted a lengthy allocution of the parties on the stipulation to discontinue on the record. The wife commenced a second divorce action and the husband moved to dismiss this action on the ground that in November 2022 he sought and obtained an “invalidation” of the parties’ religious marriage from a rabbinical court. Therefore, there was no longer any marriage between the parties recognized by the State of New York and, there can be no divorce action. The husband obtained an invalidation of the religious marriage from a rabbinical court based, allegedly, on two (2) religious principles: 1) that the wife had not disclosed her alleged mental health history to the husband prior to the solemnization ceremony, resulting in a religious basis to “invalidate” the religious marriage; and 2) that the person who solemnized the ceremony had lost religious authorization to do so within that religious community. Supreme Court observed that there is no requirement in DRL §12 that the religious solemnized marriage continue for a certain duration of time before that marriage is recognized by the State of New York and no requirement in DRL §12 that the religious solemnized marriage continue as a predicate for the State of New York to continue recognizing the underlying marriage. Consistent with the decision in In re Farraj, 72 A.D.3d 1082, 900 N.Y.S.2d 340 [2 Dept.,2010], the parties had a justifiable expectation that their marriage was recognized by the State of New York pursuant to DRL § 12 since they participated in a formal marriage ceremony in accordance with their religious traditions to the best of their knowledge. The presumption of marriage is so strong in New York that in Spalter v. Spalter the First Department upheld the trial court’s determination that there was a valid marriage where the parties participated in a religious solemnization but never obtained a marriage license pursuant to DRL §13 even where the parties entered into a written agreement expressly stating that they did not intend to have their religiously solemnized marriage recognized as a marriage by the State of New York (224 A.D.3d 419, ––– N.Y.S.3d –––– [2024]). Once a marriage recognized by the State of New York is formed, whether by obtaining a marriage license (DRL §13) and complying with DRL §25 or by a solemnization ceremony pursuant to DRL §12, that marriage exists as a separate legally recognizable relationship, is protected by and subject to civil law and a party cannot unilaterally “invalidate” that marriage and avoid any resulting obligations and liabilities. It is well-established that the Supreme Court can grant a divorce in a marriage recognized by the State but that it has no constitutional authority to terminate religious marriage or to force a defendant to provide a religious divorce to a plaintiff. Similarly, the subsequent termination of a religious marriage does not necessarily terminate any separate marriage recognized by the State of New York pursuant to DRL §12. The husband’s motion to dismiss and for summary judgment was denied. The wife’s cause of action for divorce was entitled to adjudication pursuant to DRL §12.
March 27, 2024
Family Court had the authority to determine that respondent committed a family offense of while also deciding that an order of protection was not required.
In Damineh M. V Bedouin L.J., --- N.Y.S.3d ----, 2024 WL 1200206, 2024 N.Y. Slip Op. 01611 (1st Dept.,2024) the Appellate Division held that the Family Court had the authority to determine that respondent committed the family offense of harassment in the second degree while also deciding that the order of protection was not required to be continued after the date of the court’s determination.
Domestic Relations Law §§ 75 and 76 do not apply to child support proceedings. Section 580–205(a) of the Family Court Act governs when a state has continuing, exclusive jurisdiction to modify its child support order
In Matter of Sherman v Killian, --- N.Y.S.3d ----, 2024 WL 1184382, 2024 N.Y. Slip Op. 01550 (2d Dept.,2024) the parties executed a settlement agreement dated May 6, 2021 which included a provision stating that the parties agreed that the mother and the child could relocate to Florida and that the parties agreed to cooperate with the filing of a petition to terminate the father’s obligation to pay, among other things, basic child support. As of June 2021, the mother and the child were residing in Florida. In May 2021, the father filed a petition to modify the order of child support to terminate his child support obligation pursuant to the terms of the settlement agreement (modification petition). The mother moved, inter alia, to dismiss the modification petition on the ground, inter alia, that the court lacked subject matter jurisdiction pursuant to Domestic Relations Law § 75–a(7). Family Court, granted the mother’s motion concluding inter alia, that the State of New York did not have continuing, exclusive jurisdiction over the proceedings. The Appellate Division reversed. It noted that the Uniform Interstate Family Support Act (UIFSA), article 5–B of the Family Court Act, grants continuing, exclusive jurisdiction over a child support order to the state that issued the order (Family Ct Act § 580–205[a]). The issuing state loses such jurisdiction where none of the parties or children continue to reside in that state. Family Ct Act § 580–205[a]). Although the UIFSA does not define the terms ‘reside’ or ‘residence,’ it has been determined that a person is a ‘resident’ of New York State when he or she has a significant connection with some locality in the state as the result of living there for some length of time during the course of a year. The provisions of Domestic Relations Law §§ 75 and 76 do not apply to child support proceedings. Rather, section 580–205(a) of the Family Court Act governs when a state has continuing, exclusive jurisdiction to modify its child support order. It held that Family Court should have denied the mother’s motion to dismiss the modification petition. The mother failed to show that New York lost continuing, exclusive jurisdiction over the order of child support. The matter was remitted for a new hearing and determination.
Child Support obligation suspended where, among other things, mother encouraged the estrangement of the father and the child, and deliberately frustrated visitation and made no effort to assist the child in restoring the relationship with the father
In Matter of Franklin v Quinones, --- N.Y.S.3d ----, 2024 WL 1184205, 2024 N.Y. Slip Op. 01541(2d Dept.,2024),, the Appellate Division found that evidence adduced at the modification hearing justified a suspension of the father’s child support obligation (see Matter of Morgan v. Morgan, 213 A.D.3d at 670, 182 N.Y.S.3d 262; Matter of Sullivan v. Plotnick, 145 A.D.3d 1018, 1021, 47 N.Y.S.3d 329; Matter of Thompson v. Thompson, 78 A.D.3d 845, 847, 910 N.Y.S.2d 536). Family Court determined that the mother did not establish that the father sexually abused the child and also determined that the mother alienated the child from the father. Moreover, there was evidence that the mother viewed the visits between the father and the child as harmful to the child, and that the mother never said anything encouraging to the child about the visits or the father-child relationship. Further, the evidence established that the mother “encouraged the estrangement of the father and [the child], and deliberately frustrated visitation” and “and made no effort to assist the [child] in restoring [the] relationship with the father” Under these circumstances, the court should have granted of the father’s cross-motion to suspend his child support obligation.
A writ of habeas corpus is not the proper procedure for seeking review ofa custody order, entered upon default.
In Matter of Mills v Holley --- N.Y.S.3d ----, 2024 WL 1184171 (Mem), 2024 N.Y. Slip Op. 01547 (2d Dept.,2024) the Appellate Division held that the Supreme Court properly denied the father’s petition for a writ of habeas corpus. A writ of habeas corpus is not the proper procedure for seeking review of the custody order, which was entered upon the father’s default. The proper procedure is to move to vacate the custody order, and, if the motion is denied, to appeal from the order denying the motion.
An award of custody must be based on the best interests of the child and not a desire to punish an allegedly recalcitrant parent
In Kaleta v Kaleta,--- N.Y.S.3d ----, 2024 WL 1225359, 2024 N.Y. Slip Op. 01650 (4th Dept., 2024) the Appellate Division concluded that the court’s determination in this modification proceeding to award primary physical custody to the father lacked an evidentiary basis in the record. It reminded the court that an award of custody must be based on the best interests of the child and not a desire to punish an allegedly recalcitrant parent’. It was also compelled to remind the court that the disclosure of any statement made by a child during a confidential Lincoln hearing is improper, regardless of how innocuous that statement may appear to be. Despite the fitness of both parents, it found it was in the best interests of the child to award primary physical residence of the child to the mother.
Contention that AFC improperly advocated contrary to the childs wishes was not preserved for appellate review because no motion was made to remove the AFC
In Matter of Angelina M., 224 A.D.3d 1223, 205 N.Y.S.3d 299, 2024 N.Y. Slip Op. 00500 (4th Dept., 2024) a neglect proceeding, the mother contended on appeal that the Attorney for the Child (AFC) for the daughter and the AFC for her sons improperly advocated a position that was contrary to the children’s express wishes. The Appellate Division held that mother’s contention was not preserved for appellate review because she made no motion to remove the AFCs (see Matter of Muriel v. Muriel, 179 A.D.3d 1529, 1530, 118 N.Y.S.3d 861 [4th Dept. 2020]).
March 20, 2024
Appellate Divison, First Department
Husband precluded from offering evidence or testimony regarding four wire transfers totaling approximately $1.4 million, and the Court properly deemed as true the wife’s contention that the funds emanated from the husband’s overseas assets.
In Skouloudi v Kyraicou, --- N.Y.S.3d ----, 2024 WL 629199, 2024 N.Y. Slip Op. 00822 (1st Dept.,2024) the Appellate Division affirmed an order which found defendant husband had not complied with the court’s April 5, 2022, conditional preclusion order, precluded the husband from offering evidence or testimony regarding four wire transfers totaling approximately $1.4 million made to plaintiff wife on or about February 3, 2017, and deemed as true the wife’s contention that such funds emanated from the husband’s overseas assets. It held that the court was entitled to credit evidence that indicated that the funds comprising the Wire Transfers, even if nominally sent from an Oppenheim account titled in the names of the husband’s parents, were not actually the parents’ assets, but instead were assets that came from the husband’s overseas holdings. The wife attested to conversations in which the husband, who insisted that they keep their finances separate during the marriage, told her that certain streams of his income had been placed in overseas accounts. She further attested to the unlikelihood that his parents, an auto mechanic and seamstress who lived a modest lifestyle in Cyprus, would have had the means to transfer to her the over $1.4 million at issue. The motion court properly found that the tardy disclosure produced by the husband shed no light on the key issues of the funds’ source and the nature of the Oppenheim account from which the funds, at least nominally, came. It rejected the husband's argument that the remedy of preclusion was improper because the wife did not meet her burden to show that he “willfully” failed to comply with the Conditional Order. However, his focus on “willfulness” was misplaced in this case, which involved noncompliance with an “order for disclosure,” namely, the Conditional Order, and not merely with discovery demands. Therefore, only a showing that he “refuse[d] to obey” the order was required – a showing that the wife amply made.
Appellate Division, Second Department
Defendant failed to file a revised statement of net worth and the Supreme Court, therefore, precluded her from offering testimony or other evidence with regard to her income or expenses. Supreme Court providently exercised its discretion in declining to award defendant maintenance, considering, inter alia, her failure to file a revised statement of net worth and the court’s resulting inability to sufficiently evaluate her finances
In D’Ambra v D’Ambra, --- N.Y.S.3d ----, 2024 WL 1081237, 2024 N.Y. Slip Op. 01291 (2d Dept., 2024) the plaintiff and the defendant were married on January 23, 2007. They thereafter purchased a condominium in Flushing, which served as the marital residence, and a rental property in Florida. Although the parties had no children together, the defendant’s adult son from a prior relationship began residing with them in 2011. During the marriage, the plaintiff paid all marital expenses and the defendant did not earn an income. In May 2014, the plaintiff commenced this action for a divorce. Prior to trial, the defendant failed to file a revised statement of net worth and the Supreme Court, therefore, precluded her from offering testimony or other evidence with regard to her income or expenses. Following a trial the Court awarded the defendant 15% of the equity in the marital residence. After deducting the sum of $45,000 from the full value of a Florida rental property as a credit to the plaintiff, the Court awarded the defendant 15% of the remaining value. The court found that the plaintiff was entitled to a credit of $150,000 due to a fraud perpetrated upon him by the defendant relating to a transfer of funds to one of her family members in China. Since the credit to the plaintiff was in excess of any amount otherwise owed to the defendant, the court concluded, among other things, that she was not entitled to an award of any assets or funds. It declined to award the defendant maintenance. On March 20, 2020, the court entered a judgment of divorce, on the ground of irretrievable breakdown of the parties’ relationship for a period of at least six months. The Appellate Division observed that pursuant to Domestic Relations Law § 170(7), “[a]n action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage [where] [t]he relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. It held that the opposing spouse in a no fault divorce action pursuant to Domestic Relations Law § 170(7) is not entitled to litigate the other spouse’s sworn statement that the relationship has broken down irretrievably for a period of at least six months.” It also held that Supreme Court providently exercised its discretion in declining to award defendant maintenance, considering, inter alia, her failure to file a revised statement of net worth and the court’s resulting inability to sufficiently evaluate her finances. The court’s determination as to the purported fraud perpetrated by the defendant—concluding, in effect, that she had wastefully dissipated marital assets, entitling the plaintiff to a credit against the defendant’s equitable portion of these marital assets—was also a provident exercise of its discretion, hinging on the court’s credibility assessments of the parties.
When a party moves for summary judgment based on the alleged waiver of equitable distribution, maintenance, and counsel fees in a prenuptial agreement, the moving party must, in addition to eliminating all triable issues of fact make a prima facie showing that the terms of the agreement were not unconscionable and that the agreement was not the product of fraud, duress, overreaching or other inequitable conduct.
In Almountaser v Abdo, --- N.Y.S.3d ----, 2024 WL 1081055, 2024 N.Y. Slip Op. 01285 (2d Dept., 2024) the plaintiff and the defendant were married in Yemen in July 2005. In January 2020, the plaintiff commenced this action for a divorce. During the pendency of this litigation, the defendant submitted a copy of the parties’ marriage license and a certified English translation of it that he obtained from the Yemeni government. The plaintiff, who possessed the original marriage license, also submitted a certified English translation thereof. Both versions contained what is known as a Mahr agreement, which the parties assert is an agreement between parties to a marriage, in accordance with Islamic law, that the husband will pay to the wife a specified sum in the event of a divorce. The defendant contended that the Mahr agreement resolved all issues concerning equitable distribution, maintenance, and counsel fees. The plaintiff contended, inter alia, that the Mahr agreement does not resolve those financial issues because the agreement contains no waiver of equitable distribution, maintenance, or counsel fees. In addition, the respective translations of the marriage license submitted by the parties differed as to the date of the marriage, the names of the witnesses to the marriage, the amount due pursuant to the Mahr agreement, and the specific language surrounding the Mahr agreement. Supreme Court denied defendants motion for summary judgment dismissing so much of the complaint as sought awards of equitable distribution, maintenance, and counsel fees. The Appellate Division affirmed. It held that when a party in a divorce action moves for summary judgment to dismiss based on the alleged waiver of equitable distribution, maintenance, and counsel fees in a prenuptial agreement, the moving party must, in addition to eliminating all triable issues of fact make a prima facie showing that the terms of the agreement were not unconscionable and that the agreement was not the product of fraud, duress, overreaching or other inequitable conduct. Here, the defendant failed to eliminate triable issues of fact as to which English translation of the marriage license controls and as to whether the Mahr agreement was unconscionable. Further, neither translation of the Mahr agreement contains an explicit waiver of equitable distribution, maintenance, or counsel fees.
Testimony and report of the forensic evaluator were admissible, where her expert opinion was mainly based upon direct knowledge derived from interviews of the parties, and observations of the parties’ interactions with the child
In Matter of Frias v Arroyo, --- N.Y.S.3d ----, 2024 WL 1081262, 2024 N.Y. Slip Op. 01307 (2d Dept.,2024) the Appellate Division held, inter alia, that the Court did not err in finding that the testimony and report of the forensic evaluator were admissible, since her expert opinion was mainly based upon direct knowledge derived from interviews of the parties, observations of the parties’ interactions with the child, and interviews of the mother’s two older children (see Matter of Chana J.A. v. Barry S., 135 A.D.3d 743, 744, 22 N.Y.S.3d 586; Lubit v. Lubit, 65 A.D.3d 954, 955–956, 885 N.Y.S.2d 492).
Although the Family Court failed to strictly follow the procedural requirements in Family Court Act § 1033–b, reversal was not warranted where there was no indication that the father, who was aided by counsel, was not fully aware of the contents of the petition
In Matter of Timothy K ,--- N.Y.S.3d ----, 2024 WL 1081069, 2024 N.Y. Slip Op. 01308 (2d Dept.,2024) the Appellate Division affirmed an order of fact-finding and disposition, which after fact-finding and dispositional hearings,, found that the father neglected the subject children, placed the father under the supervision of the Department of Social Services for one year, and released the children to the nonrespondent mother subject to the supervision of the Department of Social Services for a period of one year. The Court observed that Family Ct Act § 1033–b(1)(b) requires the court, at an initial appearance based on a petition filed pursuant to Family Ct Act article 10, to, among other things, advise respondent of the allegations in the petition. Although the Family Court failed to strictly follow the procedural requirements set forth in Family Court Act § 1033–b, reversal was not warranted under the particular circumstances of this case. There was no indication that the father, who was aided by counsel, was not fully aware of the contents of the petition at the time of his first appearance, as evinced by the father’s representation that he had contacted a number of programs recommended by the petitioner and the representation by the father’s attorney that he and the father would continue to discuss a resolution of the petition.
Appellate Division, Fourth Department
A retirement account opened by one spouse prior to marriage consists of marital property only with respect to the value of the contributions made during the marriage, or to the extent that an increase in market value is attributable to the other spouse.
In Aggarwal v Aggarwal, --- N.Y.S.3d ----, 2024 WL 1129993, 2024 N.Y. Slip Op. 01459 (4th Dept., 2024) the Appellate Division, inter alia, held that Supreme Court erred in determining that the premarital value of defendants medical practice was five percent of the total value “without articulating its reason for doing so (see Domestic Relations Law § 236 [B] [5] [g]). It remitted the matter to Supreme Court for “appropriate findings of fact and conclusions of law as required by statute” with respect to the valuation of the marital component of defendants’ medical practice.
The Appellate Division also held that the court erred in determining that certain real property in Vermont was a marital asset. The initial determination of whether a particular asset is marital or separate property is a question of law, subject to plenary review on appeal. It is well settled that property that is acquired in exchange for separate property, even if the exchange occurs during the marriage, is separate property. Here, defendant established with sufficient particularity that the Vermont property was purchased with proceeds from his sale of separate property and, therefore, is not a marital asset. It modified the judgment accordingly.
The Appellate Division also held that the court erred in determining that the value of his premarital contributions to his individual retirement account (IRA) is marital property. A retirement account opened by one spouse prior to marriage consists of marital property only with respect to the value of the contributions made during the marriage, or to the extent that an increase in market value is attributable to the other spouse. Here, the premarital balance of defendants’ IRA was $94,256.84, and that portion, along with the growth attributable thereto, did not constitute marital property subject to equitable distribution. It modified the judgment by vacating the decretal paragraph referring to defendants’ IRA, and directed the court on remittal to recalculate the amount of defendants’ IRA that is marital.
The Appellate Division also held that with respect to the awards of spousal maintenance and child support, the court erred in imputing income to him in the amount of $250,000 inasmuch as the court did not sufficiently articulate the basis for its imputation and there was no record evidence that supported its calculations. It vacated the awards and directed the court on remittal to articulate a basis for the imputation of income to defendant with “record support for its determination”and, if necessary, to recalculate those amounts.
The well-settled marriage recognition rule ‘recognizes as valid a marriage considered valid in the place where celebrated
In Mihigo v Mihigo, --- N.Y.S.3d ----, 2024 WL 1129199, 2024 N.Y. Slip Op. 01397 (4th Dept., 2024) on appeal from a judgment of divorce the Appellate Division rejected defendants argument that plaintiff failed to meet her burden of establishing that the parties were married in Africa in 1994. The well-settled marriage recognition rule ‘recognizes as valid a marriage considered valid in the place where celebrated. The parties testified that they met in 1987 or 1988 in what is now known as the Democratic Republic of the Congo and began living together as husband and wife and had children together shortly thereafter. In August 1994, in preparing to travel to a refugee camp to seek asylum, they obtained a document to show that they were married. Supreme Court found that the parties were married in 1994, and it afforded that determination deference. The parties’ testimony showed that they were considered married in their culture in Africa.
Although the appeal was moot, under the unusual circumstances of this case, the Appellate Division expressed its deep concern with the Family Court Judge’s abandonment of her neutral judicial role during the sua sponte removal hearing
In Matter of Zyion B., --- N.Y.S.3d ----, 2024 WL 395401, 2024 N.Y. Slip Op. 00550 (4th Dept., 2024) a neglect proceeding, although the appeal was moot, under the unusual circumstances of this case, the Appellate Division expressed its deep concern with the Family Court Judge’s abandonment of her neutral judicial role during the sua sponte removal hearing. It concluded that the Judge failed to properly balance her role in parens patriae with her statutory obligation to ensure that the parties received due process at the removal hearing, specifically with respect to the due process requirement that the hearing be conducted before an impartial jurist (see Family Ct Act § 1011; People v. Novak, 30 N.Y.3d 222, 225,[2017]; Matter of Marie B., 62 N.Y.2d 352 [1984]). At the hearing, the Judge took on the function and appearance of an advocate by choosing which witnesses to call and “extensively participating in both the direct and cross-examination of ... witnesses” (Matter of Jacqulin M., 83 A.D.3d 844 [2d Dept. 2011]), with a clear intention of strengthening the case for removal. For example, she asked a DCFS caseworker whether the mother was “hostile, aggressive, violent or out of control,” and repeated questions to that caseworker using the same or similar phrasing at least 10 times. When the mother’s counsel objected to the Judge’s leading questions of another witness regarding incidents outside the relevant time period, the Judge overruled the objection, stating that “there’s no one else to run the hearing except for me.” She also introduced and admitted several written documents during the mother’s testimony over the objection of the mother’s counsel, and despite the mother’s statement that she could not read and was not familiar with the documents. In short, the Judge “essentially ‘assumed the parties’ traditional role of deciding what evidence to present’ ” while simultaneously acting as the factfinder (People v. Arnold, 98 N.Y.2d 63, [2002]) and thereby “transgressed the bounds of adjudication and arrogated to [herself] the function of advocate, thus abandoning the impartiality required of [her]” (Matter of Carroll v. Gammerman, 193 A.D.2d 202 [1st Dept. 1993]; see Matter of Kyle FF., 85 A.D.3d 1463, [3d Dept. 2011]). This “ ‘clash in judicial roles,’ ” in which the Judge acted both as an advocate and as the trier of fact, at the very least created the appearance of impropriety, particularly when the Judge aggressively cross-examined the mother regarding topics that were not relevant to the issue of the child’s removal and seemed designed to embarrass and upset the mother. One such area of cross-examination concerned the fact that the mother had become pregnant several months before the hearing, but had been forced to terminate the pregnancy when it was determined to be ectopic. The Judge repeatedly questioned the mother regarding how many times the mother had engaged in sexual intercourse with the father of the terminated fetus, even though such information does not appear to have been relevant to the issue of the subject child’s placement inasmuch as, inter alia, there was no indication that the man was ever in the subject child’s presence. The Judge also asked the mother baseless questions about whether that man was a pedophile. It is the function of the judge to protect the record at trial, not to make it[, and] the line is crossed when,” as here, “the judge takes on either the function or appearance of an advocate at trial” (Arnold, 98 N.Y.2d at 67). Even difficult or obstreperous litigants are entitled to “patient, dignified and courteous” treatment from the court, and that judges must perform their duties “without bias or prejudice” (22 NYCRR 100.3 [B] [3], [4]). Given the lack of impartiality repeatedly exhibited by the ... Judge in this case, it strongly recommended that she consider whether recusal is appropriate for future proceedings involving the mother.
March 13, 2024
Appellate Division, Second Department
No intimate relationship within the meaning of FCA § 812(1)(e where the appellant and subject children had no direct relationship, the appellant was only connected to the subject children through her children, who were the half-siblings of three of the subject children, they did not reside together and there was no direct interaction with each other
In Matter of Watson v. Brown, 2024 WL 950057 (2d Dept.,2024) the petitioner commenced a proceeding seeking an order of protection in favor of the petitioner’s four children (subject children). The appellant and the subject children were not related by blood or marriage, but three of the children had the same biological father as the appellant’s children. Family Court denied the appellant’s oral application to dismiss the petition for lack of subject matter jurisdiction and after a hearing, granted an order of protection against the appellant and in favor of the subject children. The Appellate Division reversed. It held that pursuant to Family Court Act § 812(1), the Family Court’s jurisdiction in family offense proceedings is limited to certain prescribed acts that occur “between spouses or former spouses, or between parent and child or between members of the same family or household. Members of the same family or household include, among others, “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” (Family Ct Act § 812[1][e]). Expressly excluded from the ambit of ‘intimate relationship’ are ‘casual acquaintance[s]’ and ‘ordinary fraternization between two individuals in business or social contexts. Beyond those delineated exclusions, what qualifies as an intimate relationship within the meaning of Family Court Act § 812(1)(e) is determined on a case-by-case basis, and the factors a court may consider include the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Here, the appellant and the subject children had no direct relationship, and the appellant was only connected to the subject children through her children, who were the half-siblings of three of the subject children. The appellant and the subject children did not reside together and there was no evidence that they had any direct interaction with each other. Accordingly, there was no “intimate relationship” between the appellant and the subject children within the meaning of Family Court Act § 812(1)(e). Therefore, the Family Court should have denied the petition for lack of subject matter jurisdiction.
Supreme Court
A person who has judicially been declared to be incapacitated, and who is a relative of one of the parties can not serve process
In W.G.G.,v. J.D.S.-G., 2024 WL 998021( Sup. Ct, 2024) an action for a divorce, the Supreme Court held that a person who has judicially been declared to be incapacitated, and who is a relative of one of the parties can not serve process and legal papers in a matrimonial action. Any such purported service performed by that individual constitutes a nullity. For that reason the Supreme Court found a reasonable excuse for defendants default and vacated the default judgment.
Family Court
Family Court held that Support Magistrate erroneously relied on Family Court Act 581-206(b) in concluding that jurisdiction to determine parentage lapsed after the children reached one hundred and eighty (180) days.
In Matter of Sevastian N, 2024 WL 974380 (Fam Ct, 2024) two petitions were filed by Amy Z. against Lisa N. seeking to establish parentage of the subject children, Sabastian and Sullivan, 4-year-old twin boys. Sabastian and Sullivan were born in November 2019 through the process of assisted reproduction, where Lisa was the gestating intended parent. Amy asserted that she too was the intended parent as she agreed to start a family with Lisa, participated fully in the assisted reproduction process, birthing and parenting of the children. Amy sought a judgment and declaration of parentage naming her as the lawful parent of Sabastian and Sullivan. Lisa objected on the grounds that Amy never adopted the children or otherwise moved to protect her parenting rights in a timely fashion. She argued that Amy was barred under Family Court Act § 581-206 or under the doctrine of Laches. The Family Court observed that this case fell under Article 5-C of the Family Court Act, (The Parent Child Security Act). This statute was enacted after the birth of the subject children and is meant to be applied retroactively to protect children born through assisted reproduction. Family Court Act § 581-701 states in relevant part that “this legislation is hereby declared to be a remedial statute and is to be construed liberally to secure the beneficial interests and purposes thereof for the best interests of the child.” The Support Magistrate erroneously relied on Family Court Act 581-206(b) in concluding that jurisdiction to determine parentage lapsed after the children reached one hundred and eighty (180) days. The court concluded that this was neither a liberal construction of what the statute defines as exclusive continuing jurisdiction, nor lawful when one considers the interplay of Domestic Relation Law § 76, as the statute directs, which confers initial and continuing, exclusive jurisdiction upon the court to act. (citing Practice Commentaries McKinney’s Family Court Act § 581-206, by Professor Merril Sobie which in essence advises practioners to disregard this “one hundred and eighty (180) day” limitation and abide the jurisdictional provisions of DRL § 76 and § 76-a [UCCJEA] in exercising jurisdiction from the day a child is born until the day the child reaches the age of nineteen (19).) Lisa’s argument in opposition to Amy being granted an order of parentage was : (1) Amy should have followed through with an adoption of the children or otherwise legally defined her relationship to the children in writing, relying on Kass v. Kass, 91 N.Y.2d 554, 673 N.Y.S.2d 350, 696 N.E.2d 174 (1998); (2) even if the court finds no agreement was necessary to solidify her rights as a parent, then the doctrine of Laches barred Amy from asserting her rights as a parent; and (3) the proof Amy presented to demonstrate her intention to conceive and parent Sabastian and Sullivan did not meet the required clear and convincing burden of proof. None of Lisa’s arguments were persuasive either legally or factually. The court found that Amy has proven, by clear and convincing evidence, that she is Sabastian and Sullivan’s mother.
March 6, 2024
Appellate Division, Second Department
To support a finding of Neglect out-of-court statements of siblings may properly be used to cross-corroborate one another. However, they must describe similar incidents in order to sufficiently corroborate the sibling’s out-of-court allegations and be independent from and consistent with the other sibling’s out-of-court statement.
In Matter of Roland M., --- N.Y.S.3d ----, 2024 WL 821107, 2024 N.Y. Slip Op. 01011 (2d Dept.,2024) the Family Court dismissed the Neglect petitions. The Appellate Division reversed. It held that contrary to the determination of the Family Court, a preponderance of the evidence established that the father neglected the children by perpetrating acts of domestic violence against the mother in their presence. The out-of-court statement of the oldest child, Roland M., was sufficiently corroborated. The out-of-court statements of siblings may properly be used to cross-corroborate one another. However, such out-of-court statements must describe similar incidents in order to sufficiently corroborate the sibling’s out-of-court allegations and be independent from and consistent with the other sibling’s out-of-court statement. Roland M.’s statement was corroborated by the out-of-court statement of his sister, Rosalee M., that she witnessed the father drag the mother out the door and choke her. Roland M.’s statement was also corroborated by the ORT received by the petitioner, which reported that Roland M. called the authorities during the domestic violence incident, that during the incident the father strangled the mother with his hands, that Roland M. had to intervene, and that the father was being charged with strangulation in the second degree. Moreover, contrary to the Family Court’s determination, the evidence was sufficient to establish that the father’s acts of domestic violence against the mother in the children’s presence impaired, or created an imminent danger of impairing, the children’s physical, mental, or emotional condition. Accordingly, the Family Court should not have dismissed the petitions. The order appealed was reversed, the petitions reinstated, a finding of neglect entered, and the matter remitted to the Family Court, for a dispositional hearing and dispositions.
Appellate Division, Third Department
A respondent in an Article 10 proceeding has a constitutional and a statutory right to the assistance of counsel. Once counsel has been assigned, an attorney of record may withdraw from representation only upon reasonable notice to his or her client even where a party fails to appear at proceedings or there are allegations of a breakdown in communication between the client and the attorney.
In Matter of Richard TT. --- N.Y.S.3d ----, 223 A.D.3d 1070, 2024 WL 186673, 2024 N.Y. Slip Op. 00215 (3d Dept.,2024) following a report to petitioner in July 2020, the children were removed from respondents’ care and placed in the custody of petitioner, which filed separate petitions against the mother and the father seeking to find the children to have been neglected by the parents. The mother appeared at the initial permanency hearing in March 2021 and, although her phone number had been subsequently disconnected, she attended the next permanency hearing in September 2021. Given the disconnected phone number, the mother’s assigned counsel requested an adjournment because she had been unable to adequately prepare for the hearing, but represented that the mother had previously been “doing an excellent job keeping in touch” and the attorney did not want Family Court to think that the mother had just “disappeared” and suddenly appeared in court. Family Court denied the request and proceeded with the hearing. Thereafter, the mother did not appear at the continuation of the same permanency hearing scheduled in November 2021 or the adjourned date a week later in December 2021, where the mother’s assigned counsel orally moved to be relieved as counsel. Family Court granted the application and proceeded with the permanency hearing, held a fact-finding hearing on the neglect petition the next day without the mother or any counsel for her present, and ultimately found the children to be neglected by respondents. The Appellate Division reversed the finding as to the mother and remitted. It held that the mother, as a respondent in a proceeding pursuant to article 10 of the Family Ct Act, had both a constitutional and a statutory right to the assistance of counsel (see US Const, 6th Amend; NY Const, art I, § 6; Family Ct Act §§ 261, 262[a][i]]). Once counsel has been assigned, an attorney of record may withdraw from representation only upon reasonable notice to his or her client (see CPLR 321[b][2];. Such requirement remains true even where a party fails to appear at proceedings or there are allegations of a breakdown in communication between the client and the attorney. Here, there was no indication in the record that the mother’s assigned counsel had informed her that she was seeking to withdraw as counsel. Nor did the record reveal that Family Court made any inquiry into such notice or whether there was good and sufficient cause for such withdrawal). The record failed to demonstrate that the mother had “voluntarily absented herself from the proceedings,” as her assigned counsel, less than two months before immediately withdrawing at the start of the hearing, had commended the mother’s “excellent job keeping in touch” Further, the record from the November 2021 continuation of the permanency hearing revealed testimony from the caseworker that the mother had moved from the Rochester area to the Schenectady–Albany area, and had contacted the caseworker four days before the hearing date to schedule a conference call with her. For these reasons, it rejected the contentions of the appellate attorney for the children that the mother was in default. The deprivation of a party’s fundamental right to counsel is a denial of due process and requires reversal, without regard to the merits of the unrepresented party’s position. Because the directives of Family Ct Act § 262 were not followed, the mother did not need to demonstrate actual prejudice. Family Court’s finding of neglect against the mother was reversed and the case remitted for a new fact-finding hearing upon compliance with Family Ct Act §§ 261 and 262.
February 28, 2024
Appellate Division, Second Department
Supreme Court providently exercised its discretion in deviating downward from the presumptive amount under the CSSA where the the record did not establish that the difference between the parties’ gross incomes warranted applying the statutory percentages to the parties’ combined income in excess of the statutory cap.
In Surage v Surage, --- N.Y.S.3d ----, 2024 WL 696959, 2024 N.Y. Slip Op. 00923 (2d Dept.,2024) the parties were married in January 2014. The defendant had a child from a prior relationship, whom the plaintiff adopted in December 2015. In April 2018, the plaintiff commenced the action for a divorce and, the parties entered into a stipulation of settlement, resolving issues of custody and parental access. After a nonjury trial, Supreme Court determined that the plaintiff would pay the defendant $150 per month in child support, deviating downward from the presumptive amount under the Child Support Standards Act. The court determined that it would be unjust and inappropriate to direct the plaintiff to pay the presumptive amount where the parties shared equal physical custody of the child, their incomes were relatively similar, the child was covered under the plaintiff’s medical insurance, the child’s medical condition allowed for government benefits, the parties were only married for four years and three months, and the plaintiff adopted the defendant’s biological child. The Appellate Division affirmed. It observed that the statutory cap here was $148,000. Where the combined parental income exceeds the statutory cap, the court, in fixing the basic child support obligation on income over the statutory cap, has the discretion to apply the factors set forth in Domestic Relations Law § 240(1–b)(f), or to apply the statutory percentages, or to apply both” (see Domestic Relations Law § 240[1–b][c][3]). If the statutory formula yields a result that is unjust or inappropriate, the court can resort to the ‘paragraph (f)’ factors and order payment of an amount that is just and appropriate”. Supreme Court providently exercised its discretion in calculating the parties’ respective incomes for child support purposes, determining not to consider combined parental income above the statutory cap or to award any child support based on that income, and deviating downward from the presumptive amount under the CSSA. Although the plaintiff’s gross income was higher than the defendant’s gross income, the record did not establish that the difference between the parties’ gross incomes warranted applying the statutory percentages to the parties’ combined income in excess of the statutory cap.
Family Court should not have summarily determined, without a hearing, that it lacked jurisdiction under DRL § 76–a(2). Under that provison a court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination” if it has jurisdiction under the provisions of Domestic Relations Law § 76. Thus, the relevant inquiry was whether the court had jurisdiction under the provisions of DRL § 76.
In Matter of Josiah v. London, --- N.Y.S.3d ----, 2024 WL 697003, 2024 N.Y. Slip Op. 00904 (2d Dept.,2024) the parties were parents of three children. In an order dated January 21, 2016 Family Court, inter alia, awarded residential custody of the children to the father and parental access to the mother. At the time, the children had been residing with the father in North Carolina since 2012 or 2014. In an order dated April 12, 2018, the court, in effect, determined that it lacked exclusive, continuing jurisdiction over the matter. The father relocated with the children to Georgia in 2020. In September 2020, the mother filed a petition alleging that the father violated the January 2016 order, and in January 2021, she filed a petition to modify the January 2016 order to award her residential custody of the children. In both petitions, the mother alleged, inter alia, that the father relocated to Georgia without her consent and without leave of court, in violation of the January 2016 order. Thereafter, the father moved to dismiss the violation petition for lack of subject matter jurisdiction. Family Court granted the father’s motion to dismiss the violation petition for lack of subject matter jurisdiction and dismissed the modification petition on the same ground without a hearing. The Appellate Division held that the Family Court should not have summarily determined, without a hearing, that it lacked jurisdiction under Domestic Relations Law § 76–a(2). Under Domestic Relations Law § 76–a(2), a “court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination” if it has jurisdiction under the provisions of Domestic Relations Law § 76. Here, the court made the initial custody determination in the January 2016 order and had previously, in effect, determined that it lacked exclusive, continuing jurisdiction over the matter in the order dated April 12, 2018. Thus, the relevant inquiry pursuant to Domestic Relations Law § 76–a(2) was whether the court had jurisdiction under the provisions of Domestic Relations Law § 76. The court should have held a hearing on that issue since there were e disputed issues of fact as to the youngest child’s home state on the date of the commencement of these proceedings.
Appellate Division, Third Department
While a court may consider religion as a factor in determining the best interests of a child in custody disputes, it alone may not be the determinative factor
In Matter of Joseph XX., v. Jah-Rai YY., --- N.Y.S.3d ----, 2024 WL 715638, 2024 N.Y. Slip Op. 00950 (3d Dept., 2024) the Appellate Division observed that while a court may consider religion as a factor in determining the best interests of a child in custody disputes, “it alone may not be the determinative factor” (Aldous v. Aldous, 99 A.D.2d 197, 199, 473 N.Y.S.2d 60 [3d Dept. 1984]). Cases that do consider religion as a factor generally fall into three separate categories: (1) when a child has developed actual religious ties to a specific religion and one parent is better able to serve those needs; (2) a religious belief violates a state statute; and (3) when a religious belief poses a threat to the child’s well-being. This standard, enunciated in 1984, continues to be followed. None of the three categories outlined in Aldous were applicable to this case. The parties July 2020 consent order granted the parties joint legal custody with equal parenting time. No reference was made to religion in the custody order. At the time the petitions were filed, the child was not quite two years old and, as such, not of an age to allow him to have developed actual religious ties to a specific religion. Nor did the record reveal that the father’s religious beliefs violated a state statute or threatened the child’s well-being. As a result, Family Court improperly intervened in the parties’ religious dispute. For that reason the court’s directives to the parties that neither parent shall permit the child to attend religious services or instruction until an agreement between the parties is reached on this issue, to address the issue of religion while participating in court-ordered coparenting counseling, and that a failure to reach an agreement with regard to religion will, after completing the court-ordered number of co-parenting sessions, constitute a change in circumstances for purposes of modification, were issued in error and were vacated.
February 21, 2024
The proper course where a party fails to include the statement of net worth is to decline to hear the motion, or to deny it without prejudice to renewal upon compliance with the applicable requirements
In Perrone v Perrone, --- N.Y.S.3d ----, 2024 WL 629023 (Mem), 2024 N.Y. Slip Op. 00820 (1st Dept.,2024) the Appellate Division affirmed an order which directed the husband to pay $2,500 in monthly child support and awarded the plaintiff $5,000 in attorneys’ fees. It held, among other things, that contrary to the defendant’s contention, the plaintiff’s failure to include a completed statement of net worth with her motion was not fatal to the request for child support (see 22 NYCRR 202.16[k][2]). “The proper course where a party fails to include the statement of net worth ... is to decline to hear the motion, or to deny it without prejudice to renewal upon compliance with the applicable requirements” (see 22 NYCRR 202.16[k][5][ii]). Here, the order on appeal noted that plaintiff complied with a prior interim order directing that she submit a completed statement of net worth. Furthermore, since defendant failed to include both the interim order and plaintiff’s net worth statement in the record on appeal, the record was insufficient to permit appellate review of this issue (see Liddle, Robinson & Shoemaker v. Shoemaker, 309 A.D.2d 688, 693, 768 N.Y.S.2d 183 [1st Dept. 2003]). Similarly, since the wife’s net worth statement was not included in the appellate record, the Court could not consider defendant’s argument on appeal that the motion court should have imputed additional income to the wife.
February 14, 2024
Appellate Division, First Department
Where Court appointed Forensic Evaluator was removed Mental Health Professionals Panel during the Case Supreme Court should have granted plaintiff’s motion to remove him, deem his report inadmissible at trial, and for a refund of fees paid to him
In Chu v Chu, --- N.Y.S.3d ----, 2024 WL 462349, 2024 N.Y. Slip Op. 00610 (2d Dept.,2024) the Supreme Court, appointed Marc Abrams, a psychologist, to serve as a neutral forensic evaluator for the purpose of assisting the court in rendering custody and parental access determinations. At the time of his appointment, Abrams was a member of the Mental Health Professionals Panel for the Appellate Division, First and Second Judicial Departments. In the appointment order, the court directed Abrams, among other things, to interview the parties and the children and issue a report setting forth his findings by January 27, 2021. On August 12, 2021, Abrams issued his report. In December 2021, the plaintiff submitted a letter to this Court’s Office of Attorneys for Children, alleging that Abrams engaged in misconduct while performing his duties as a forensic evaluator in this action. In response, that office notified the plaintiff that, effective August 24, 2021, Abrams was no longer a member of the Mental Health Professionals Panel. In July 2022, the plaintiff moved, to remove Abrams as the court-appointed forensic evaluator, in effect, to deem Abrams’s report inadmissible at trial, for a refund of fees paid to Abrams. Supreme Court, inter alia, denied the plaintiff’s motion. The Appellate Division held that Supreme Court should have granted plaintiff’s motion to remove Abrams, to deem Abrams’s report inadmissible at trial, and for a refund of fees paid to Abrams. It observed that the Mental Health Professionals Panel was established to ensure that courts and parties have ‘access to qualified mental health professionals’ who are available to evaluate the parties and to assist courts in reaching appropriate decisions as to, inter alia, custody and [parental access]” (Carlin v. Carlin, 124 A.D.3d 817, 818, 3 N.Y.S.3d 71, quoting 22 NYCRR 623.1; see 22 NYCRR 680.1).The Committee is charged with determining who is qualified to serve as an impartial, court-appointed forensic evaluator, subject to approval of the Presiding Justices of this Court and the First Department. Abrams’s removal from the Mental Health Professionals Panel, resulting from a complaint made against him, therefore indicated that the Committee concluded that he was no longer “qualified to assist courts in reaching an appropriate decision as to custody and visitation”. Moreover, both the appointment order and the Supreme Court, Westchester County, Matrimonial Part Operational Rules permitted the Supreme Court to impose sanctions upon Abrams in the event that he failed to issue his report by the deadline set forth in the appointment order. Abrams issued his report more than six months after that deadline. By the time the Supreme Court issued its order denying the plaintiff’s motion and the report was nearly a year and a half old.
February 7, 2024
Appellate Division, First Department
As the parties’ marriage was solemnized by a rabbi with witnesses in a traditional Jewish ceremony, their failure to obtain a marriage license did not invalidate the marriage, even though they may not have intended to have their marriage legally recognized under New York law. Marriage is a special status governed by laws and the State and not determined by those entering the contract
In Spalter v Spalter, --- N.Y.S.3d ----, 2024 WL 367147, 2024 N.Y. Slip Op. 00465 (1st Dept.,2024) the Appellate Division affirmed an order which denied defendant’s motion to dismiss this divorce action and declared the parties’ marriage valid. The parties took part in a religious wedding ceremony officiated by a rabbi under a chuppah, with 29 guests and featuring traditional Jewish rites and blessings. They signed a ketubah [Jewish wedding contract] in the presence of two witnesses, a separate document that stated they were entering into a “marriage that is binding under Jewish law” but not “legally recognized” under New York law and an arbitration agreement referring to them as “husband-to-be” and “wife-to-be,” in which they authorized the Beth Din to preside over marital disputes. However, they never obtained a civil marriage license, and according to defendant, held themselves out as single, lived separate lives and only entered into the religious marriage to facilitate their children’s acceptance into day schools and the family into synagogues. At the time of the ceremony the parties had two children together, and now had four, three of which were children with special needs. The Appellate Division held that the motion court properly determined that the parties’ marriage is valid (see Domestic Relations Law §§ 10, 12, 25), as defendant failed to overcome New York’s “strong presumption favoring the validity of marriage. This strong presumption of the validity of marriage is even greater where, as here, the legitimacy of children is concerned. Domestic Relations Law § 12, provides, as relevant, that “[n]o particular form or ceremony is required when a marriage is solemnized as herein provided by a clergyman” if the parties “solemnly declare” in the “presence” of a clergyman and at least one other witness that “they take each other as spouses.” Although Domestic Relations Law § 13 requires all persons intending to be married in New York to obtain a marriage license, § 25 provides that “[n]othing in [Domestic Relations Law article 3] shall be construed to render void by reason of a failure to procure a marriage license any marriage solemnized between persons of full age”. As the parties’ marriage was solemnized by a rabbi with witnesses in a traditional Jewish ceremony, their failure to obtain a marriage license did not invalidate the marriage. That the parties may not have intended to have their marriage legally recognized under New York law is not dispositive because “while marriage is a contract between two consenting individuals, it is a special status governed by laws and the State and not determined by those entering the contract. Although Domestic Relations Law § 10 clearly requires that both parties consent to the marriage, that requirement was met here. The record shows that, while the parties signed a document that stated that their marriage was not “legally recognized” under New York law, the parties consented to the marriage, especially in light of their acknowledgment in that same document that they were “entering into a marriage that is binding under Jewish law.” Even though defendant claimed that plaintiff has listed herself as unmarried in her tax returns, this did not prevent her from arguing that the parties were married. The proposition that a party to litigation may not take a position contrary to a position taken in an income tax return (Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415 (2009)), does not apply to the question of marital status, which is a mixed question of law and fact.
Appellate Division, Fourth Department
In Termination of Parental Rights Proceeding mother was denied due process of law based upon the bias against her displayed by the Family Court Judge.
In Matter of Anthony J., --- N.Y.S.3d ----, 2024 WL 395259, 2024 N.Y. Slip Op. 00574
(4th Dept., 2024 the Appellate Division reversed an order which, terminated the mother’s parental rights pursuant to Social Services Law § 384-b. It agreed with the mother that she was denied due process of law based upon the bias against her displayed by the Family Court Judge. Although the mother’s contention was unpreserved for review because the mother did not make a motion for the Family Court Judge to recuse herself the Court exercised its power of review in the interests of justice. It observed that in New York, the fact-finding stage of a state-initiated permanent neglect proceeding bears many of the indicia of a criminal trial. The State must provide the parents with fundamentally fair procedures, including the right to a hearing before an impartial factfinder. The record demonstrated that Family Court had a predetermined outcome of the case in mind during the hearing. During a break in the hearing testimony, a discussion occurred on the record with regard to a voluntary surrender. When the mother changed her mind and stated that she would not give up her child, the court responded, “Then I’m going to do it.” At that point, the only evidence that had been presented was the direct testimony of one caseworker. The court’s comments, in addition to expressing a preconceived opinion of the case, amounted to a threat that, should the mother continue with the fact-finding hearing, the court would terminate her parental rights. Those comments were impermissibly coercive. That the court made good on its promise to terminate the mother’s parental rights could not be tolerated. Given the preconceived opinion expressed and the lack of impartiality exhibited by the Family Court Judge the matter was remitted to Family Court for a new hearing by a different judge.
January 31, 2024
Appellate Division, Second Department
To incarcerate a party for violation of a court order of protection, the Family Court must find beyond a reasonable doubt that he or she willfully failed to obey an order of the court. There is generally no right to a jury trial in violation proceedings.
In Matter of Angel P. H. (Anonymous).--- N.Y.S.3d ----, 2024 WL 253188, 2024 N.Y. Slip Op. 00308(2d Dept.,2024) ACS brought a petition, alleging that Angel P.Q. violated a temporary order of protection on several occasions. After Angel P.Q. consented to the entry of an order of fact-finding and disposition, the Family Court found that Angel P.Q. willfully violated the temporary order of protection and committed him to the custody of the New York City Department of Correction for a period of 10 months. The Appellate Division affirmed. It held that to incarcerate a party for violation of a court order, the Family Court must find beyond a reasonable doubt that he or she willfully failed to obey an order of the court. Knowingly failing to comply with a court order gives rise to an inference of willfulness. To establish that a party had knowledge of the order, the evidence must show that he or she was made aware, either orally or in writing, of the substance of the order and the conduct it prohibited. The record demonstrated that Angel P.Q. was aware of the substance of the temporary order of protection, and that his conduct, as alleged in the violation petition, was prohibited by that order. Angel P.Q. was present during the remote proceeding, with his attorney and a Spanish language interpreter, when the Family Court informed him that the court was issuing a stay-away order of protection in favor of the children and the mother, inter alia, providing for supervised visitation on a schedule, in a location, and for a duration known to the agency, with all visitation supervisors to be cleared and approved by the agency, and pick up and drop off to be accomplished by a third party. Notice of the conduct prohibited by an order of protection may be given orally. Angel P. Q., therefore, knew that the conduct that he was alleged to have committed in the violation petition would constitute violations of the temporary order of protection. Furthermore, Angel P.Q. failed to meet his burden “to overcome the presumption that the crime charged is petty and establish a Sixth Amendment right to a jury trial”. There is generally no right to a jury trial in violation proceedings because the maximum sentence for each willful violation is only six months (see Family Ct. Act §§ 846–a, 1072).
The court’s reasons for declining to award residential custody to the father were not necessarily inconsistent with its decision to award him more parental access but deny him residential custody
In Matter of Graffagnino v Esposito, --- N.Y.S.3d ----, 2024 WL 253208, 2024 N.Y. Slip Op. 00307 (2d Dept.,2024) the Appellate Division affirmed an order which awarded the father increased parental access, found that the mother violated the parties custody order dated January 6, 2016 but denied the fathers petition to modify the January 2016 custody order to award him residential custody of the child, and granted the mother’s petition to modify the January 2016 order to award her sole legal custody of the child. The Appellate Division found that the court’s conclusion was appropriately influenced by the child’s best interests, as opposed to constituting a punishment of the mother. In any event, the court’s decision to award the mother sole legal custody of the child, while maintaining the residential custody she previously enjoyed, indicated that its determination was not intended to simply punish the mother. Nor were the court’s reasons for declining to award residential custody to the father necessarily inconsistent with its decision to award him more parental access. The evidence at the hearing revealed that the mother interfered with the father’s relationship with and parental role in relation to the child, inter alia, by refusing to make up parental access that the father missed due to the child’s illnesses, enrolling the child in a school without consulting or even informing the father, and moving without first informing the father. The record also indicated that the mother may have disparaged the father to the child. The court therefore correctly concluded that the father’s parental access schedule as set forth in the January 2016 order was inadequate to further strengthen and reinforce the father-child bond. The court’s decision to award the father a more liberal parental access schedule was appropriate to foster the best interests of the child by permitting the continued development of a meaningful relationship between the father and the child.
Support Magistrate providently exercised her discretion to award mother counsel fees in child support proceeding based upon, inter alia, the father’s delay of the proceedings by failing to comply with a court-ordered disclosure and court instructions regarding the filing of petitions, which caused the mother to incur unnecessary legal costs
In Glass v Glass, --- N.Y.S.3d ----, 2024 WL 253212, 2024 N.Y. Slip Op. 00305 (2d Dept.,2024) the father filed a petition to modify the support provisions of the parties’ judgment of divorce. Thereafter, the mother moved for an award of counsel fees incurred in connection with the father’s modification petition and a separate petition that the father had filed, in which he sought an award of child support. The Support Magistrate awarded her counsel fees of $13,000. The Appellate Division affirmed. It held that in a child support proceeding pursuant to Family Court Act article 4, the court, in its discretion, may award counsel fees to the attorney representing the person claiming a right to support on behalf of the child. The factors to be considered in computing an appropriate award include the parties’ ability to pay, the merits of the parties’ positions, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of counsel’s performance and the fees under the circumstances. The Support Magistrate providently exercised her discretion based upon, inter alia, the father’s delay of the proceedings by failing to comply with a court-ordered disclosure and court instructions regarding the filing of petitions, which caused the mother to incur unnecessary legal costs.
Absent extraordinary circumstances, such as where parental access would be detrimental to the child’s well-being, a noncustodial parent has a right to reasonable parental access privileges
In Matter of Kim v Becker, --- N.Y.S.3d ----, 2024 WL 253174, 2024 N.Y. Slip Op. 00310 (2d Dept.,2024) the Appellate Division disagreed with the Family Court’s determination directing that the mother shall have parental access from Monday mornings until Wednesday evenings during the week and only one weekend per month. Absent extraordinary circumstances, such as where parental access would be detrimental to the child’s well-being, a noncustodial parent has a right to reasonable parental access privileges. It found that the parental access schedule awarding the mother parental access with the school-aged child only one weekend per month effectively deprived the mother of significant quality time with the child, especially where, as here, the evidence failed to demonstrate that alternate weekend overnight parental access with the mother would be harmful to the child or that the mother forfeited her right to parental access. Accordingly, it modified the mother’s parental access schedule.
Appellate Division, Third Department
In Neglect proceeding mother’s out-of-court statements to trooper were admissible under the excited utterance exception to the hearsay rule because they were made “under the stress and excitement of a startling event and were not the product of any reflection and possible fabrication”.
In Matter of Hazelee DD, 222 A.D.3d 1223 (3d Dept.,2024) a neglect proceeding, a state trooper testified at the hearing as to how he responded to a domestic incident call at approximately 11:30 p.m. on September 7, 2020, and found the mother of the children and the older child at their neighbor’s residence. The mother told him that the father was intoxicated and “had pushed her down and taken the” younger child during a dispute. She and the older child then fled their apartment to seek assistance. The trooper described the mother as “very excited and hysterical” throughout the time that they spoke because of her fears for the safety of the younger child, who was only three weeks old at that point and in the hands of the drunken father. Family Court accordingly determined, and the Appellate Division agreed that the mother’s out-of-court statements to the trooper were admissible under the excited utterance exception to the hearsay rule because they were made “under the stress and excitement of a startling event and [were] not the product of any reflection and possible fabrication”.
January 24, 2024
Appellate Division, Third Department
The Majauskas’ formula sets the commencement of the action as the date on which the marital property portion of a pension ceases to accrue, but this principle does not automatically create arrears when an opting-out agreement and Military Qualifying Order are later used to effectuate distribution of the benefits.
In Fernandez v Fernandez, 2024 WL 186650 (3d Dept.,2024) the Plaintiff wife) and defendant ( husband) were married for 39 years. The divorce action was commenced in December 2017 and the parties obtained a judgment of divorce in November 2019. They entered into an opting-out agreement in July 2019 that was incorporated but not merged into the judgment of divorce. The agreement provided, as relevant here, that the wife was entitled to her Majauskas share of the husband’s military pension, which was already in “pay status” at the commencement of the divorce action in 2017. Following the judgment of divorce, the wife retained counsel to prepare a military qualifying order ( MQO), which was signed by Supreme Court in July 2020. The wife began receiving benefits from the Defense Finance and Accounting Service in November 2020 after the MQO was administratively processed. In September 2021, the wife moved, by order to show cause, to hold the husband in contempt for failing to make payments of her Majauskas share of the husband’s pension payments from the period of the commencement of the divorce action in December 2017 until her payments began in November 2020. The wife further sought a payment of said amount plus interest and an award of counsel fees. The husband opposed, asserting, among other things, that the agreement did not provide for “retroactive” payments. Supreme Court granted the wife’s motion in part, determining that the wife’s agreed-upon share “cannot be reduced solely due to the fact that the [husband’s] pension was in pay status at the time of commencement and prior to the matter being resolved.” Supreme Court therefore determined that the parties’ reference to Majauskas in the agreement required that the wife’s share be calculated as of the date of commencement. The court awarded the wife a judgment for the retroactive arrears from the commencement date and counsel fees, but declined to find the husband in contempt. The Appellate Division held that a meeting of the minds occurred when the agreement was executed, binding the husband to pay the wife a 50% share of the pension from that day forward. Irrespective of the procedural hurdles necessary to effect the MQO, at the end of the day, this obligation was unambiguously undertaken by the husband. As such, it remitted the matter to Supreme Court for a calculation of the amount due to the wife and for the parties to discuss any relevant tax consequences.
The agreement provided in Article X, “[t]he husband is owner of a Defined Benefit Pension Plan through the United States Military, ... [t]he [w]ife shall be entitled to her Majauskas share of same ....” There was no dispute that, pursuant to the Majauskas formula (see Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699, 463 N.E.2d 15 [1984]), the wife was entitled to a 50% share of the husband’s pension. The only issue was on which date her entitlement to those benefits began. Majauskas does not address pension arrears and merely referencing the Majauskas formula in the agreement did not automatically trigger arrears from the time of commencement. More particularly, the Majauskas’ formula sets the commencement of the action as the date on which the marital property portion of a pension ceases to accrue, but this principle does not automatically create arrears when an opting out agreement and MQO are later used to effectuate distribution of the benefits. However, under this rubric, on the date the agreement was executed, July 19, 2019,2 the husband was unequivocally bound and clearly had bargained to equally share the pension payout stream with the wife from that day forward. The fact that the husband was in pay status underscored his understanding that his military pension payment would be reduced as a result of the agreement and supported the finding that the wife’s interest in the husband’s pension vested upon the execution of the agreement and any delay in submitting the MQO to effectuate this recognition did not vitiate this interest). Therefore, the wife’s entitlement to a portion of the husband’s monthly pension benefits was a right created under the agreement and Supreme Court’s order issuing the MQO merely recognized such right.
Although the parties and the child no longer resided in New York, the Family Court retained jurisdiction to enforce the Support Order
In Matter of Couch v Pyle, --- N.Y.S.3d ----, 2024 WL 172870, 2024 N.Y. Slip Op. 00190 (2d Dept.,2024) the mother and the father were the parents of one child, born in 1998. In October 2008, the mother commenced a proceeding in New York for child support pursuant to the Uniform Interstate Family Support Act. In an order dated May 5, 2009, the Family Court, inter alia, directed the father to pay child support of $474.80 biweekly. in September 2022, nearly three years after the date of emancipation, the father filed a petition, in effect, to retroactively terminate his child support obligation as of November 3, 2019. At the time of the commencement of the proceeding, neither the parties nor the child resided in New York. Following a hearing the Support Magistrate granted the father’s petition, in effect, to terminate his child support obligation as of November 3, 2019, and directed the father to pay child support arrears. The father filed objections to so much of the orders as directed him to pay child support arrears. The court denied the father’s objections. The Appellate Division affirmed. It held that although the parties and the child no longer resided in New York, the Family Court retained jurisdiction to enforce the 2009 order and direct the payment of arrears.
Where a trial judge calls her own witness, it must strictly avoid assuming the function or appearance of an advocate at trial.
In Matter of Jehrica K v Erin J, --- N.Y.S.3d ----, 2024 WL 186726, 2024 N.Y. Slip Op. 00218 (3d Dept.,2024) the Appellate Division affirmed an order which dismissed petitioner mother’s application, to modify a prior order of custody and visitation. The mother argued, among other things, that the trial judge exceeded her judicial role by calling as its own witness the DSS caseworker who investigated the circumstances attendant her infant child’s death and directly examining this witness herself. The Appellate Division held that where, as here, a trial judge calls her own witness, the same principles attendant a court’s assuming an active role in the truth-seeking process apply. In the unusual situation where a trial court does so, the court “should explain why, and invite comment from the parties”. Here, at the continuation of the fact-finding hearing Family Court simply announced that it was calling the senior caseworker out of order and inquired whether there were any objections. While the court’s protocol was improper, having failed to object, the mother’s argument was unpreserved. In any event, since all parties were able to review the Family Court Act § 1034 draft report and were given the opportunity to question this witness, the mother did not show reversible error as a matter of law. Even so, given the court’s decidedly active role with regard to this witness, it reminded the court that it must strictly avoid assuming “the function or appearance of an advocate at trial” (People v. Arnold, 98 N.Y.2d at 67, 745 N.Y.S.2d 782, 772 N.E.2d 1140; accord Matter of C.H. v. F.M., 130 A.D.3d 1028, 1029, 14 N.Y.S.3d 482 [2d Dept. 2015]).
Husband was not required to provide a net worth statement in conjunction with his counsel fee motion, where the parties’ stipulation of settlement did not require proof of the parties’ relative financial circumstances
In Parada v Herron, --- N.Y.S.3d ----, 2024 WL 187085, 2024 N.Y. Slip Op. 00235(1st Dept.,2024) the Appellate Division held, inter alia, that the court also properly exercised its discretion in assessing $25,000 in counsel fees against the wife on the contempt motion and an additional $5,000 in counsel fees against the wife on the reargument motion based on the parties stipulation of settlement, which allowed for reasonable counsel fees in the event one party defaulted on any of its provisions. The husband was not required to provide a net worth statement in conjunction with his fee motion, as the parties’ stipulation of settlement did not require proof of the parties’ relative financial circumstances (see Garcia v. Garcia, 104 A.D.3d 806, 807, 961 N.Y.S.2d 517 [2d Dept. 2013]; Rosner v. Rosner, 143 A.D.3d 884, 39 N.Y.S.3d 250 [2d Dept. 2016]).
January 17, 2024
Appellate Division, Third Department
A claim that a party lacks standing can be waived
In Matter of Dawn II., Natyssa JJ, --- N.Y.S.3d ----, 2024 WL 116993, 2024 N.Y. Slip Op. 00098 (3d Dept, 2024) Petitioner was the paternal grandmother of the child. In April 2021, the grandmother filed a petition for visitation with the child. Following a hearing, Family Court dismissed the petition. The Appellate Division noted that Family Court’s finding that the grandmother established statutory standing to seek visitation was not challenged and, therefore, was not before it for review. A claim that a party lacks standing can be waived (see Matter of Deborah Z. v. Alana AA., 185 A.D.3d 1174, 1176, 127 N.Y.S.3d 621 [3d Dept. 2020]; Matter of Leonard H., 278 A.D.2d 762, 763–764, 717 N.Y.S.2d 779 [3d Dept. 2000], lv denied 96 N.Y.2d 709, 725 N.Y.S.2d 639, 749 N.E.2d 208 [2001]).
Family Court
Family Court Act § 1017 is not applicable to every family who become the subjects of an Article 10 filing
In Matter of Danna --- N.Y.S.3d ----, 2024 WL 133860, 2024 N.Y. Slip Op. 24008 Fam Ct (2024).ACS allege that respondent Miguel T. neglected his child Danna, by perpetrating acts of domestic violence against Danna’s mother, Raquel C. At the first appearance on the petition, ACS asked for a temporary order releasing the child to Ms. C. with court ordered supervision and a temporary order of protection against Mr. T. Ms. C. was not being charged with any parental malfeasance and was a non-respondent in this proceeding. Her attorney argued the child should be in her care and that there should be an order of protection against the child’s father, but on behalf of the mother, He objected to court-ordered supervision over her. ACS conceded that before the filing of the petition, the child lived exclusively with Ms. C. Mr. T. lived elsewhere, and in fact, his whereabouts were presently unknown; Ms. C. was the child’s de facto sole custodian. She had other children in her care; the respondent was not charged with being a person legally responsible for them and they were not named on the petition. The Court observed that Family Court Act § 1017 provides a framework for the involvement of non-respondent parents — those who are not charged with maltreating their children — once state intervention has been properly initiated on allegations that the other parent did commit child abuse or neglect. It is this section that ACS typically cites, and on which Family Court daily relies, for orders requiring non-respondent parents to cooperate with ACS supervision. However, the court noted that as the facts of this case illustrate, Family Court Act § 1017 is not applicable to every family who become the subjects of an Article 10 filing. There is no sensible reading of § 1017 or § 1027 which could make the scenario the one at issue in this particular case — one in which the child has been “removed” from a parent. On January 5, 2024, the child Danna was living with her mother, when her father allegedly came to the mother’s home and violently assaulted her. On January 11, 2024, ACS filed a petition against Mr. T. ACS’s request, at the end of the first appearance, was for the child to continue living with her mother, in the same residence as always. This was not a removal from the non-respondent parent, and it was not a removal from the home. Nor was it a removal from the respondent parent. The child did not live with her father. The child was not being moved from one parent’s home to another. The child was not being deprived of the daily care of her father through an order of exclusion. At most, the child was experiencing a limitation on her visitation with her non-custodial parent, but visitation restrictions , made pursuant to § 1029 and/or § 1030, are not removals. Section 1017 is not applicable at all to cases such as this one. And therefore, the Court had no authority to require Ms. C. to submit to its jurisdiction, or even to “release” the child to her. The child had not been removed, so there was no cause to “release.” The status quo ante regarding custody and care remained in effect, limited only by an order of protection against Mr. T. In this case, the sole focus of the court, as limited by statute, was on the respondent and the child, not the non-respondent. The application for an order directing Ms. Caceras to cooperate with ACS supervision was denied.
January 10, 2024
Appellate Division, First Department
Court’s dismissal on forum non conveniens grounds (CPLR 327) was a provident exercise of its discretion although husband, commenced a divorce action in Brazil after this action was filed, where both parties were Brazilian Citizens.
In Teixeira v Teixeira, --- N.Y.S.3d ----, 2024 WL 39730, 2024 N.Y. Slip Op. 00040 (1st Dept, 2024) the Appellate Division affirmed an order which granted defendant husband’s motion to dismiss this divorce action on forum non conveniens grounds. It held that the court’s dismissal on forum non conveniens grounds (CPLR 327) was a provident exercise of its discretion. The parties were Brazilian citizens who were married in Brazil. The one child of the marriage is emancipated. Upon defendant husband’s relocation by his employer, the parties lived here as a married couple for less than four years of their over 20–year marriage (as measured to the date of commencement of this action), their child left for college soon after the parties and she moved here, and the husband, whose work in international finance takes him around the world, has not worked or lived here since 2021. Moreover, throughout the marriage the parties maintained significant assets in Brazil, including a home, a real estate parcel, a stake in a real estate development company, a car, and several bank and other accounts. The husband, who commenced a divorce action in Brazil after this action was filed, submitted the affidavit of his Brazilian attorney attesting that, pursuant to Brazilian law, Brazilian courts have exclusive jurisdiction over the distribution of those assets. The attorney further attested that, even were the New York court to issue a divorce judgment, the Brazilian property distribution issues would nevertheless have to be litigated in Brazil. While the wife lived here continuously since 2017, and she and the husband were both living here at the time she commenced this action, CPLR 327 itself states this fact is not determinative (“[t]he domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action”). She also did not adequately explain signing documents in Brazilian probate proceedings in 2019 stating that she is a Brazilian domiciliary. The foregoing factors amply supported the court’s finding that substantial justice warrants that this action be heard before a Brazilian tribunal. Moreover, She did not show the “first in time” rule applies, such that her having filed here before he filed in Brazil would dictate that New York is the most convenient forum.
Appellate Division, Fourth Department
Where father failed to seek a reconstruction hearing with respect to the missing transcripts in the record his contention that he was denied adequate appellate review was not properly before the Court as it was raised for the first time on appeal.
In Matter of Ariona P. --- N.Y.S.3d ----, 221 A.D.3d 1520, 2023 WL 7983212, 2023 N.Y. Slip Op. 05862 (4th Dept., 2023) a neglect proceeding the father contended that he has been denied adequate appellate review because the transcript of the testimony of several of petitioner’s witnesses was missing due to the apparent failure to record the proceedings of that day. The father failed to seek a reconstruction hearing with respect to the missing parts of the record (see Matter of Mikel B. [Carlos B.], 115 A.D.3d 1348, 1348, 984 N.Y.S.2d 253 [4th Dept. 2014]). Thus, the father’s contention was not properly before the Court as it was raised for the first time on appeal. In any event, it concluded the “the record as submitted is sufficient for this Court to determine” the issues raised on appeal (Matter of Stephen B. [appeal No. 2], 195 A.D.2d 1065, 1065, 601 N.Y.S.2d 897 [4th Dept. 1993]).
January 3, 2024
Appellate Division, First Department
A court has broad discretion in controlling its trial calendar, so long as it is exercised in a judicious manner. While courts may afford a pro se litigant some latitude, a pro se litigant acquires no greater right than any other litigant and is held to the same standards of proof as those who are represented by counsel.
In Bloom v Hilpert, --- N.Y.S.3d ----, 2023 WL 8939118, 2023 N.Y. Slip Op. 06798 (1st Dept.,2023) the Appellate Division affirmed the judgment of divorce insofar as appealed from as limited by the briefs, setting child support at $5,558.42 monthly to be paid to the wife by defendant husband through the support collection unit, based on the apportionment of the parties’ respective incomes at 52% to the husband and 48% to the wife; ordered entry of a money judgment against the husband for retroactive support of $341,650.66 plus statutory interest; awarded the wife exclusive occupancy of the parties’ home in East Hampton until the younger child reaches the age of 18 or sale of the home, with the wife to bear the carrying charges, and provided for the distribution of the proceeds upon sale; ordered that 16 Judge Street, Brooklyn, be placed in a receiver’s control and sold, with provision for distribution of the proceeds to the husband, wife, and the husband’s irrevocable trust for the children’s benefit; and awarded the wife counsel fees in the amount of $80,579.84. It held that the husband was not deprived of his right to a fair trial. A court has broad discretion in controlling its trial calendar, so long as it is exercised in a judicious manner. Under the circumstances, after 33 days of trial, and numerous delays, verbal outbursts and threats by the husband, the court’s determination that it would only allow three more trial days was not an improvident exercise of its discretion. Moreover, the court advised the husband of this over a month before the next trial date, providing him with ample opportunity to prepare for the remainder of the trial. Although the husband complained he had trouble getting his documents into evidence, he elected to be unrepresented by counsel. While courts may afford a pro se litigant some latitude, a pro se litigant “acquires no greater right than any other litigant” and is “held to the same standards of proof as those who are represented by counsel”.
Appellate Division, Third Department
The Support Magistrate properly declined to impute income to the mother based on the income of her husband because such imputation would simply impose a penalty upon the mother’s husband, who owes his stepchildren no duty of support.
In Matter of Treglia v Varano, --- N.Y.S.3d ----, 2023 WL 8938897, 2023 N.Y. Slip Op. 06783 (3d Dept.,2023) the Appellate Division held that the Support Magistrate erred in finding that the father was the custodial parent (for purposes of child support) based upon having more parenting time with the children as the relevant evidence demonstrated that the parties shared parenting time on an approximate 50/50 basis. The party that has the greater income is the noncustodial parent. Given that the Support Magistrate, after the hearing, determined that the mother’s adjusted gross income was lower than that of the father, the father was the noncustodial parent and was responsible for paying child support to the mother. Therefore, Family Court erred in denying the mother’s objections. It rejected the fathers argument that Family Court erred in denying his objections because it was error for the Support Magistrate not to impute income to the mother. The mother testified that she operates her own business and is a “contracted nonemployee through Allstate.” The mother also testified that in order to pay her payroll costs she has borrowed, and is expected to repay, sums of money in excess of $10,000 each year since 2018 from her now-husband. The mother’s husband confirmed that these were loans he expects her to pay back. Similarly, the mother testified that she signed a promissory note stating she would make payments to her husband regarding a car that was purchased, but she has not made any of those payments. According to the mother, she does pay some personal expenses through her business account but tells her accountant that those payments are income for tax return purposes. While the testimony at the hearing revealed that the mother’s husband earned in excess of $2 million annually, the testimony also established that although the mother lived in her husband’s house, she was not listed on the deed to the property. She was not listed on her husband’s bank accounts. The mother’s husband testified to helping pay for some expenses for the children here and there, but the mother 2qwthe one bearing the brunt of those expenses. The Support Magistrate declined to impute income to the mother based on the income of her husband because such imputation would “simply impose a penalty upon [the mother’s husband], who owes his stepchildren no duty of support.” The Support Magistrate also found that the mother was not underemployed. The Support Magistrate’s credibility determinations were supported by the evidence, and the Support Magistrate has broad discretion on whether to impute income, Family Court did not err when it denied the father’s objections.
Extraordinary circumstances is the principle applied to overcome the parental preference that a parent has a superior right to raise his or her child over that of a nonparent. The focus is on the parent, not the nonparent, and it is immaterial that the nonparent was not involved in the earlier proceedings
In Matter of Evelyn EE., v. Jody CC., --- N.Y.S.3d ----, 2023 WL 8938872, 2023 N.Y. Slip Op. 06782 (3d Dept.,2023) the Appellate Division affirmed an order of the Family Court which dismissed the mother’s custody petitions and entered an order, granting sole legal and primary physical custody of the oldest child and the youngest child to the niece, sole legal and primary physical custody of the middle child to the friend and reducing the mother’s supervised parenting time to 1½ hours per month and once a month telephone contact with the children/child in each household, with the call lasting not more than 15 minutes. It rejected the mothers argument that Family Court should not have relied on the prior judicial determinations of extraordinary circumstances because the niece was not a party in the prior proceedings. Extraordinary circumstances is the principle applied to overcome the parental preference that a parent has a superior right to raise his or her child over that of a nonparent. The focus is on the parent, not the nonparent, and it is immaterial that the niece was not involved in the earlier proceedings. Thus, given that the mother’s preferred status as the birth parent has already been lost by a 2013 Family Court determination of extraordinary circumstances as to the oldest child and a 2015 Family Court determination as to the middle child and the youngest child, the niece and the friend were not required to prove the existence of extraordinary circumstances.
When presented with an ambiguous contract, the court should resort to extrinsic evidence to attempt to ascertain the parties’ intent. Here, upon finding that the language of the prenuptial agreement was ambiguous, Supreme Court invalidated the agreement. In doing so, the court erred, as striking down a contract as indefinite and in essence meaningless is, at best, a last resort
In Gaudette v Gaudette, --- N.Y.S.3d ----, 2023 WL 8939125, 2023 N.Y. Slip Op. 06786 (3d Dept.,2023) the plaintiff (wife) and defendant (husband) entered into a prenuptial agreement in May 1977 in anticipation of their wedding, which took place in June 1977 in Quebec, Canada. The wife filed for divorce in October 2020, and the husband thereafter filed a motion seeking to enforce the prenuptial agreement and seeking division of the parties’ assets in accordance with its terms. Supreme Court found that the material terms of the prenuptial agreement were vague and undefined, rendering the agreement void; as such, the court denied the husband’s motion. The parties proceeded to a bench trial in December 2022, where they stipulated to the value of most of the parties’ property and accounts, as well as to the division of the same. At trial, the husband continued to seek division of certain disputed property in accordance with the prenuptial agreement – despite the court’s earlier finding that said agreement was void – while the wife sought to have those assets divided equally. The husband appealed from, inter alia, the judgment of divorce. The Appellate Division modified, on the law, without costs, by reversing so much thereof as denied defendant’s motion to enforce the prenuptial agreement and as determined equitable distribution and remitted to the Supreme Court for further proceedings not inconsistent with this Court’s decision. It observed that to form a binding contract, there must be a meeting of the minds, so that there is a manifestation of mutual assent that is sufficiently definite to assure that the parties are truly in agreement with respect to all material terms”. “Ambiguity in a contract arises when the contract, read as a whole, fails to disclose its purpose and the parties’ intent, or where its terms are subject to more than one reasonable interpretation” . When presented with an ambiguous contract, the court should resort to extrinsic evidence – which may require an evidentiary hearing – to attempt to ascertain the parties’ intent. Here, upon finding that the language of the prenuptial agreement was ambiguous, Supreme Court skipped these steps and invalidated the agreement. In doing so, the court erred, as “[s]triking down a contract as indefinite and in essence meaningless is[,] at best[,] a last resort. It undertook this analysis first considering whether the parties’ intent could be gleaned from the four corners of the prenuptial agreement, giving its language and provisions “their plain and ordinary meaning”.It found that the agreement was ambiguous and extrinsic evidence was required to ascertain the parties’ intent. It next considered whether the extrinsic evidence proffered by the parties resolved these ambiguities. It held that because the parties’ submissions were insufficient to resolve the ambiguities in the prenuptial agreement, Supreme Court should have held an evidentiary hearing to allow the parties to submit further extrinsic evidence to aid the court in its attempt to resolve the ambiguities and, if possible, to ascertain the parties’ intent with regard to the prenuptial agreement.
December 27, 2023
Appellate Division, First Department
Improvident exercise of discretion to preclude the parties from bringing romantic partners to the marital residences where no evidence that the presence of the husband’s romantic partner in any way impacted plaintiff wife’s safety
In Allen v Allen, --- N.Y.S.3d ----, 2023 WL 8814833 (Mem), 2023 N.Y. Slip Op. 06588 (1st Dept.,2023) the Appellate Division held that under the circumstances presented, the court did not run afoul of the Constitution by ordering the husband to maintain the 20–year status quo and not de-Kosher the parties’ homes during the pendency of the action. Contrary to his argument, the husband was not being impermissibly required to practice a particular religion or adhere to a particular religion in the home or being precluded from expressing himself and living freely.
However, it was an improvident exercise of the court’s discretion to preclude the parties from bringing romantic partners to the marital residences. While under Domestic Relations Law § 234, the court has some discretion to make orders regarding possession of property under the circumstances of each case, nothing in the record demonstrates that the presence of the husband’s romantic partner at one of the marital residences in any way impacted plaintiff wife’s safety. A party going through a divorce has “a right to develop his or her interests or personal life” (Rosenberg v. Rosenberg, 126 A.D.2d 537, 540–541, 510 N.Y.S.2d 659 [2d Dept. 1987]). At most, the interactions with the romantic partner, which by all accounts were civil, made the wife uncomfortable, and discomfort is an insufficient basis to exclude an otherwise non-problem-causing party, particularly where children are not involved.
Appellate Division, Second Department
In determining an appropriate award of counsel fees under Family Ct Act § 438 ultimately, the award should be based upon the totality of the circumstances, including the equities and circumstances of each particular case.
In Matter of Bonanno v Bonnano, --- N.Y.S.3d ----, 2023 WL 8792426, 2023 N.Y. Slip Op. 06523 (2d Dept.,2023) the father filed a petition for a downward modification of his child support obligation, contending that his income had decreased. Before the hearing concluded, the mother moved, inter alia, for an award of counsel fees. After the hearing, the Support Magistrate dismissed the father’s petition and directed the entry of a money judgment against the father in the sum of $9,160 for counsel fees. The Appellate Division affirmed. It held that a court may allow counsel fees at any stage of a proceeding under Family Court Act article 4 (Matter of Sanchez v. Reyes, 174 A.D.3d 907, 908, 103 N.Y.S.3d 290, citing Family Ct Act § 438). In determining an appropriate award of counsel fees, the court must consider factors such as the parties’ ability to pay, the merits of the parties’ positions, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of counsel’s performance and the fees under the circumstances. Ultimately, the award should be based upon the totality of the circumstances, including the equities and circumstances of each particular case” (Matter of Roberts v. Roberts, 176 A.D.3d 1226, 1228, 113 N.Y.S.3d 244. Under the totality of circumstances, the Support Magistrate providently exercised his discretion.
Appellate Division, Third Department
Supreme Court did not err when it used one method to impute income to the husband and a different method to impute income to the wife, as the parties had vastly different employment and income histories.
In Breen v Breen, --- N.Y.S.3d ----, 2023 WL 8814143, 2023 N.Y. Slip Op. 06566 (3d Dept., 2023) Plaintiff (husband) and defendant ( wife) were married in 1984 and had two adult children. The husband left the marital residence around March 2017, and he commenced the matrimonial action thereafter.
The Appellate Division rejected the husband’s contention that Supreme Court erred when it used one method to impute income to him and a different method to impute income to the wife, as the parties had vastly different employment and income histories. By the conclusion of the trial, both parties were unemployed. In deciding to impute the wife’s income at $15,000 based upon her most recent tax return, the court considered that the wife had been a homemaker since the birth of the parties’ oldest child in 1991, that her teaching certification had long lapsed and that she had only held part-time jobs outside the home on a sporadic basis, and it found no abuse of discretion in such decision). As to the husband, the record is sparse regarding his income from 1987 until 2014, during which time he engaged in the private practice of law and worked as a village attorney and a village justice. In 2014, the husband accepted a position with a state agency, initially earning an annual salary of $90,000, and climbing to $106,503 by his departure in June 2019. At that time, the husband accepted a position with a different state entity earning an annual salary of $150,000. He was terminated for cause from that position during the pendency of the trial. Despite a showing of such earning capacity, the court noted the husband’s retirement age and declined to impute that income to him. Rather, the court properly exercised its discretion in using New York State Department of Labor statistics to impute $99,281, the median wage for an attorney in the Capital Region, as income to the husband.
The husband also argued that Supreme Court erred in determining the duration of his spousal maintenance obligations and in failing to give him a tax impact credit. According to the guidelines, for a marriage lasting over 20 years, the duration of any spousal maintenance payments ordered should be between 35% and 50% of the length of the marriage (see Domestic Relations Law § 236[B][6][f][1]). Ultimately, the sum and duration of spousal maintenance is left to the sound discretion of the trial court and will not be disturbed so long as the court considered, among other things, the age and health of the parties, their respective earning capacities and their predivorce standards of living. The court expressly deviated downward from the guidelines – which suggested that the duration of maintenance for this 34–year marriage should be between 11.9 and 17 years – due to, among other reasons, the parties’ ages, their limited future earning potentials and the tax impact of the federal Tax Cuts and Jobs Act of 2017. The court considered the appropriate factors (see Domestic Relations Law § 236[B][6][e][1][a-o]), and it did not find the decision to direct the husband to pay the wife spousal maintenance for 10 years to be an abuse of discretion.
As to the equitable distribution award, Supreme Court “has substantial discretion to fashion such awards based on the circumstances of each case, and the determination will not be disturbed absent an abuse of discretion or failure to consider the requisite statutory factors”. Although the court need not specifically cite the statutory factors, its factual findings should adequately reflect its consideration of the factors outlined in Domestic Relations Law former § 236(B)(5)(d) (1–15). Although the husband took issue with the distribution of certain personal property located in the parties’ residences, the record was devoid of any proof as to the value of such property and that the court had wide discretion in determining its distribution. In light of the court’s consideration of the appropriate factors, and given the substantial discretion involved in determining the manner in which to divide marital assets, it found no abuse of discretion upon which to disturb this equitable distribution award.
It was error for Supreme Court to deny the husband relief with respect to the custodial provisions of the judgment of divorce because the husband’s counsel failed to provide the court with a physical copy of the judgment where the court had ample authority to take judicial notice of its own prior judgment, and sine the e-filed judgment was readily available on NYSCEF the husband was not required by CPLR 2214 to furnish the judgment in support of his motion.
In Carla T v Brian T, --- N.Y.S.3d ----, 2023 WL 8814151, 2023 N.Y. Slip Op. 06572 (3d Dept.,2023) in January 2022, the husband moved, by order to show cause, for Supreme Court to enforce a November 2021 stipulation. A few days later, the husband moved, by notice of motion, for Supreme Court to vacate the custodial provisions of the September 2020 and November 2021 stipulations and the judgment of divorce. The parties later settled the enforcement issue. Following oral argument, the court denied the remainder of the relief requested by the husband, largely on procedural grounds. He appealed. The Appellate Division found, in view of the husband’s proffer, it was an abuse of discretion to decline to either excuse the various procedural missteps or permit correction of the errors. First, the court reasoned that it was without jurisdiction to vacate the October 2020 order, as that order had been issued by Family Court. Although a motion to vacate must be addressed to “[t]he court which rendered [the] judgment or order” (CPLR 5015[a]), the husband’s mistake in choice of court would have been readily curable by simple removal procedure (see CPLR 325[a]). Given that the judge had presided over the prior Family Court matters, it would have been wholly appropriate to treat the husband’s notice of motion in Supreme Court as a motion to sever and transfer issues pertaining to the October 2020 order to the correct court, or to otherwise afford the husband the opportunity to move for such relief. Supreme Court separately denied that branch of the husband’s motion that sought to vacate the custodial provisions of the September 2020 and November 2021 stipulations upon well-established law that the proper vehicle to vacate a stipulation incorporated but not merged into an order or judgment is by commencement of a plenary action. However, the court similarly had discretion to disregard that mistake or permit it to be corrected (see CPLR 2001.)Again, in light of the surrounding circumstances, it fouond that declining to do so in the face of the husband’s proffer was improvident. Finally, Supreme Court denied any relief sought with respect to the custodial provisions of the judgment of divorce because the husband’s counsel failed to provide the court with a physical copy of the judgment. Initially, the court had ample authority to take judicial notice of its own prior judgment. Further, as the court noted in its order, the e-filed judgment is readily available on NYSCEF. Thus, the husband was not required by CPLR 2214 to furnish the judgment in support of his motion (see CPLR 2214[c]; and the court did not invoke any rule obligating otherwise. In this respect, the court elevated form over substance.
Where the custody order provided for additional parenting time as the parties could agree, and indicated that the parties’ consent was not to be “unreasonably withheld,” the allegations including that the mother had unreasonably refused to allow the father additional parenting time on over 20 occasions, deprived him of his own parenting time, interfered with his relationship with the children and failed to communicate with him on co-parenting issues were sufficient to warrant a modification hearing .
In Matter of Matthew TT., v. Erin TT., --- N.Y.S.3d ----, 2023 WL 8824854, 2023 N.Y. Slip Op. 06577(3d Dept.,2023) in his modification petition, the father made several allegations of changes in circumstances since entry of the judgment of divorce, including that the mother had unreasonably refused to allow the father additional parenting time on over 20 occasions, deprived him of his own parenting time, interfered with his relationship with the children and failed to communicate with him on co-parenting issues. The Appellate Division held that these factual allegations were sufficient to warrant a hearing as to whether there had been a change in circumstances requiring an inquiry as to the children’s best interests. With particular respect to the allegation that the mother failed to provide the father with additional parenting time, Family Court relied upon the decision in Matter of Thomas KK. v. Anne JJ., 176 A.D.3d 1354, 112 N.Y.S.3d 789 [3d Dept. 2019] for the proposition that one party’s refusal to provide additional parenting time does not constitute a change in circumstances where that party has not previously agreed to any such additional time. However, in that case, the custody order at issue merely provided for “such other and further visitation as the parties can agree”. By contrast, the custody order in this case not only provided for additional parenting time as the parties could agree, but also indicated that the parties’ consent was not to be “unreasonably withheld.” Thus, unlike in Matter of Thomas KK., there was a component present here – i.e., whether the mother’s refusal to consent to additional parenting time was reasonable – that should be explored at a hearing.
Appellate Division, Fourth Department
In egregious cases which shock the conscience of the court, the court may consider one party’s fault in fashioning a distribution award. Given the evidence that the husband secreted marital funds and disregarded court orders to preserve marital assets, the court’s determination to award the wife 100% of the known marital assets should not be disturbed.
In Mohamad v Abuhamra, --- N.Y.S.3d ----, 2023 WL 8865579, 2023 N.Y. Slip Op. 06614(4th Dept.,2023) the husband’s counsel conceded at oral argument, the husband violated orders restraining him from transferring assets or accessing various safety deposit boxes, rendering it difficult to accurately discern the value of those marital assets. He also transferred ownership of his various businesses to his brother and a long-term employee/friend. Although some of those transfers occurred before the divorce action was filed, the husband made those transfers when he was facing a lengthy prison sentence. Even from prison, the husband maintained control of his businesses. Upon his release from prison, the husband continued that control. By the time this divorce action was commenced, the husband had conducted numerous transactions to make it appear as if he had no assets, attempting to establish that his multi-million dollar businesses were no longer his and that he was earning only around $12,500 a year.
The Appellate Division held that the court did not err in imputing income to the husband. Given the husband’s conduct, the determination of his exact income was impossible, and the last concrete measure of his income was set forth on his 2008 tax return. Under the circumstances of this case, the court properly used that last known measure of income, and the court’s determination to impute that income to the husband was appropriate. Inasmuch as the court articulated the basis for its determination and the record evidence supported that determination, this Court did not disturb the court’s determination.
The Appellate Division rejected the husband’s argument that he was entitled to credit for temporary maintenance and household expenses. The money that was paid for those expenses came from joint marital funds placed in an escrow account as opposed to voluntary individual payments made “toward ‘the other party’s share’ ” of expenses.
The Appellate Division rejected the husbands contention that the court erred in awarding the wife 100% of a second escrow account as equitable distribution. In determining the equitable distribution. In “egregious cases which shock the conscience of the court”, the court may consider one party’s fault in fashioning a distribution award (see Blickstein v Blickstein, 99 AD2d 287, 292 [2d Dept 1984],). This is one such egregious case. Based on its credibility determinations, the court wrote in its decision and order that, “[i]n response to this divorce action being filed, [the] husband hid bank accounts, transferred funds and emptied safe deposit boxes. [The husband] schemed with his brother and a friend to under report [the] husband’s financial status and income.” It concluded that “[t]he marital misconduct [was] ‘so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship’. Moreover, the husband made it impossible for the court to determine the value of his businesses as well as the true amount of marital assets. Given the evidence that the husband secreted marital funds and disregarded court orders to preserve marital assets, the court’s determination to award the wife 100% of the known marital assets should not be disturbed.
The Appellate Division agreed with the husband that the court erred in awarding attorneys’ fees to the wife’s counsel, i.e., Legal Aid. It held that the court lacked authority to award attorneys’ fees to Legal Aid inasmuch as the wife did not pay for any legal services aside from the $45 retainer fee and did not owe any additional fees to Legal Aid. Domestic Relations Law § 237 (a) limits awards of attorneys’ fees to the amounts “paid and still owing” to the attorneys. Here, it was undisputed that the wife did not pay or owe Legal Aid anything beyond the $45 retainer fee. The wife’s retainer agreement specifically provided that, although Legal Aid reserved the right “[t]o seek and retain attorney fees and statutory costs from the opposing party,” the wife was never actually obligated to pay those amounts. Instead, the wife’s agreement with Legal Aid stated that the wife had the right “[t]o receive legal services without paying for a lawyer.” Inasmuch as recovery is limited to amounts actually paid or owing to an attorney, the fact that the wife was never obligated to pay Legal Aid anything beyond the $45 retainer fee made it improper for the court to have awarded Legal Aid attorneys’ fees. Where, as here, one party is not obligated to pay the attorneys’ fees, an award to the attorney does nothing to fulfill the ultimate goal of the statute, which is “to redress the economic disparity between the monied spouse and the non-monied spouse.”
The parties separation and settlement agreement was properly set aside where the terms of the agreement would “shock the conscience and confound the judgment of any [person] of common sense”, in light of the husband’s significant annual earnings and the fact that the wife was not employed; and the court properly concluded, on the basis of the husband’s “threats of losing custody, the children learning of the [w]ife’s indiscretions, [and] the publication of private, personal communications and pictures [sent by] the [w]ife to a male friend[,] together with threats of likely criminal prosecution,” that his conduct deprived the wife of the exercise of her free will.
In Amoia v Amoia, --- N.Y.S.3d ----, 2023 WL 8865592, 2023 N.Y. Slip Op. 06632 (4th Dept.,2023) an action seeking to set aside a separation and settlement agreement (agreement). the Appellate Division affirmed an order which determined that the separation and settlement agreement of the parties was void and not enforceable. The parties were married in 2007 and have three children. Unbeknownst to the wife, the husband met with an attorney in late March 2020 and had the agreement drafted after learning of the wife’s extramarital affair. On the morning of April 7, 2020, the husband’s mother came to the marital home and picked up the children. Shortly thereafter, the husband’s brother arrived at the marital home. The husband then presented the agreement for the wife to sign while the brother recorded the meeting on a laptop computer. The resulting video shows that the husband told the wife she had two options: in sum, the plan A option was to sign the agreement as is, that day, and the plan B option was to go to “war,” with the husband filing for divorce. He told her that upon signing the agreement, she had to vacate the marital home because “[she could not] afford this house,” and she would be supervised while packing her possessions. For just 20 minutes, the husband went over the agreement with the wife. Although he told her that she could have an attorney review it, he added, “[i]t doesn’t matter, because I am not changing anything.” He represented that the agreement was “equitable and how the courts will approve it.” He explained that they would have joint custody of the children, but for holidays he had “the first choice.” He represented that for child support, he was giving her “more than [he was] supposed to give [her].” He told her that he would not pay her “anything specifically for the [marital home]” because of the “extra money” he was giving her for maintenance. When the wife expressed confusion and asked, “[a]limony is not required?,” the husband responded, “[i]t’s not required in our circumstances, no.” The video shows that the wife, upon the husband’s insistence, then flipped through pages in the plan B folder that corresponded to the husband’s “war” option, which contained text messages and pictures sent between the wife and her paramour. The husband represented that in a contested divorce, “you have to prove there’s a fault,” and that the wife was at fault because of her extramarital relationship. The husband stated that he would pursue “full custody” of the children and that a contested divorce would be more stressful for the wife and the children. He added that “everything” would become public information, including the contents of the plan B folder, i.e., the wife’s affair and all its details. He told the wife that knowing all the details would “mess ... up” the children, but “[t]hat’s the risk that [she] took.” He falsely claimed that the wife could go to jail as a result of her conduct with her paramour. The wife signed the agreement, stating upon the husband’s prompting that she was not under duress in doing so. The husband arranged for a notary public to be present at the house and sign the agreement, and with the notary’s departure the video ends.
The Appellate Division concluded that the agreement was properly set aside on the grounds of both unconscionability and duress. Here, the husband presented the agreement, prepared by his attorney, to the wife for signing. Under the agreement, the wife would receive approximately $38,000 annually in child support and $22,000 annually in spousal support with no interest in the marital residence and its furnishings, no interest in the marital share of a business and real property, and no interest in a stock account worth approximately $178,000. Although it is not a dispositive factor, Supreme Court properly considered that the wife was not represented by counsel when the agreement was signed (see Campbell, 208 AD3d at 1052). The court properly determined that the terms of the agreement would “shock the conscience and confound the judgment of any [person] of common sense”, in light of the husband’s significant annual earnings and the fact that the wife was not employed.
The Appellate Division noted that an agreement “is voidable on the ground of duress when it is established that the party making the claim was forced to agree to it by means of a wrongful threat precluding the exercise of [that party’s] free will.” The video showed that the husband did most of the talking, with the wife saying very little. The wife often appeared surprised, distraught, and emotional. The court properly concluded, on the basis of the husband’s “threats of losing custody, the children learning of the [w]ife’s indiscretions, [and] the publication of private, personal communications and pictures [sent by] the [w]ife to a male friend[,] together with threats of likely criminal prosecution,” that his conduct deprived the wife of the exercise of her free will.
Supreme Court did not err in finding that certain terms of the agreement were unconscionable and the product of overreaching. Nonetheless, because the separation agreement contained a severability clause, not every part of the agreement was necessarily unenforceable, and the court erred in granting that the cross-motion to set aside the entire separation agreement without first holding a hearing on the issue of severability.
In Sleiman v Sleiman, --- N.Y.S.3d ----, 2023 WL 8864695, 2023 N.Y. Slip Op. 06609 (4th Dept.,2023) Plaintiff commenced an action for divorce and alleged that, pursuant to Domestic Relations Law § 170 (6), the parties had been living separately pursuant to a property settlement and separation agreement (separation agreement) filed almost two years earlier. Plaintiff moved for summary judgment, seeking, inter alia, enforcement of the separation agreement and defendant cross-moved for an order that would find certain provisions of the separation agreement to be unconscionable and the product of fraud, duress, coercion and plaintiff’s lack of financial disclosure, and would set aside the entire separation agreement on that basis. Supreme Court, granted defendant’s cross-motion to set aside the separation agreement on the ground that the entire agreement was unconscionable. In its written decision, the court determined that there were questions of fact on issues of fraud, duress, coercion, overreaching, and plaintiff’s lack of financial disclosure, but that no hearing with respect to those issues was necessary in light of its determination that the entire separation agreement was unconscionable. The Appellate Division observed that at the time the parties entered into the separation agreement, plaintiff, the monied spouse, was represented by counsel but defendant was not. While that factor alone is not dispositive, “it is a significant factor for us to consider” . Another factor to consider is that neither the separation agreement nor pretrial discovery included full disclosure of plaintiff’s finances. The value of plaintiff’s business was not evaluated in the separation agreement or during pretrial discovery, yet the agreement required that defendant relinquish her equitable share in almost all of the marital property, including any interest in plaintiff’s business. The separation agreement did not provide defendant with any child support for the parties’ two minor children, did not provide maintenance for defendant, and recited that, if defendant was to become engaged or remarry, plaintiff would automatically obtain full custody of the parties’ children. Considering those terms as examples of the tenor of the separation agreement, the court did not err in finding that certain terms of the agreement were unconscionable and are the product of overreaching by plaintiff. Nonetheless, it agreed with plaintiff that, because the separation agreement contains a severability clause, not every part of the separation agreement is necessarily unenforceable, and the court erred in granting that part of the cross-motion seeking to set aside the entire separation agreement without first holding a hearing on the issue of severability. “[W]hether the provisions of a contract are severable depends largely upon the intent of the parties as reflected in the language they employ and the particular circumstantial milieu in which the agreement came into being” (Matter of Wilson, 50 N.Y.2d 59, 65,1980]; see Christian, 42 N.Y.2d at 73). Therefore, it modified the order by denying the cross-motion to the extent that it sought to invalidate the entire separation agreement, remitted remit the matter to Supreme Court for a hearing with respect to the applicability of the severability clause, as well as the triable issues of fact whether fraud, duress, coercion, overreaching, and plaintiff’s lack of financial disclosure render the entire separation agreement unenforceable.
A criminal conviction may be given collateral estoppel effect in a Family Court Neglect proceeding if the petitioner establishes the existence of the criminal conviction and proves a factual nexus between the conviction and the allegations made in the neglect petition.
In Matter of Clarissa F, --- N.Y.S.3d ----, 2023 WL 8866115, 2023 N.Y. Slip Op. 06680 (4th Dept.,2023) a neglect proceeding, the Appellate Division observed that an order of disposition brings up for review the court’s contested finding of neglect and that respondent “was aggrieved by that finding despite [his] consent to the disposition”. It agreed with respondent that the court erred in granting petitioner’s motion for summary judgment. “Family Court may grant summary judgment in a[ ] ... neglect proceeding if no triable issue of fact exists” “As relevant here, a criminal conviction may be given collateral estoppel effect in a Family Court proceeding where (1) the identical issue has been resolved, and (2) the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct”. Here, contrary to petitioner’s assertion, it failed to establish the identity of the issues in the present litigation and the prior determination inasmuch as it is not clear whether the conviction related to the allegations with respect to two of the children covered in the neglect petition and for whom respondent was a person legally responsible—or their friend—a child not named in the petition and for whom respondent was not legally responsible. “[I]t is not enough to merely establish the existence of the criminal conviction; the petitioner must prove a factual nexus between the conviction and the allegations made in the neglect petition” (Matter of Jewelisbeth JJ. [Emmanuel KK.], 97 AD3d 887, 888 [3d Dept 2012]). On this record, petitioner failed to meet its burden of establishing as a matter of law that respondent neglected Clarissa or Elaine.
Complaint to set aside Settlement Agreement dismissed where defendant’s evidentiary submissions and plaintiff’s admissions to them conclusively established that she had no cause of action for fraud inasmuch as she could not have justifiably relied on the alleged fraudulent representations
In Van Ostrand v Latham, --- N.Y.S.3d ----, 2023 WL 8865650 (Mem), 2023 N.Y. Slip Op. 06629 (4th Dept.,2023) the Plaintiff commenced an action for divorce against defendant in January 2019. In April 2021, plaintiff and defendant entered into a Divorce Settlement Agreement (Agreement), and a September 2021 judgment of divorce incorporated but did not merge the Agreement. In section XIV of the Agreement, defendant denied any financial wrongdoing “with regard to assets involving investments made over the course of the marriage, including but not limited to a total of 20 gold ingots which [defendant] represents were sold by him to finance the construction of an addition to the former marital residence.” That section further provided that defendant “represents that 20 ingots was the total quantity purchased and no ingots remain.” In August 2022, plaintiff commenced an action seeking to set aside the Agreement. She alleged that the representation made by defendant in section XIV of the Agreement was fraudulent. She alleged that she obtained 53 invoices dated May 1996 through December 2002 that reflected purchases of 120 gold ingots by defendant during the marriage, despite his representation that only 20 gold ingots ever existed. Plaintiff further alleged that she obtained various financial records showing that certain marital funds that defendant had exclusive control over were not accounted for, and she set forth in detail six different instances of missing funds. As a first cause of action, plaintiff asserted that defendant committed fraud by making a material misrepresentation of an existing fact in section XIV of the Agreement. As a second cause of action, plaintiff asserted that defendant’s fraudulent concealment resulted in an agreement that was manifestly unjust. The Appellate Division held that the court properly granted defendants motion to dismiss the complaint because defendant’s evidentiary submissions and plaintiff’s admissions to them conclusively established that she had no cause of action for fraud inasmuch as she could not have justifiably relied on the alleged fraudulent representations. With respect to the alleged missing funds, plaintiff was aware before she entered into the Agreement that the financial records in her possession and the reports from the certified public accountant she retained showed that there was unaccounted-for money, specifically the six instances set forth in the complaint. With respect to the gold ingots, the invoices show that the ingots were purchased by the business jointly owned by plaintiff and defendant and not, as plaintiff alleged in the complaint, by defendant personally. In any event, plaintiff admitted that she was aware that there were at least 24 gold ingots at the time defendant represented that there were only 20. In addition, plaintiff admitted that she had access to the financial records during the marriage, and indeed filed all of them in “banker boxes” that were kept in the marital residence, which would include the 53 invoices showing the purchase of 120 ingots.
Appeal from Order Committing father to jail for failing to obey a child support order dismissed by Appellate Divison where the fugitive disentitlement theory applied to the appeal.
In Matter of Thurston v Bombard --- N.Y.S.3d ----, 2023 WL 8866494 (Mem), 2023 N.Y. Slip Op. 06661 (4th Dept,.2023) Respondent father appealed from an order committing him to jail for three months for willfully failing to obey a child support order. The father moved to Florida without ever serving his term of imprisonment or purging the contempt finding by paying the amount set by the court toward his child support arrears. The father was the subject of a bench warrant in this State, but refused to return. The appeal was dismissed and respondent was granted leave to move to reinstate the appeal upon the posting of an undertaking with Family Court,, in the amount of $90,000, the amount set by the court to allow the father to purge the term of incarceration, within 60 days of service of a copy of the order of this Court with notice of entry. The Appellate Division held that the fugitive disentitlement theory applied to this appeal. By the father’s “absence, he was evading the very order from which he sought appellate relief and willfully made himself unavailable to obey the mandate of Family Court in the event of an affirmance”.
December 20, 2023
Appellate Division, First Department
A separate dispositional hearing was not required before terminating the father’s parental rights where Family Court presided over the case for nearly 10 years, was very well acquainted with the parties, and had sufficient information to make an informed determination
In Matter of Mariah C. P, --- N.Y.S.3d ----, 2023 WL 8720970 (Mem), 2023 N.Y. Slip Op. 06485(1st Dept.,2023) the Appellate Division affirmed an order which after a hearing, upon a finding that respondent father had violated the suspended judgment, revoked the suspended judgment, terminated the father’s parental rights, and committed the childs guardianship to petitioner and the Commissioner of Social Services for the purpose of adoption. A preponderance of the evidence supported Family Court’s finding that the father failed to comply with the terms of the suspended judgment. A separate dispositional hearing was not required before terminating the father’s parental rights. Family Court presided over the case for nearly 10 years, was very well acquainted with the parties, and had sufficient information to make an informed determination regarding the child’s best interests (see Matter of Reyaldo M. v. Violet F., 88 AD3d 531, 531 [1st Dept 2011]). The child had lived with the same foster parent for most of her life, had bonded with the parent, and wished to be adopted.
Appellate Division, Second Department
Although generally an appeal from an order of disposition brings up for review an order of fact-finding the father was foreclosed from raising issues related to the fact-finding phase of the proceeding, since he defaulted in appearance at the fact finding hearing
In Matter of King D.C., --- N.Y.S.3d ----, 2023 WL 8608946, 2023 N.Y. Slip Op. 06363 (2d Dept, 2023) a proceeding to terminate parental rights, the Appellate Division held that although generally an appeal from an order of disposition brings up for review an order of fact-finding (see CPLR 5501[a][1]), here, the father was foreclosed from raising issues related to the fact-finding phase of the proceeding, since he defaulted in appearance at the fact finding hearing and a party cannot appeal from an order entered upon default. However, since the father appeared at the dispositional hearing, the Court may review the issue of whether the Family Court properly terminated his parental rights and freed the children for adoption.
Appellate Division, Third Department
DRL §248 mandates discrete findings of cohabitation and holding out. There must be evidence of ‘some assertive conduct’ that goes beyond sharing a residence. Evidence of cohabitation and comingling of resources does not establish that the wife is holding the other man out to be her spouse
In Cherico v Cherico, --- N.Y.S.3d ----, 2023 WL 8630022, 2023 N.Y. Slip Op. 06427 (3d Dept.,2023) Plaintiff ( wife) and defendant ( husband) were divorced in 2021. Their May 2021 “Opting–Out” agreement, incorporated but not merged into the judgment of divorce, required the husband to pay the wife $1,050 per month in maintenance for a period of 60 consecutive months. Under the agreement, that obligation would terminate upon the wife’s establishment of a relationship with another individual that is “tantamount to [one] contemplated by [Domestic Relations Law § 248]” – i.e., a marital-type relationship where the wife habitually lives with someone else and holds herself out to be that person’s spouse. The husband moved to terminate the maintenance award, alleging that the wife had entered into a relationship with another man, triggering the Domestic Relations Law § 248 provision. The husband maintained that the wife had been living with the other man for approximately one year, and had purchased a home with him. He further alleged that the wife had read a co-parenting book with the other man, directed the parties’ children to refer to him as their stepfather and that she and the children were living with the other man “as a family unit.” In opposition, the wife submitted an affidavit in which she denied holding the other man out to be her spouse, stating that she did not refer to him as the children’s stepfather, did not refer to him as her husband and did not use his surname in any capacity. The wife also explained that the other man maintained a separate property where he continued to receive mail and kept most of his personal belongings. She emphasized that she was not engaged to be married to the other man, did not wear a wedding ring, had never filed joint income tax returns and maintained separate health insurance. The exhibits annexed to the wife’s opposition papers included copies of her driver’s license, the mortgage note pertaining to her residence, certain bank account statements and a 2021 tax form. The wife’s maiden name is listed on all of these documents, and the other man is not listed on her bank account statements or tax documents. Supreme Court, after giving the father the opportunity to submit further proof, denied the husband’s application without a hearing, finding that his offer of proof was insufficient to establish a triable issue of fact as to whether the wife was in a relationship tantamount to one contemplated in Domestic Relations Law § 248. The Appellate Division affirmed. It held that under Domestic Relations Law § 248, a court may, in its discretion, annul a maintenance award “upon proof that the payee is habitually living with another person and holding himself or herself out as the spouse of such person” . The statutory language clearly mandates discrete findings of cohabitation and holding out. The statutory holding out requiremen necessitates more than proof that two individuals ‘conform to the life style of a married couple. In addition to the evidence that establishes cohabitation, the statute further requires separate proof that a payee spouse and another individual held themselves out as spouses. There must be evidence of ‘some assertive conduct’ that goes beyond sharing a residence.(Northrup v. Northrup, 43 N.Y.2d at 571, 402 N.Y.S.2d 997, 373 N.E.2d 1221).Evidence of cohabitation and comingling of resources does not establish that the wife is holding the other man out to be her spouse. The fact that the other man was listed on the deed to the wife’s residence did not reflect a holding out for the wife took title in her own name as a tenant in common, not as tenants by the entirety. By definition, each cotenant has a separate and distinct legal interest in the property. Despite the husband’s assertion that the children referred to the other man as a second father, there was no evidence offered that the wife encouraged them to do so. The wife acknowledged reading a co-parenting book with the other man to learn better parenting skills but that in no way reflects a holding out of a spousal relationship. The husband failed to proffer any viable evidence that the wife had ever used [the other man’s] surname nor any other conduct by the wife, either through direct action or by implication, indicating that she ever wished anyone to believe that she was married to [the other man]. It rejected the husbands request to apply more “modern” factors to the holding-out requirement than those listed in Northrup. The factors set forth in Northrup were “not meant to suggest a limitation on the type of proof required and Northrup imposes no temporal limitation on what constitutes a holding ou t as spouses in today’s society. This decision was not confined to the factors specifically listed in Northrup, but based upon the totality of the evidence presented. It rejected the husband’s argument that Supreme Court erred in rendering its decision without the benefit of the bank records that were the subject of judicial subpoenas. Even assuming these records showed what the husband claimed they would – i.e., a commingling of finances and Internet/utilities accounts in the other man’s name – this does not establish the strict – if antiquated – holding-out requirement of Domestic Relations Law § 248, which the parties specifically adopted within their agreement.
December 13, 2023
[No significant decisions]
December 6, 2023
A court cannot reform an agreement to conform to what it thinks is proper, if the parties have not assented to such a reformation. A plenary action is necessary to reform a stipulation.
In Anderson v Anderson, --- N.Y.S.3d ----, 2023 WL 8246131, 2023 N.Y. Slip Op. 06108 (2d Dept.,2023) in July 2002, the plaintiff commenced this action for divorce. On February 1, 2005, the parties entered into an oral stipulation of settlement in open court, which provided, inter alia, that the defendant was presently receiving disability benefits under his pension plan, but that “there will come a time that he will be entitled to retirement benefits, and, at that time, which will be at age sixty two, he will divide the marital share of the pension with his wife equally.” The stipulation of settlement was incorporated but not merged into the parties’ judgment of divorce dated July 12, 2005. A domestic relations order dated November 1, 2005, similarly provided that the plaintiff would receive a marital share of the defendant’s retirement benefits “at such time as [he] has retired and is actually receiving a regular service retirement allowance.” In 2017, the parties learned that the original DRO could not be implemented by the defendant’s pension plan, because the defendant had retired on a disability pension in 2001, and that the defendant’s disability pension would not be replaced by a regular service retirement pension when he reached age 62. In 2019, the defendant submitted a proposed amended DRO with notice of settlement, providing for distribution of a marital share of the defendant’s pension benefits to the plaintiff, commencing on his 62nd birthday. The plaintiff opposed the entry of the proposed DRO and moved, inter alia for issuance of an amended DRO providing for retroactive distribution of the plaintiff’s share of the defendant’s pension benefits. Supreme Court granted the plaintiff’s motion to the extent that it concluded that there was an “ambiguity between the parties’ oral Stipulation of Settlement and the Judgment of Divorce,” that the parties had been mistaken as to the status of the defendant’s pension, but their intent for the plaintiff to receive her “full marital portion of Defendant’s retirement benefits upon Defendant’s receipt of same” was clear, and that the plaintiff’s proposed amended DRO should be issued. The Appellate Division reversed. It held that a court cannot reform an agreement to conform to what it thinks is proper, if the parties have not assented to such a reformation. Supreme Court should have rejected the plaintiff’s contention that the stipulation of settlement was ambiguous. The interpretation of the stipulation advanced by the plaintiff would render meaningless the terms of the stipulation providing that distribution of pension benefits to the plaintiff would commence in the future, when the defendant reached the age of 62. It held the agreement was not ambiguous. To the extent that the Supreme Court determined that the stipulation of settlement was affected by a mutual mistake, reformation was not appropriate. A motion is not the proper vehicle for challenging a separation agreement incorporated but not merged into a judgment of divorce. Rather, the plaintiff was required to commence a plenary action to reform the stipulation. In any event, reformation of the stipulation was unwarranted, as the parties’ mistake regarding the category of benefits the defendant would receive did not “involve a fundamental assumption of the contract.
Conclusory and nonspecific allegations relating to a change in circumstances are insufficient to justify a hearing on a change in custody
In Matter of Wagner v Del Valle, --- N.Y.S.3d ----, 2023 WL 8246064, 2023 N.Y. Slip Op. 06143 (2d Dept.,2023) the Appellate Division held that in order to modify an existing custody arrangement, there must be a showing of a subsequent change in circumstances so that modification is required to protect the best interest[s] of the child. Entitlement to a hearing on a modification petition, however, is not automatic; the petitioning parent must make a threshold evidentiary showing of a change in circumstances demonstrating a need for modification in order to insure the child’s best interests. Conclusory and nonspecific allegations relating to a change in circumstances are insufficient to justify a hearing on the issue of whether a change in custody would be in the best interests of the child.
Supreme Court
The euthanasia of a companion animal without the consent of the other party is not violative of the Automatic Orders in a matrimonial action
In C.M., v. E.M., 2023 WL 8360025 (Sup. Ct.,2023) the Automatic Orders that were served action provided: (1) Neither part [sic] shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with this action. Supreme Court observed that the Automatic Orders are codified within DRL § 236(B)(2)(b). That section is entirely devoid of any reference to companion animals. Companion animals are not listed, nor provided in, the text of the Automatic Orders. The Supreme Court held that the euthanasia of a companion animal without the consent of the other party is not violative of the Automatic Orders in a matrimonial action.
CPLR § 2106 was adopted to provide alternatives to affidavits requiring notarization for those persons who are physically located outside the United States of America
In S.B., v. A.K., --- N.Y.S.3d ----, 2023 WL 8409732, 2023 N.Y. Slip Op. 23373 (Sup. Ct, 2023) the action was commenced with the Plaintiff’s filing of a Summons with Notice. In support of his motion for an order declaring the Defendant in default for failure to appear Plaintiff submitted a Statement of Service pursuant to CPLR § 2106(b) which included as paragraph seven the following language: ”I affirm this 10 day of March, 2023, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that I am physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.” The Affidavit of Service was not signed before a notary public or other authorized official (see generally U.S. Bank National Association v Langner, 168 AD3d 1021 [2d Dept 2019])” The Court observed that CPLR § 2309 sets forth the way oaths and affirmations are to be administered and notes in section (c) regarding oaths and affirmations taken without the state: An oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed has been acknowledged before the officer who administered the oath or affirmation. CPLR § 2106 was adopted to provide alternatives to affidavits requiring notarization in two instances, the first being for attorneys and health care practitioners licensed to practice within New York State who are not parties to an action and for those who are physically located outside the United States of America noting: An oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed has been acknowledged before the officer who administered the oath or affirmation. CPLR § 2106 also provides: ”(b) The statement of any person, when that person is physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form:” I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that I am physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.(Signature)” The Court held that Plaintiff’s submission of the CPLR § 2106(b) Statement was permissible and in acceptable form, and granted Plaintiff’s application to hold Defendant in default.
November 29, 2023
Appellate Division, First Department
Family Court no longer has “exclusive, continuing jurisdiction” over an enforcement matter under the UCCJEA Domestic Relations Law § 75 et seq. where neither the children nor their parents presently lived in this State. A “significant connection” hearing is not required where Family Court properly found that it lacked exclusive, continuing custody jurisdiction
In Matter of Joshua A v. Shaquanda T, --- N.Y.S.3d ----, 2023 WL 8194305, 2023 N.Y. Slip Op. 06077 (1st Dept., 2023) the Appellate Division affirmed an order which dismissed with prejudice and on the ground of lack of jurisdiction, petitioner fathers’ petition for enforcement of a visitation order. It found that Family Court no longer has “exclusive, continuing jurisdiction” over this matter under the Uniform Child Custody Jurisdiction and Enforcement Act, Domestic Relations Law § 75 et seq. as neither the children nor their parents presently lived in this State (Domestic Relations Law § 76–a[1][b]]). When the father filed the enforcement petition, he was living in New Jersey, and the mother and children were living in North Carolina. It rejected the father’s argument that a hearing was required to determine whether the children retained a “significant connection” to New York, since Family Court properly found that it lacked exclusive, continuing custody jurisdiction based solely on its determination that the parents and children did not presently reside in New York (Domestic Relations Law § 76–a[1][b]). It rejected the father’s argument in the alternative that, even if Family Court correctly found that it did not have exclusive, continuing jurisdiction under Domestic Relations Law § 76–a(1), it could have exercised discretionary jurisdiction under Domestic Relations Law § 76–a(2) if it found that it had initial child custody jurisdiction under Domestic Relations Law § 76. Neither child and neither parent lived in New York, and the father failed to make out a prima facie showing that the children and either parent have a “significant connection” to New York and that there is “substantial evidence . . . available in this state concerning the [children’s] care, protection, training and personal relationships” (Domestic Relations Law § 76[1][a] and [b]). The father also pointed out that it appeared that no other court would have had original custody jurisdiction at the time the father filed his enforcement petition (Domestic Relations Law § 76[1][d]). Had he sought to modify the existing custody or visitation orders, this might have been a basis for Family Court to exercise jurisdiction. However, the father’s petition sought only enforcement of the visitation order. The plain language of the discretionary provision of Domestic Relations Law § 76–a(2) provides jurisdiction only for modification of this state’s custody orders, and the father had not provided any authority for application of Domestic Relations Law § 76–a(2) to requests for enforcement.
Appellate Division, Second Department
Where father failed to comply with Family Court Act § 424–a court should have precluded him from offering evidence regarding his financial ability to pay support, and should have determined the amount of child support based on the needs of the child.
In Matter of Grant v Seraphin, --- N.Y.S.3d ----, 2023 WL 8102714, 2023 N.Y. Slip Op. 06044 (2d Dept.,2023) the mother filed a petition seeking child support. At a hearing the mother made an application to determine the father’s child support obligation based on the needs of the child, as the father had failed to comply with required financial disclosure. The Support Magistrate denied the application and allowed the father to present evidence regarding his ability to pay support. The Support Magistrate, directed the father to pay child support of $283 biweekly. Family Court denied the mother’s objections to the order. The Appellate Division observed that Family Court Act § 424–a “mandates the compulsory disclosure by both parties to a support proceeding of ‘their respective financial states,’ through the provision of tax returns, pay stubs, and sworn statements of net worth”. Where a respondent in a child support proceeding fails, without good cause, to comply with the compulsory financial disclosure mandated by Family Court Act § 424–a, ‘the court on its own motion or on application shall grant the relief demanded in the petition or shall order that, for purposes of the support proceeding, the respondent shall be precluded from offering evidence as to [the] respondent’s financial ability to pay support. Here, the father failed to provide a sworn statement of net worth, a tax return, or a pay stub, and he did not offer an explanation for his failure to do so. Since the father failed, without good cause, to comply with the compulsory financial disclosure mandated by Family Court Act § 424–a, the Family Court was required to either grant the relief demanded in the petition or preclude the father from offering evidence as to his financial ability to pay support. Under the circumstances of this case, the court should have precluded the father from offering evidence regarding his financial ability to pay support, and should have determined the amount of child support based on the needs of the child, as requested by the mother (see Family Ct Act §§ 413[1][k]; 424–a[b]) It remitted the matter to the Family Court, for a new hearing and a new determination.
Supreme Court improvidently exercised its discretion in denying the defendant’s motion for leave to amend her answer to change the date of the parties’ marriage from the date of their civil marriage ceremony, which occurred after the passage of the Marriage Equality Act, to the date of the parties’ religious marriage ceremony, which occurred six years prior to the passage of the Marriage Equality Act
In Mackoff v Bluemke-Mackoff, --- N.Y.S.3d ----, 2023 WL 7561813, 2023 N.Y. Slip Op. 05721 (2d Dept.,2023) the issue presented on this appeal, apparently an issue of first impression for an appellate court in this State, was whether the Supreme Court improvidently exercised its discretion in denying the defendant’s motion for leave to amend her answer to change the date of the parties’ marriage from the date of their civil marriage ceremony, which occurred after the passage of the Marriage Equality Act, to the date of the parties’ religious marriage ceremony, which occurred six years prior to the passage of the Marriage Equality Act. On July 21, 2005, in New York City, the plaintiff, Robin Mackoff, and the defendant, Linda Bluemke–Mackoff, participated in a traditional Jewish marriage ceremony that was performed and solemnized by a rabbi. The parties did not obtain a marriage license for this ceremony since, at the time, New York State did not offer marriage licenses to same-sex couples or recognize same-sex marriages. After this ceremony, the parties continued living together and, according to the defendant, held themselves out as spouses. In June 2011, New York State enacted the Marriage Equality Act (hereinafter the MEA), which authorized same-sex couples to enter into civil marriages in New York State. On July 28, 2011, four days after the MEA went into effect, the parties obtained a New York State marriage license and were married in a civil ceremony. On January 23, 2019, the plaintiff commenced this action for a divorce . In her complaint, the plaintiff claimed that the parties were married on July 28, 2011. On May 15, 2019, the defendant filed an answer, which did not refute the July 28, 2011 marriage date. The defendant was subsequently awarded certain pendente lite relief, including temporary spousal maintenance. On December 10, 2020, the defendant moved for leave to amend her answer to reflect that the parties were married on July 21, 2005, instead of July 28, 2011. The plaintiff opposed the motion. Supreme Court denied the defendant’s motion, determining that the amendment would be prejudicial to the plaintiff in light of the amount of time that had elapsed and the pendente lite relief previously granted. The court also determined that the amendment lacked merit because the MEA did not confer validity to a same-sex marriage conducted prior to its enactment. The Appellate Division reversed. It held that because the request for leave to amend her answer was not prejudicial to the plaintiff, palpably insufficient, or patently devoid of merit, her motion for such relief should have been granted. While the Domestic Relations Law deems it necessary for all persons intending to be married to obtain a marriage license, a marriage is not void for the failure to obtain a marriage license if the marriage is solemnized. The Court pointed out that at this stage in the litigation, we are tasked only with determining whether the defendant should be permitted to amend her answer to make the claim that the date of the parties’ marriage was July 21, 2005, not July 28, 2011. In the absence of prejudice or surprise to the opposing party, a motion for leave to amend the [pleadings] pursuant to CPLR 3025(b) should be freely granted unless the proposed amendment is ‘palpably insufficient’ to state a cause of action or is patently devoid of merit”. It found that the defendant’s proposed amendment was neither palpably insufficient nor patently devoid of merit. Contrary to the determination of the Supreme Court, the plaintiff failed to establish that the defendant’s proposed amendment was prejudicial to her in such a way that the defendant’s motion for leave to amend her answer should be denied. Neither the length of time between the defendant’s original answer and her motion for leave to amend, nor the fact that the amendment may affect the plaintiff’s maintenance and equitable distribution obligations, were sufficient to establish prejudice to the plaintiff (see R & G Brenner Income Tax Consultants v. Gilmartin, 166 A.D.3d at 687, 89 N.Y.S.3d 85).
The burden of repaying marital debt should be equally shared by the parties, in the absence of countervailing factors, and any such liability should be distributed in accordance with general equitable distribution principles and factors.
In Ilyasov v Ilyas, --- N.Y.S.3d ----, 2023 WL 7561961 (Mem), 2023 N.Y. Slip Op. 05717 (2d Dept.,2023) the parties were married in 1987. The defendant left the marital residence in 2010. The plaintiff commenced the action for a divorce in September 2015, the parties had one minor child. The parties stipulated that the only remaining issues were child support and equitable distribution with respect to the defendant’s nursing degree and licenses, the defendant’s pensions, and the marital residence. The Appellate Division held that Supreme Court providently exercised its discretion in declining to make any equitable distribution award to the plaintiff relating to the defendant’s nursing degrees and licenses. The court’s determination that the plaintiff did not substantially contribute to the defendant’s acquisition of her nursing degrees Supreme Court directed that the plaintiff “buy out the defendant’s share of the marital residence for $330,000,” or, if sold, each party shall receive 50% of the proceeds of the sale, but adjustments for any outstanding mortgage or unpaid taxes associated would be deducted from the plaintiff’s share of the proceeds With respect to the marital residence, the Supreme Court providently exercised its discretion in determining that the plaintiff is responsible for paying unpaid property taxes. The burden of repaying marital debt should be equally shared by the parties, in the absence of countervailing factors, and any such liability should be distributed in accordance with general equitable distribution principles and factors. Here, contrary to the court’s determination, the parties applied for a home equity line of credit in January 2004, and, as of October 1, 2010, prior to the commencement of this action, there was $212,125.73 outstanding on the credit line. Under the circumstances, the burden of repaying this marital debt, incurred during the marriage, should be equally shared by the parties. It modified the judgment to reflect that the parties were equally responsible for the $212,125.73 outstanding balance on the home equity credit line as of October 1, 2010. Supreme Court improvidently exercised its discretion in awarding the plaintiff only 30% of the marital portion of the defendant’s pension with 1199 SEIU Health Care Employees Pension Fund based on its unelaborated finding that the defendant left the marital residence “due to the abusive environment created by the plaintiff.” The general rule in New York is that marital fault should not be considered in determining equitable distribution. Egregious marital fault may be considered as a factor only in rare cases involving egregious and extraordinary conduct which shocks the conscience of the court This record did not support a finding of marital misconduct “so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship”.
It is within the sound discretion of the court to accept a belated order or judgment for settlement. A court should not deem an action or judgment abandoned where the result ‘would not bring the repose to court proceedings that 22 NYCRR 202.48 was designed to effectuate, and would waste judicial resources.
In Gargano v Gargano, --- N.Y.S.3d ----, 2023 WL 7560958, 2023 N.Y. Slip Op. 05715(2d Dept.,2023) the parties were married and, in 2011, the plaintiff commenced this action for a divorce. In a decision after trial dated June 7, 2018, the Supreme Court, directed the parties to settle judgment on notice within 60 days from the date of the decision. Thereafter, the parties made various posttrial motions, inter alia, to vacate and/or modify the decision after trial and to reopen the trial. In an August 2019 order, the court decided those motions and directed the parties to settle the judgment of divorce on notice within 30 days thereof. The parties failed to timely settle the judgment of divorce and, on March 2, 2020, the court, on its own motion, ordered that the parties “shall file the judgment roll on notice on or before March 31, 2020” and that, upon their failure to do so, the action “shall be deemed abandoned pursuant to 22 NYCRR § 202.48(b).” The March 31, 2020 deadline was tolled pursuant to Executive Orders issued in response to the public health crisis occasioned by the COVID–19 pandemic (see Executive Order [A. Cuomo] No. 202.8 [9 NYCRR 8.202.8]). On March 2, 2021, the defendant submitted the judgment roll. The plaintiff moved pursuant to 22 NYCRR 202.48 to dismiss the complaint as abandoned based upon the defendant’s delay in submitting the judgment. Supreme Court, inter alia, denied the plaintiff’s motion. On December 2, 2021, the court issued a judgment of divorce. The Appellate Division affirmed. It held that it is within the sound discretion of the court to accept a belated order or judgment for settlement. Moreover, a court should not deem an action or judgment abandoned where the result ‘would not bring the repose to court proceedings that 22 NYCRR 202.48 was designed to effectuate, and would waste judicial resources’. Supreme Court providently exercised its discretion in denying her motion pursuant to 22 NYCRR 202.48 to dismiss the complaint as abandoned, as the defendant demonstrated good cause for the delay in submitting the judgment roll and “since doing so brought finality to the proceedings and preserved judicial resources.
Family Court erred in making a final custody determination without completing the hearing on the father’s petition and the mother’s cross-petition where neither the father nor the mother rested their respective case or gave a closing argument
In Matter of Janvier v Santana-Jackson, --- N.Y.S.3d ----, 2023 WL 7562435, 2023 N.Y. Slip Op. 05732 (2d Dept.,2023) a hearing on the father’s relocation petition and the mother’s cross-petition for an award of sole physical custody recommenced in May 2019. The Family Court admitted into evidence copies of forensic reports; however, due to multiple factors, including the global COVID–19 pandemic and the court’s scheduling issues, the hearing did not continue for many months. In an interim order dated August 28, 2019, the court, while acknowledging that “many facts [were] still in dispute,” that “the trial [was] still ongoing,” and that “it [was] pre-mature for [the] Court to make any findings and determinations,” continued the award of sole physical custody of the child to the father and, essentially, permitted the father to enroll the child in preschool in New Jersey. After a virtual conference on April 21, 2021, the court ordered a second updated forensic evaluation. By order dated September 15, 2021, before completion of the second updated forensic evaluation, and although neither the father nor the mother rested their respective case or gave a closing argument, the court, inter alia, granted the father’s relocation petition and denied the mother’s cross-petition for an award of sole physical custody of the child. The Appellate Division held that Family Court erred in making a final custody determination without completing the hearing on the father’s petition and the mother’s cross-petition in order to determine what arrangement was in the best interests of the child. It remitted for the completion of the hearing and new determinations.
Family Court improvidently exercised its discretion in granting the fathers sanctions motion without affording the mother a reasonable opportunity to be heard, where the court never set a briefing schedule for the sanctions motion, and in effect, denied the mother’s new counsel’s request to file opposition papers thereto.
In Matter of Hunte v Jones, --- N.Y.S.3d ----, 2023 WL 7562855, 2023 N.Y. Slip Op. 05731 (2d Dept.,2023) in December 2020, the mother filed a petition in the Family Court to modify the parties’ custody order to award her sole legal custody of the child and to grant her permission to relocate with the child to Florida. In February 2021, the father filed a petition to modify the prior custody orders and requesting, inter alia, additional parental access during the week. By order to show cause dated October 4, 2021, the father moved pursuant to 22 NYCRR 130–1.1 for the imposition of sanctions, costs, and reasonable attorneys’ fees . The father contended, inter alia, that the mother engaged in frivolous conduct by relocating to Florida with the child without prior court approval, and by commencing a separate custody proceeding in Florida. The Family Court signed the order to show cause, setting a return date of November 22, 2021, for the sanctions motion, but not setting a briefing schedule. On April 4, 2022, while the sanctions motion remained pending and undecided, the mother moved for the Family Court Judge to recuse from the proceedings. During proceedings on April 18, 2022, the Family Court indicated that the mother’s prior assigned counsel was being relieved of his assignment, and acknowledged that the mother had new assigned counsel representing her. The court then stated that it intended to grant the mother’s motion for recusal. The court also, in effect, denied the mother’s new counsel’s request to file opposition to the sanctions motion. In an order dated April 27, 2022, the Family Court granted that branch of the sanctions motion which was for an award of reasonable attorneys’ fees for frivolous conduct, and directed the mother to pay attorneys’ fees in the sum of $1,250 to the father. In a separate order the court granted the mother’s motion for recusal. The Appellate Division observed that pursuant to 22 NYCRR 130–1.1(d), “[a]n award of costs or the imposition of sanctions may be made either upon motion in compliance with CPLR 2214 or 2215 or upon the court’s own initiative, after a reasonable opportunity to be heard. The form of the hearing shall depend upon the nature of the conduct and the circumstances of the case.” The Appellate Division agreed with the mother that the Family Court improvidently exercised its discretion in awarding the father reasonable attorneys’ fees without affording her a reasonable opportunity to be heard. Notably, the court never set a briefing schedule for the sanctions motion, and the court, in effect, denied the mother’s new counsel’s request to file opposition papers thereto. Under these circumstances, the mother did not receive a “reasonable opportunity to be heard” on the allegations in the sanctions motion. Additionally, the Family Court improvidently exercised its discretion by deciding the sanctions motion after indicating to the parties during the April 18, 2022 court appearance that it intended to grant the mother’s motion for recusal.
Under the circumstances of this case, the court should not have denied the mother’s objections due to her failure to comply with the proof of service requirement of FCA § 439(e), where she timely filed her objections and timely served a copy thereof upon the father but filed proof of two weeks later and the father did not raise the proof of service issue.
In Matter of Benzaquen v Abraham, --- N.Y.S.3d ----, 2023 WL 7172458, 2023 N.Y. Slip Op. 05498 (2d Dept.,2023) by order of disposition dated February 15, 2022, made after a hearing, a Support Magistrate, inter alia, declined to award the mother the full amount of arrears sought by her. The Family Court mailed the order of disposition to the parties on February 24, 2022. On March 25, 2022, the mother filed objections with the court. On April 5, 2022, the father submitted a rebuttal to the mother’s objections. By order dated August 31, 2022, the court denied the mother’s objections based on her failure to timely file proof of service pursuant to Family Court Act § 439(e). The Appellate Division held that under the particular circumstances of this case, the court should not have denied the mother’s objections due to her failure to comply with the proof of service requirement of Family Court Act § 439(e), and instead should have considered the merits of her objections. Family Court Act § 439(e) provides, in pertinent part, that a party filing objections shall serve a copy of such objections upon the opposing party, and that proof of service upon the opposing party shall be filed with the court at the time of filing of objections. Here, the Family Court improperly denied the mother’s objections on the ground that she failed to timely file proof of service. The mother timely filed her objections and timely served a copy thereof upon the father in compliance with Family Court Act § 439(e). She failed to file proof of service at the time of filing of the objections, as required by the statute, but nonetheless filed such proof two weeks later. Notably, the father submitted a rebuttal and did not raise the proof of service issue.
Appellate Division, Third Department
Supreme Court providently exercised its discretion in awarding the plaintiff 100% of the parties’ interest in the marital residence, where the defendant was unable to contribute financially to the mortgage loan or to the support of the parties’ child due to his long-term incarceration, and where the plaintiff was also responsible for 100% of the parties’ marital debt
In Gigliotti v Gigliotti, --- N.Y.S.3d ----, 2023 WL 8102597, 2023 N.Y. Slip Op. 06029 (2d Dept., 2023) the parties were married on August 20, 2011, and had one minor child. The defendant was incarcerated since 2016, and was not scheduled for release until 2033. The plaintiff commenced this action in or about January 2018. A nonjury trial was scheduled on February 28, 2020. The defendant’s attorney did not appear and did not properly request an adjournment pursuant to the rules of the trial part. The defendant appeared by phone. After the trial, the Supreme Court, inter alia, awarded the plaintiff 100% of the parties’ interest in the marital residence, the parties’ only marital asset, and allocated 100% of the parties’ debt to the plaintiff. A judgment of divorce, upon the decision, was entered on January 25, 2021. The Appellate Division affirmed. It held that Supreme Court providently exercised its discretion in denying the defendant’s application for an adjournment where his counsel did not properly seek an adjournment pursuant to the trial part’s rules and subsequently failed to appear at trial. It also held that Supreme Court providently exercised its discretion in awarding the plaintiff 100% of the parties’ interest in the marital residence, where the defendant was unable to contribute financially to the mortgage loan or to the support of the parties’ child due to his long-term incarceration, and where the plaintiff was also responsible for 100% of the parties’ marital debt
When determining the child’s best interests, Family Court must consider the effect of having committed a family offense when the allegations are proven by a preponderance of the evidence.
In Matter of Jacklyn PP v Jonathan QQ, 2023 WL 8105077 (3d Dept.,2023) the Appellate Division found that a fair preponderance of the evidence supported the conclusion that the father committed the family offenses of stalking in the third degree and fourth degree. It rejected the fathers contention that granting the mother sole custody was not in the child’s best interests and that Family Court erred in considering the father’s family offenses in determining custody. Family Court properly considered the various factors in its best interest analysis, giving greatest emphasis to the father having committed family offenses and finding that presently the parties could not communicate. Contrary to the father’s contention, when determining the child’s best interests, Family Court must consider the effect of having committed a family offense when the allegations are proven by a preponderance of the evidence.
Although the mother would have been unable to take an appeal from the orders entered upon her default, a defaulting party is still free to seek review of the proceedings on a contested inquest
In Matter of Daniel RR v Heather RR, 2023 WL 8104865 (3d Dept.,2023) the maternal grandfather of the children, commenced proceedings seeking, in relevant part, visitation with them. Upon the mother’s default, Family Court issued two orders in March 2020 that awarded the grandfather visitation. After vacating the default and holding an inquest, the Family Court granted the grandfather visitation. The Appellate Division held, inter alia, that although the mother would have been unable to take an appeal from the March 2020 orders entered upon her default, a defaulting party is still free to seek “review ... of the proceedings on a contested inquest” (James v. Powell, 19 N.Y.2d 249, 256 n 3, 279 N.Y.S.2d 10, 225 N.E.2d 741 [1967]; see Matter of DiNunzio v. Zylinski, 175 A.D.3d 1079, 1080, 108 N.Y.S.3d 634 [4th Dept. 2019]). Counsel for the mother appeared at the inquest that led to the appealed-from orders, offered no objection to it occurring, and actively participated in it by cross-examining the grandfather. Family Court, moreover, did not hold the mother to have defaulted in appearance at the inquest. In view of those facts, it concluded that the mother did contest the inquest and that she may appeal from the ensuing orders.
Where Family Courts plethora of errors curtailed significant testimony that would have been relevant and denied the father a full and fair opportunity to present evidence, the custody order on appeal was reversed and remitted for a new fact-finding hearing before a different judge.
In Matter of Shayne FF., v. Julie GG, --- N.Y.S.3d ----, 2023 WL 7750133, 2023 N.Y. Slip Op. 05767 (3d Dept.,2023) the Appellate Division reversed an order of the Family Court which granted respondent’s motion to dismiss petitioner’s applications, to modify a prior order of custody and visitation. The Court observed that although not specifically raised by the parties, Family Court, seemingly driven by its overly narrow interpretation of the father’s petition and amended petition, committed a plethora of errors which curtailed significant testimony that would have been relevant and material to the father’s claim that a change in circumstances had occurred since entry of the 2012 order and that the best interests of the child would be served by modifying said order. Among other things, Family Court heavily limited testimony about the increased driving time and prevented any inquiry as to safety concerns that may have weighed against expanding the father’s parenting time, as to the child’s relationship with either parent, their significant others or their support systems, as to what parenting schedule the father sought, as to the mother’s refusal to allow the father holiday time and as to the father’s prior attempts at addressing that issue. Further, the order on appeal notes that the father “rejected an in court offer that was acceptable to [the mother] and to the [attorney for the child]”; Family Court was reminded that, except in very limited circumstances not applicable here, it cannot consider settlement negotiations among parties in its order (see CPLR 4547). This testimony would have been of particular importance here, where the prior order was premised on the parties’ consent rather than on a prior judicial determination, and such evidence could “give the court a view of the totality of the circumstances and family dynamics, including proof that relates to either party’s fitness as a parent,” and aid the court in its best interests analysis. As these errors compounded and denied the father a full and fair opportunity to present evidence, it reversed the order on appeal and remitted this matter for a new fact-finding hearing before a different judge.
Where the parental rights of both biological parents have been terminated, adoption is the sole and exclusive means to gain care and custody of the child
In Matter of Mirely M., v Wilbert L., --- N.Y.S.3d ----, 2023 WL 7749859, 2023 N.Y. Slip Op. 05772 (3d Dept.,2023) the Appellate Division held that where, as here, the parental rights of both biological parents have been terminated, adoption is the sole and exclusive means to gain care and custody of the child” and courts are “without authority to entertain custody proceedings commenced by a member of the child’s extended family. Here, the stepmother sought only custody of the child; she has not sought adoption. The appeal from denial of the stepmother’s custody petition was moot. Should she still seek care and custody of the child, the stepmother’s sole recourse was to file for adoption.
Appellate Divison, Fourth Department
A mutual mistake exists where the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement. Sufficiency of complaint sustained.
In Baird v Baird, --- N.Y.S.3d ----, 2023 WL 7982187, 2023 N.Y. Slip Op. 05824 (4th Dept., 2023) the Appellate Division affirmed an order which denied the defendants motion to dismiss the complaint pursuant to CPLR 3211 and for summary judgment dismissing the complaint pursuant to CPLR 3212. Plaintiff commenced this postjudgment matrimonial proceeding seeking to reform the parties’ Property Settlement and Parenting Agreement (agreement), which was incorporated but not merged into their judgment of divorce. Plaintiff asserted that the agreement should be reformed to include an equitable distribution of her marital interest in defendant’s pension, which she alleged was omitted from the agreement due to mutual mistake or fraud. The Appellate Division rejected defendants argument that the complaint failed to sufficiently plead a cause of action for reformation based on fraud or mutual mistake . It observed that a claim for reformation of a written agreement must be grounded upon either mutual mistake or fraudulently induced unilateral mistake’. “A mutual mistake exists where the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement”. “When an error is not in the agreement itself, but in the instrument that embodies the agreement, equity will interfere to compel the parties to execute the agreement which they have actually made, rather than enforce the instrument in its mistaken form”. It concluded that the complaint sufficiently stated a cause of action for reformation of the agreement based on mutual mistake by alleging that the parties agreed to “the distribution of all assets owned jointly or in the individual name of either party” and then omitted the distribution of plaintiff’s marital interest in a defined benefit pension that defendant was entitled to because neither party was aware of defendant’s entitlement to those benefits at the time the agreement was negotiated and executed. Those allegations contained sufficient detail to satisfy the particularity requirement of CPLR 3016 (b). It also concluded that the complaint sufficiently states a cause of action for reformation of the agreement based on fraud. “[A] fraud cause of action must allege that the defendant: (1) made a representation to a material fact; (2) the representation was false; (3) the defendant intended to deceive the plaintiff; (4) the plaintiff believed and justifiably relied on the statement and in accordance with the statement engaged in a certain course of conduct; and (5) as a result of the reliance, the plaintiff sustained damages”. Here, the complaint alleges that defendant represented during the divorce negotiations that he did not have a defined benefit plan due to his employer’s bankruptcy; that defendant’s representation was false; that defendant intended to deceive plaintiff; that plaintiff justifiably relied on defendant’s misrepresentation in negotiating the agreement; and that, as a result of her reliance, plaintiff did not receive her marital share of defendant’s pension. Those allegations “sufficiently pleaded the elements of fraud ... and supplied sufficient detail to satisfy the specific pleading requirements of CPLR 3016 (b)”
Where Family Court Act articles 6 and 10 proceedings are pending at the same time, the court may jointly hear the hearing on the custody and visitation petition under article 6 and the dispositional hearing on the petition under article 10 provided, the court must determine the custody and visitation petition in accordance with the terms of article 6.
In Matter of Lillyana B., --- N.Y.S.3d ----, 2023 WL 7982309 (4th Dept., 2023) the Appellate Division held that where as here, Family Court Act articles 6 and 10 proceedings are pending at the same time, the court “may jointly hear the hearing on the custody and visitation petition under [article 6] and the dispositional hearing on the petition under article [10] ... ; provided, however, the court must determine the custody and visitation petition in accordance with the terms of ... article [6]” (Family Ct Act § 651 [c-1]; see § 1055-b [a-1]; Matter of Nevaeh MM. [Sheri MM.—Charles MM.], 158 AD3d 1001, 1002 [4th Dept 2018]). In an article 6 custody proceeding, it is well settled that, as between a parent and a nonparent, the parent has a superior right to custody that cannot be denied absent a finding that the parent has relinquished that right because of “surrender, abandonment, unfitness, persisting neglect or other extraordinary circumstances”. If extraordinary circumstances are established, then the court may make an award of custody based on the best interests of the child (see Bennett, 40 NY2d at 548). It agreed with the court that extraordinary circumstances existed here based on the father’s abandonment of the child.
In a contempt proceeding however misguided and erroneous the father believed the court’s order to have been he was not free to disregard it
In Matter of Pritty-Pitcher v. Hargis., --- N.Y.S.3d ----, 2023 WL 7982342, 2023 N.Y. Slip Op. 05886 (4th Dept.,2023) the Appellate Division held that however misguided and erroneous the father believed the court’s order to have been he was not free to disregard it and decide for himself the manner in which to proceed. Inasmuch as the father did not contest the jurisdictional validity of the prior order and did not dispute that he violated the order by refusing to abide by the provisions granting visitation to petitioner, it rejected his contention that the court erred in finding him in contempt.
Appellate Divison treats decision as order for purpose of taking an appeal where it “meets the essential requirements of an order”
In Matter of Geer, v Collazo , --- N.Y.S.3d ----, 2023 WL 7982541 (Mem), 2023 N.Y. Slip Op. 05904 (4th Dept.,2023) the father appealed from a decision that denied his petition seeking, inter alia, visitation with the child. The Appellate Division held that although no appeal lies from a mere decision, the paper appealed from “meets the essential requirements of an order” (Nicol v Nicol, 179 AD3d 1472, 1473 [4th Dept 2020]) inasmuch as it was filed “with the Court Clerk and ... [it] resolved the [proceeding] and advised the father that he had a right to appeal” (Matter of Louka v Shehatou, 67 AD3d 1476, 1476 [4th Dept 2009]). It therefore treated it as an order.
Family Court
Under Domestic Relations Law § 76-a, a court cannot have exclusive continuing jurisdiction if it never had initial child custody jurisdiction in the first instance
In Matter of E.P.,v. B.S., --- N.Y.S.3d ----, 2023 WL 6819194, 2023 N.Y. Slip Op. 23318 Family Court, (2023) Family Court granted the fathers motion for an order dismissing the petitions on the grounds that New York lacked initial child custody jurisdiction because New York was not the “home state” of the children within the meaning of Domestic Relations Law § 75-a (7) because none of the children were living in New York for the six-month period immediately before the filing of the petitions in November 2022. The parties acknowledged that previous custody petitions had been filed in New York in 2017, that New York had issued temporary orders regarding custody and visitation in those proceedings, and that the Family Court in New York had a long history addressing the custody dispute between the mother and father. However, all the petitions filed in 2017 were dismissed in November 2022. When the 2017 proceedings were commenced, none of the children resided in New York. For a period of more than six months prior to the filing of the 2017 petitions, the children C. and A. had resided in Connecticut with the mother. According to the father, only the child M. lived in New York within the six-month period before the filing of the 2017 petitions. Indeed, in opposition to father’s motion, the mother avers that all three children resided outside of New York “for about 7 years” and that when the father initiated the 2017 proceedings “the children already lived outside the state” (Affirmation in Opposition, p. 7). Even though none of the children resided in New York at the time of commencement of the 2017 proceedings, the mother argues that New York was the children’s “home state” simply because New York had issued initial custody orders in those proceedings. Her argument relied upon Domestic Relations Law § 76-a entitled “exclusive continuing jurisdiction” and case law holding that “[a] New York court that has previously made a child custody determination has exclusive, continuing jurisdiction. The mother’s argument was flawed and circular because Domestic Relations Law § 76-a, and the case law interpreting it, presuppose that the New York court had initial child custody jurisdiction under Domestic Relations Law § 76 when it issued the initial custody order. In other words, under Domestic Relations Law § 76-a, a court cannot have exclusive continuing jurisdiction if it never had initial child custody jurisdiction in the first instance. Moreover, New York’s exercise of initial child custody jurisdiction under Domestic Relations Law § 76 in an earlier proceeding that was subsequently dismissed does not necessarily confer jurisdiction to a later proceeding.. Here, the affidavits of the mother and the father indicate that none of the children resided in New York at the time of commencement of the 2017 proceedings.
November 15, 2023
Where the Referee stated on the record during the hearing that petitioner could only present extraordinary circumstances evidence after she established that she had standing this was an error of law, as extraordinary circumstances is one of several bases for standing to seek custody and visitation.
In Matter of Lashawn K., v. Administration for Childrens Services et al., --- N.Y.S.3d ----, 2023 WL 7391728, 2023 N.Y. Slip Op. 05662 (1st Dept.,2023) the Appellate Division observed that as a prerequisite to seeking custody or visitation with a child, a party must establish standing. The party may establish standing (1) as a parent pursuant to Domestic Relations Law § 70; (2) as a sibling for visitation pursuant to Domestic Relations Law § 71; (3) as a grandparent for visitation or custody pursuant to Domestic Relations Law § 72; or (4) by showing extraordinary circumstances pursuant to Matter of Bennett v. Jeffreys, 40 N.Y.2d 543). In Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488 (2016), the Court of Appeals expanded the definition of the word “parent” to include a nonbiological, nonadoptive parent who has demonstrated by clear and convincing evidence that “the parties agreed to conceive a child and to raise the child together”. Here, Family Court determined after a hearing that petitioner failed to establish the existence of an enforceable pre-conception agreement to conceive and co-parent the subject child with the child’s biological mother. The child’s biological mother unexpectedly died only months after the child was born and before she and petitioner were to be married. The Appellate Division held that Family Court erred in dismissing petitioner’s custody and visitation petitions without permitting petitioner the opportunity to present evidence supporting her argument that she had standing based on extraordinary circumstances. The Referee stated on the record during the hearing that she agreed with the biological father’s position that petitioner could only present extraordinary circumstances evidence after she established that she had standing. This is an error of law, as extraordinary circumstances is one of several bases for standing to seek custody and visitation. Extraordinary circumstances may be found where there has been “a judicial finding of surrender, abandonment, unfitness, persistent neglect, unfortunate or involuntary extended disruption of custody, or other equivalent but rare extraordinary circumstance which would drastically affect the welfare of the child” It reversed and remand the case to Family Court for a further hearing on whether petitioner can establish standing based on extraordinary circumstances.
Contention that no portion of accidental disability pension represented deferred compensation related to his length of service is without merit
In Fanning v Fanning, --- N.Y.S.3d ----, 2023 WL 7362771 (Mem), 2023 N.Y. Slip Op. 05587 (2d Dept.,2023) the parties were married in 1995. In 2008, the plaintiff retired as a police officer for the Garden City Police Department with an accidental disability pension. They were divorced by judgment entered September 20, 2017, which incorporated, but did not merge, their stipulation of settlement. The stipulation of settlement provided for a 50% distribution to the defendant of that portion of the value of the plaintiff’s accidental disability pension which was “based upon the length of service.” Thereafter, the Supreme Court issued a qualified domestic relations order ( QDRO), drafted by the plaintiff’s former counsel and consented to by the parties, which provided for the defendant’s share of the pension to be calculated based on a fraction of the plaintiff’s hypothetical retirement benefits, which he would have received had he not been injured. In January 2021, the plaintiff moved to vacate the QDRO, contending that its terms conflicted with the terms of the stipulation of settlement with respect to the defendant’s share, if any, of his pension benefits. Supreme Court, inter alia, denied the plaintiff’s motion. The Appellate Division affirmed an order which denied the plaintiff’s motion. It noted that to the extent that a disability pension constitutes compensation for personal injuries, that compensation is separate property which is not subject to equitable distribution. A domestic relations order entered pursuant to a stipulation of settlement can convey only those rights to which the parties stipulated as a basis for the judgment. Where a QDRO is inconsistent with the provisions of a stipulation or judgment of divorce, courts possess the authority to amend the QDRO to accurately reflect the provisions of the stipulation pertaining to the pension benefits. Here, the calculation of the defendant’s share of the plaintiff’s disability pension benefit, as set forth in the QDRO, was consistent with the terms of the stipulation of settlement. The plaintiff’s apparent contention that no portion of his accidental disability pension represented deferred compensation related to his length of service was without merit (see Miszko v. Miszko, 163 A.D.3d 1204, 1206, 81 N.Y.S.3d 617; Peek v. Peek, 301 A.D.2d 201, 204, 751 N.Y.S.2d 124; Palazzolo v. Palazzolo, 242 A.D.2d at 690, 663 N.Y.S.2d 58). Accordingly, the Supreme Court properly denied the plaintiff’s motion
Generally, the court’s custody determination should be made only after a full and plenary hearing and inquiry, or, where a party failed to appear, after an inquest.
In Otero v Walker, --- N.Y.S.3d ----, 2023 WL 7363407 (Second Dept.,2023) in 2017 the parties were awarded joint legal custody of their child, with residential custody awarded to the mother and parental access to the father at such times as agreed between the parties. In April 2021, the mother commenced a proceeding to modify the prior order to award her sole legal and residential custody of the child. On June 17, 2022, the father failed to appear for a hearing, and his attorney made an application to set the matter down for an inquest on the mother’s petition. The Family Court denied the application, and granted the mother’s petition upon the father’s default. The Appellate Division held that a custody determination, whether made upon the default of a party or not, must always have a sound and substantial basis in the record. Generally, the court’s determination should be made only after a full and plenary hearing and inquiry, or, where a party failed to appear, after an inquest. Here, the Family Court granted the mother’s petition to upon the father’s default, without receiving any testimony or other evidence, despite the fact that the father’s attorney proffered a reasonable explanation for the father’s absence and that the father did not have a history of missing court dates Under the circumstances, the court improvidently exercised its discretion. It, inter alia, reversed the order, vacated the determination granting the mother’s petition, and remitted the matter to the Family Court for an inquest and a new determination of the mother’s petition.
Pursuant to FCA 1046(a)(ii) the petitioner makes out prima facie case of child abuse or neglect by demonstrating that (1) an injury occurred to a child which would ordinarily not occur absent an act or omission of the respondents and (2) that the respondents were the caretakers of the child at the time the injury occurred
In Matter of J.B. S., --- N.Y.S.3d ----, 2023 WL 6529048, 2023 N.Y. Slip Op. 23303 Family Court, 2023) the neglect petition against J.S, the respondent father alleged RF neglected the subject children in that the child J.b. S. tested positive for fentanyl and was hospitalized while in the care of respondent father . The attorney for the children did not support a finding of neglect. Family court observed that Courts have consistently held that positive toxicology in children, combined with other factors in the record are consistent to sustain a finding of neglect.. The positive toxicology is often paired with a showing that the child suffered harm, such as withdrawal or a hospital stay to recover from the effects of the drug, which is sufficient to establish neglect against the parent or caretaker. Furthermore, case law is clear that a finding of neglect is appropriate when there is a failure to properly supervise by unreasonably allowing harm to be inflicted upon a child.. Here, J.b. S. tested positive for fentanyl and required hospitalization. Dr. N.R. testified about the lethal consequences which fentanyl causes and the record was clear that J.b. S. required lifesaving treatment to reverse the effects from the fentanyl ingestion. This was a harm sufficient to sustain neglect under FCA 1012(f). There must be a showing that this was caused by the failure of his parent or person legally responsible to exercise a minimum degree of care. The Family Court Act has incorporated the res ipsa loquitar definition into its definition of child abuse and neglect. Pursuant to FCA 1046(a)(ii) the petitioner made a prima facie case of child abuse or neglect by demonstrating that (1) an injury occurred to a child which would ordinarily not occur absent an act or omission of the respondents and (2) that the respondents were the caretakers of the child at the time the injury occurred. In Re Philip M. 82 N.Y.2d 238, 604 N.Y.S.2d 40, 624 N.E.2d 168 (1993) the Court did not relieve the Petitioner from meeting its burden of proof by a preponderance of the evidence. However, “as in negligence cases tried on the theory of res ipsa loquitor, once the petitioner puts forth a prima facie case, “the burden of going forward shifts to respondents to rebut the evidence of parental culpability.” The Court of Appeals specifically held that the respondent could rest without rebutting the case and permit the court to decide the case on the strength of petitioner’s evidence. However, if respondents rebut the prima facie case, they may do so by 1) establishing that the child was not in their care at the time of the incident, 2) demonstrating that the injury could reasonably have occurred accidentally, without the acts or omissions of the respondent or 3) countering the evidence that the child had the condition which was the basis for the finding of the injury. The Court in Philip M. upheld the finding and rejected the respondent’s testimony which it held as “conjecture” and without an explanation for how the injury occurred. The Court held that the parents failed to prove that one of the children’s injuries had another source. The testimony proffered by the respondents was implausible and the Court properly rejected their explanation. The Court found that Petitioner established by a preponderance of the evidence that the respondent was the father of the children, that the child has injuries of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent, and that RF was a caretaker for SC when the injury may have occurred. Respondent father failed to rebut the Petitioner’s presumption of neglect. Therefore, under FCA 1046(a)(ii) and Matter of Philip M., the children were neglected children as defined in section 1012(f) of the Family Court Act.
November 8, 2023
Courts have the power to limit a parent’s independent access to a child’s medical, academic, and extracurricular records if it would contravene the child’s best interests.
In Robert S. v. Norma C., --- N.Y.S.3d ----, 2023 WL 6626898, 2023 N.Y. Slip Op. 05210(1st Dept.,2023) the Family Court awarded the mother sole physical and legal custody of the child with therapeutic supervised visits to the father, and granted the father independent access to all school, medical, and extracurricular activity reports from the child’s providers. The Appellate Divison modified, to the extent of deleting the provision of the order granting the father independent access to all school, medical, and extracurricular activity reports from the child’s providers, and otherwise affirmed. It held that the courts have the power to limit a parent’s independent access to a child’s medical, academic, and extracurricular records if it would contravene the child’s best interests. Under the facts of this case, it was not in the child’s best interests for his father to have independent access to his records, as the father had only a limited and sporadic relationship with the child, who adamantly opposed the father’s access to the records.
The term “paystub” is defined as “a record that is given to an employee with each paycheck and that shows the amount of money earned and the amount that was removed for taxes, insurance costs, etc. Informal timesheets do not qualify as “paystubs
In Franklin v Franklin, --- N.Y.S.3d ----, 2023 WL 6394564, 2023 N.Y. Slip Op. 04925 (1st Dept.,2023) the parties’ stipulation of August 24, 2021, provided in pertinent part that plaintiff will pay defendant $2,000 per month “as a contribution towards [defendant’s] childcare expenses.” Plaintiff’s obligation to make the payment is conditioned upon defendant being “employed by a nonrelative” and upon her periodic furnishing to plaintiff of “paystub[s]” documenting such employment. The stipulation required defendant to provide plaintiff with her first paystub from a given employer, the first and last paystub of each calendar year, and the paystub covering July 1 of each year. Defendant moved for an order directing plaintiff to make a childcare payment based on her provision of timesheets purporting to document childcare services that she performed for Matthew Kleban. Given defendant’s averments that there was no written contract or other formal documentation of the employment relationship between herself and Kleban, and that Kleban did not provide her with paystubs, the court found that the timesheets defendant had provided to plaintiff were the “functional equivalent” of the “paystub[s]” required by the stipulation. The Appellate Division reversed the order which granted defendant wife’s motion to compel plaintiff to pay her $18,000 for childcare costs for the period of April to December 2022 and to pay $10,000 in legal fees. It held that a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms. Both parties represented by counsel, entered into a stipulation that expressly conditioned plaintiff’s obligation to make childcare payments upon defendant’s production of “paystub[s]” to document her employment by a nonrelative. The term “paystub” is defined as “a record that is given to an employee with each paycheck and that shows the amount of money earned and the amount that was removed for taxes, insurance costs, etc.” (https://merriam-webster.com/dictionary/paystub); accord Black’s Law Dictionary 1364 [11th ed 2019]). Under this definition, and based upon the circumstances, the informal timesheets produced by defendant plainly did not qualify as “paystubs.” The motion court impermissibly changed the meaning of the parties’ agreement by adding or excising terms under the guise of construction.
A Settlement agreement no longer exists upon its merger into a divorce decree and, therefore, contract principles did not apply in an action for enforcement.
In Hardy v Hummel, --- N.Y.S.3d ----, 2023 WL 7201003, 2023 N.Y. Slip Op. 05564(3d Dept.,2023) the parties' Indiana settlement agreement was approved by the Indiana court and “made a part of” the Indiana decree. The decree directed that “[e]ach of the parties is bound by the terms and conditions of the [a]greement as an [o]rder of this [c]ourt.” Given that the settlement agreement merged into the decree, the agreement “ceased to exist as a separately enforceable contract” (Rainbow v. Swisher, 72 N.Y.2d 106, 109, 531 N.Y.S.2d 775, 527 N.E.2d 258 [1988]). The Appellate Divison held that although the law implies a reasonable time when a contract is silent on the time of performance, the settlement agreement no longer existed upon its merger into the decree and, therefore, contract principles did not apply in this action for enforcement.
Mere technical failures of the acknowledgment do not foreclose the validity of an agreement. An acknowledgment must be executed contemporaneously, although not necessarily simultaneously, with the party’s signing of the agreement
In Ryerson v Ryerson, --- N.Y.S.3d ----, 2023 WL 7201028, 2023 N.Y. Slip Op. 05560 (3d Dept.,2023) Plaintiff ( wife) and defendant (husband) were married in 2005. On March 29, 2020, shortly after the beginning of the COVID–19 pandemic, the parties executed a separation agreement. At that time, Executive Order No. 202.7, issued on March 19, 2020, was in effect, temporarily authorizing the use of audio-visual technology for the remote execution of notarial acts required by state law. The parties met at the wife’s house to execute the separation agreement and contacted a notary public via video conference. After executing the agreement, the parties conveyed to the notary that they had no access to a scanner or facsimile machine to electronically transmit the document to the notary, as required by Executive Order No. 202.7. The notary instructed the wife to mail the agreement back to him, and the husband did not object to this proposed solution. A few days later, the notary received the agreement in the mail, reviewed it, acknowledged the parties’ signatures and mailed a copy of the agreement to each of them. The parties thereafter began complying with several terms of the agreement. The wife later initiated a matrimonial action, seeking, in relevant part, to incorporate but not merge the separation agreement into a judgment of divorce. The husband alleged that the agreement was invalid and unenforceable, and moved to set it aside, asserting, among other things, that the agreement was not signed in compliance with Executive Order No. 202. Supreme Court denied the husband’s motions. The Appellate Divison affirmed. It observed that an unacknowledged agreement is invalid and unenforceable in a matrimonial action. Although substantial compliance of an acknowledgment with the relevant statutory mandates is necessary for a separation agreement to be valid and enforceable, mere technical failures of the acknowledgment do not foreclose the validity of an agreement. The minor variation in which the agreement was sent to the notary did not deprive the notary of authority, and it in no way tainted the notarial process. In the absence of any substantive defect in the acknowledgment itself, the election to send the agreement by mail rather than electronic means was a mere technical irregularity that the courts may overlook. It held that the acknowledgment process used here fulfilled the requirement that an acknowledgment must be executed contemporaneously, although not necessarily simultaneously, with the party’s signing of the agreement. This rule “accounts for a reasonable delay between signing and acknowledgment, which might be occasioned by circumstances unrelated to a party’s knowing delay or intent to gain leverage over the other party as was the case here, where the delay was attributable to the practicalities attendant to the COVID–19 pandemic. The two substantive aspects of an acknowledgment, the oral declaration of the signers and the written certificate of acknowledgment, were present here, and the two purposes of acknowledgment, proving the identity of the signatories and imposing a measure of deliberation upon them had been fulfilled.
November 1, 2023
Applications and motions for the issuance of QDROs are not barred by the statute of limitations
In Wansi v Wansi, --- N.Y.S.3d ----, 2023 WL 7028913 (Mem), 2023 N.Y. Slip Op. 05457 (1st Dept.,2023) the Appellate Division affirmed an order which denied plaintiff’s motion to vacate a qualified domestic relations order (QDRO). It held that contrary to plaintiffs contention applications and motions for the issuance of QDROs are not barred by the statute of limitations and the Uniform Rules for Trial Courts (22 NYCRR) § 202.48 is inapplicable because it was merely a mechanism to effectuate payment of defendant’s share in plaintiff’s retirement plan.
Petitioner lacked standing to bring a guardianship petition where the child had already been placed in the care of the CSS for the purpose of adoption
In Matter of Lajuan M., v. Administration for Children’s Services, --- N.Y.S.3d ----, 2023 WL 6394944, 2023 N.Y. Slip Op. 04932 (1st Dept.,2023) the Appellate Division affirmed an order of the Family Court which dismissed, with prejudice, the petition for guardianship brought under article 6 of the Family Court Act. It held that family Court properly dismissed the petitioner’s request for custody of the subject child. Petitioner lacked standing to bring a guardianship petition because the child had already been placed in the care and custody of the Commissioner of Social Services for the purpose of adoption (see Matter of Roslyn J. v. Charise J., 205 A.D.3d 480, 480, 165 N.Y.S.3d 846 [1st Dept. 2022]; Matter of Carmen P. v. Administration for Children’s Servs., 149 A.D.3d 577, 577, 50 N.Y.S.3d 275 [1st Dept. 2017]).
A violation petition is subject to the requirements of CPLR 3013, and is required to be sufficiently particular as to provide notice of the occurrences to be proved and the material elements of each cause of action
In Matter of Tonya YY., v. James ZZ., --- N.Y.S.3d ----, 2023 WL 7028272, 2023 N.Y. Slip Op. 05435 (3d Dept.,2023) the Appellate Division affirmed an order which dismissed the custody violation petition without a hearing. It held that a violation petition is subject to the requirements of CPLR 3013, and thus is required to be sufficiently particular as to provide notice to the court and opposing party of the occurrences to be proved and the material elements of each cause of action. In order to prevail on a violation petition, the proponent must establish, as relevant here, that the alleged violator’s actions or failure to act defeated, impaired, impeded or prejudiced a right of the proponent and that the alleged violation was willful. Although an evidentiary hearing is required where a violation petition sets forth sufficient allegations that could support granting the relief sought a hearing is not required, even where a factual dispute exists, where, as here, the allegations set forth in the petition, even if accepted as true, are insufficient to support a finding of contempt.
October 25, 2023
Appellate Division, First Department
Promissory notes, which provided that defendant would repay funds to plaintiff, were not enforceable because they were not acknowledged in accordance with DRL § 236(B)(3). Where plaintiff failed to establish a baseline value for the business she could not sustain any claim to appreciation in the value of that business.
In Barone v Clopton, --- N.Y.S.3d ----, 2023 WL 6883804, 2023 N.Y. Slip Op. 05309 (1st Dept.,2023) the Appellate Division reversed a judgment awarding plaintiff $76,000 for loans she made to defendant during the marriage, as memorialized by promissory notes, and $36,200 for third-party loans plaintiff incurred during the marriage. It held that the promissory notes, which provided that defendant would repay funds to plaintiff, were not enforceable in this proceeding because they were not acknowledged in accordance with Domestic Relations Law § 236(B)(3). Plaintiff could not properly have been awarded the sums of those promissory notes or the third-party loans based on those sums having caused defendant’s separate property business to appreciate in value because Supreme Court determined that plaintiff failed to establish a baseline value for the business, and thus, she could not sustain any claim to appreciation in the value of the business (see Domestic Relations Law §§ 236[B][1][d][3], [B][5][c]). Plaintiff did not otherwise demonstrate that she was entitled to any credit for the third-party loans incurred and fully paid during the marriage .
Appellate Division, Second Department
The word “expenses” is commonly understood as meaning costs that are actually incurred.
In Herman v Herman, --- N.Y.S.3d ----, 2023 WL 6853823, 2023 N.Y. Slip Op. 05252 (2d Dept.,2023) the parties were divorced by a judgment that incorporated but did not merge a stipulation of settlement. The plaintiff moved, inter alia, for an award of child support add-on expenses of $31,128. Supreme Court, inter alia, granted the plaintiff’s motion. The Appellate Division reversed. It held that Supreme Court erred. Where the stipulation is clear and unambiguous on its face, the intent of the parties must be gleaned from the four corners of the instrument, and not from extrinsic evidence. Here, the stipulation of settlement was unambiguous. It required the defendant to pay a certain percentage of child support add-on expenses incurred. It did not, however, obligate him to pay a set amount of add-on expenses irrespective of whether, in actuality, those expenses were incurred. The word “expenses,” which the defendant was obligated to pay as add-ons, is commonly understood as meaning costs that are actually incurred.
Appellate Division, Third Department
One-time nonrecurring payments should not have been utilized in calculating the husband’s income, where there was no evidence that these payments would continue in the future
In McFarlane v McFarlane,--- N.Y.S.3d ----, 2023 WL 6883458, 2023 N.Y. Slip Op. 05295 (3d Dept.,2023) the Support Magistrate determined that the husband had demonstrated an extreme hardship to justify a reduction in maintenance. In calculating the husband’s presumptive maintenance amount, the Support Magistrate imputed certain income to the husband. Family Court partially denied the husband’s objections. It determined that the Support Magistrate correctly found that the husband demonstrated an extreme hardship warranting a downward modification, that the maintenance obligation should continue, that the Support Magistrate properly imputed income to the husband and appropriately considered the statutory factors in deviating from the presumptive maintenance amount. The Appellate Division observed that where, as here, the parties’ [stipulation] was incorporated into the judgment of divorce, no modification as to maintenance shall be made without a showing of extreme hardship”(see Domestic Relations Law § 236[B][9][b][1]). While it agreed that the imputation of income to the husband was appropriate, it held that one-time nonrecurring payments should not have been utilized in calculating the husband’s income, including the value of a Mexican vacation, the “probable” payment of counsel fees, a vaccination bonus, the sale of an elliptical, Honda ATV and PRG vacation pay. There was no evidence that these payments would continue in the future and as such they artificially inflated the husband’s imputed income. Thus, these payments should not have been utilized in determining his ongoing maintenance obligation.
Despite the father’s alleged lack of biological relationship to the subject child the father’s unchallenged acknowledgment of paternity afforded him the legal status of a parent for purposes of this custody proceeding.
In Matter of Autumn B., v. Jasmine A., --- N.Y.S.3d ----, 2023 WL 6883411, 2023 N.Y. Slip Op. 05293 (3d Dept.,2023) Respondents Jasmine A. ( mother) and Glenn ZZ. ( father) were the parents of the subject child (born in 2014); although the father’s paternity had been questioned, it was undisputed that he executed a voluntary acknowledgment of paternity following the child’s birth and that the acknowledgment remained in force. The child, like his older half sister, was raised by his maternal grandparents, whom the child understood to be his mother and father. Following the grandmother’s death in March 2020, petitioner (aunt), the child’s maternal aunt, commenced hearing, Family Court awarded the aunt sole custody of the child and granted the father 30 minutes of supervised video visitation every two weeks and at least two hours of supervised, in-person visitation per year. The Appellate Division held as a preliminary matter, although there may have initially been an unwarranted amount of attention paid to the father’s alleged lack of biological relationship to the subject child, it was ultimately accepted that the father’s unchallenged acknowledgment of paternity affords him the legal status of a parent (see generally Family Ct Act § 516–a; Public Health Law § 4135–b). It therefore rejected the father’s argument that Family Court’s award was affected by a fundamental misunderstanding of law. The Appellate Division rejected the father’s assertion that the aunt failed to establish extraordinary circumstances and that the father has not cared for the child for any period of time, and there was no indication of any meaningful relationship between them. He offered no evidence to show that he had considered, and could meet, any of the child’s basic needs. Deferring to Family Court’s credibility determinations and factual findings, it found a sound and substantial basis in the record for awarding the aunt sole custody of the child.
The certification requirement of Family Ct Act § 1046(a)(iv) does not apply to proceedings which seek the termination of parental rights under Social Services Law § 384–b
In Matter of Nevaeh N. ,--- N.Y.S.3d ----, 2023 WL 6883449, 2023 N.Y. Slip Op. 05292 (3d Dept.,2023) the Appellate Division affirmed an order which terminated the parents rights on the grounds of permanent neglect. It rejected the fathers argument, that the court erred in admitting certain substance abuse treatment records because they lacked a certification required by Family Ct Act § 1046(a)(iv). It held that the certification requirement of Family Ct Act § 1046(a)(iv) did not apply to these proceedings which sought the termination of parental rights under Social Services Law § 384–b (see Matter of Shirley A.S. [David A.S.], 90 A.D.3d 1655, 1655, 936 N.Y.S.2d 825 [4th Dept. 2011]). Even if the court erred in admitting these records, it was harmless error.
Family Ct Act § 1046 does not place a time limit on the admissibility of prior findings
In Matter of Bonnie FF. --- N.Y.S.3d ----, 2023 WL 6883479, 2023 N.Y. Slip Op. 05294 (3d Dept.,2023) the Appellate Division held that Family Ct Act § 1046 does not place a time limit on the admissibility of prior findings and our courts have not established a bright-line temporal rule prohibiting the consideration of prior protective determinations (see Matter of Evelyn B., 30 A.D.3d 913, 915, 819 N.Y.S.2d 573 [3d Dept. 2006]).
In a Termination of parental rights proceeding an agency may move for an order finding that “reasonable efforts to return the child to his or her home are no longer required” where “the parental rights of the parent to a sibling of such child have been involuntarily terminated. (Family Ct Act § 1039–b [b][6]).
In Matter of Y. SS., --- N.Y.S.3d ----, 2023 WL 6883470, 2023 N.Y. Slip Op. 05296 (3d Dept.,2023) the Respondent was the mother of the subject child (born in 2013). The Appellate Division observed that it had recently upheld a neglect adjudication involving the child and her continued placement with petitioner, which was premised upon the mother having photographed the child in a sexually explicit manner, disseminated those photographs and agreed to involve the child in her performance of sexual services for money (211 A.D.3d 1390, 180 N.Y.S.3d 675 [3d Dept. 2022]). Following that adjudication, petitioner moved to be relieved of its obligation to make reasonable efforts to reunite the mother with the child, citing the involuntary termination of the mother’s parental rights to several of the child’s siblings (Family Ct Act § 1039–b [b][6]). The attorney for the child supported the motion, the mother opposed and Family Court granted it without a hearing. The Appellate Division affirmed. It observed that ordinarily, to establish permanent neglect, the petitioning agency will need to demonstrate, as relevant here, that it has made “diligent efforts to encourage and strengthen the parental relationship”. However, an agency may move for an order finding that “reasonable efforts to return the child to his or her home are no longer required” in certain circumstances. One such circumstance is where “the parental rights of the parent to a sibling of such child have been involuntarily terminated,” unless the court further “determines that providing reasonable efforts would be in the best interests of the child, not contrary to the health and safety of the child, and would likely result in the reunification of the parent and the child in the foreseeable future” (Family Ct Act § 1039–b [b][6]). Although the Family Ct Act “does not require an evidentiary hearing on such a motion, courts have found that such a hearing is required by constitutional notions of due process ‘when genuine issues of fact are created by the answering papers. Petitioner’s submissions detailed the mother’s 30–year history of removals, neglect findings and terminations of her parental rights as a result of her failure to meaningfully address her mental health and her attendant issues with substance abuse, housing, employment and safe parenting generally. This history includes the involuntary termination of her parental rights with respect to four of the child’s siblings. Contrary to the mother’s assertion, there is no temporal limitation on the terminations that may be considered on a motion pursuant to Family Ct Act § 1039–b (see Family Ct Act § 1039–b [b][6]. Upon review, it found that Family Court soundly determined, without a hearing, that the exception in Family Ct Act § 1039–b did not apply.
October 18, 2023
Appellate Division, First Department
The granting of an income execution for maintenance arrears does not foreclose entry of a money judgment on maintenance arrears
In Beer v Beer, --- N.Y.S.3d ----, 2023 WL 6626902, 2023 N.Y. Slip Op. 05182 (1st Dept.,2023 the Appellate Division held, inter alia, that an income execution, awarded to the wife after the husband unilaterally prevented her from receiving a portion of his income, did not foreclose entry of a money judgment on maintenance arrears (see Domestic Relations Law § 244; Seale v. Seale, 154 A.D.3d 1190, 1194, 63 N.Y.S.3d 550 [3d Dept. 2017]; Gnoza v. Gnoza, 293 A.D.2d 571, 571–572, 740 N.Y.S.2d 226 [2d Dept. 2003]).
Appellate Division finds Implicit consent to an order of reference by actively participating in the proceeding without challenging the Referee’s jurisdiction.
In Edward C. Y.,v. Jessica E. H.,.2023 WL 6626818 (1st Dept.,2023), a family offense proceeding, the Appellate Division held that although the record did not reflect that respondent provided written consent to the order of reference (see CPLR 4317[a]), respondent implicitly consented to the order of reference by actively participating in the proceeding without challenging the Referee’s jurisdiction.
Appellate Division, Second Department
In termination of parental rights proceeding on the ground of abandonment mother was still obligated to maintain contact with the petitioner, who had legal custody of the child, even though the court had suspended her parental access
In Matter of Abel J.R. --- N.Y.S.3d ----, 2023 WL 6613595, 2023 N.Y. Slip Op. 05139 (2d Dept.,2023) a proceeding to terminate parental rights, the Appellate Division held that the mother failed to demonstrate that the petitioner Agency prevented or discouraged her from communicating with it or with the child, or that she was otherwise unable to do so. The mother’s contention that the petitioner prevented her from communicating with the child by suspending her parental access was without merit, as it was the Family Court that suspended the mother’s parental access with the child, not the petitioner. Further, the mother was still obligated to maintain contact with the petitioner, which had legal custody of the child, even though the court had suspended her parental access (see Matter of “Baby Boy” N. [Albert N.], 163 A.D.3d 570, 572, 81 N.Y.S.3d 91; Matter of Alexandryia M.M.B. [Heather C.], 132 A.D.3d 664, 664, 17 N.Y.S.3d 321). The Family Court ruled that the mother could not present evidence regarding events that occurred before the statutory abandonment period. Family Court’s ruling relating to the petitioner’s alleged discouragement before the statutory abandonment period did not prevent the mother from establishing that her failure to communicate with the child or with the petitioner was due to the petitioner’s discouragement (see Matter of Alexa Ray R., 276 A.D.2d 703, 704, 714 N.Y.S.2d 347). The court was presented with evidence that the petitioner’s alleged conduct before the statutory abandonment period discouraged the mother from communicating with the petitioner during the statutory abandonment period. The alleged additional evidence proffered by the mother, even if credited, would not have risen to the level of agency discouragement or prevention of contact. Assuming arguendo that the additional testimony regarding the petitioner’s alleged discouragement before the statutory abandonment period was relevant and should have been admitted, under the circumstances of this case, any error in the Family Court’s ruling was harmless.
Supreme Court
Plaintiff did not establish the alleged harassing statements were made with the necessary intent to harass, alarm, or annoy her where each of the alleged statements was made in the context of discussing issues related to the parties’ children
In S.D. v. J.D., 2023 WL 6614672, Unreported Disposition (Sup. Ct., 2023) a post-judgment proceeding, the Supreme Court denied the plaintiff’s motion for a temporary Order of Protection against Defendant. It observed that Domestic Relations Law (DRL) § 240(3) permits the court to make an order of protection in connection with any custody order and DRL § 252(1) mandates that the court entertain an application for an order of protection or temporary order of protection made by either party in either a pre-judgment or post-judgment proceeding. Courts have followed the case law developed under Article 8 of the Family Court Act when deciding such applications. The party alleging a family offense has the burden of establishing the complained of conduct by a fair preponderance of the evidence. Penal Law § 240.26 provides in relevant part that “[a] person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person: 3. He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person, and which serve no legitimate purpose.” The intent to commit harassment in the second degree can be inferred from the party’s conduct and the surrounding circumstances. Finn v. Harrison, 188 AD3d 1200 (2d Dept. 2020) (intent to commit harassment in the second degree properly inferred from the respondent’s conduct, which included “her use of abusive language directed at the petitioner and her threatening action of videotaping the petitioner while she slept, both of which frightened the petitioner, caused her blood pressure to rise, and served no legitimate purpose”); Matter of Howard v. Howard, 181 AD3d 894, 896 (2d Dept. 2020) (intent to commit harassment in the second degree properly inferred from the respondent’s threatening conduct and use of abusive language directed at the petitioner which frightened the petitioner and served no legitimate purpose). Moreover, a single incident is sufficient to establish harassment in the second degree. See Matter of Richardson v. Brown, 173 AD3d 876, 876—877 (2d Dept. 2019) (evidence established the respondent committed the family offense of harassment in the second degree based on a text message sent by him to the petitioner, which “contained a genuine threat of physical harm, and the evidence ... adequately demonstrated that it was reasonable for the petitioner to take the threat seriously since it was sent during a period of extreme marital discord”). The Court found that Plaintiff failed to allege the requisite elements to state a claim for harassment in the second degree and that the offending statements at issue, which were undisputed rose to the level of a family offense. The plaintiff did not establish the alleged harassing statements were made with the necessary intent to harass, alarm, or annoy her. See Mamantov v. Mamantov, 86 AD3d 540, 551 (2d Dept. 2011) (“accepting the evidence as true and giving her the benefit of every reasonable inference, the wife failed to demonstrate, prima facie, that the husband, in committing the act alleged, acted with an ‘intent to harass, annoy or alarm’ ”). Rather, each of the alleged statements was made in the context of discussing issues related to the parties’ children and Plaintiff herself made similar statements and used similar language towards Defendant. Courts have determined that “[m]ere words alone are not enough to constitute the family offense of harassment.” Lisa T. v. K.T., 49 Misc 3d 847, 853 (Fam. Ct. 2015) (respondent’s emails to petitioner in custody dispute were not sent with the intention of harassment where respondent obtained a custody order giving him a legitimate reason to contact petitioner); see also People v. Dietze, 75 NY2d 47, 51 (1989) (“unless speech presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized”).
Family Court
New York was not the children’s “home state” within the meaning of Domestic Relations Law § 75-a(7), and New York did not have initial child custody jurisdiction under Domestic Relations Law § 76 where none of the children lived in New York within the six-month period before the commencement of the proceedings.
In Matter of E.P.,v. B.S., --- N.Y.S.3d ----, 2023 WL 6819194, 2023 N.Y. Slip Op. 23318 (Fam Ct, 2023) the father contended that New York lacked initial child custody jurisdiction because New York was not the “home state” of the children within the meaning of Domestic Relations Law § 75-a (7) because none of the children were living in New York for the six months immediately before the filing of the petitions in November 2022. Previous custody petitions had been filed in New York in 2017 and New York had issued temporary orders regarding custody and visitation in those proceedings. All the petitions filed in 2017 were dismissed in November 2022. The father pointed out that when the 2017 proceedings were commenced, none of the children resided in New York. For more than six months before the filing of the 2017 petitions, the children C. and A. had resided in Connecticut with the mother. Family Court held that since all the petitions filed in 2017 have been dismissed and the temporary orders vacated, the issue was not whether the court had initial child custody jurisdiction in 2017 when the parties filed those petitions, but rather whether the Court now had initial child custody jurisdiction on the petitions filed in 2022. None of the children lived in New York within the six-month period before the commencement of the proceedings. It was undisputed that the children C. and A. had been residing with the mother in New Jersey since 2019. As such, New York was not the children’s “home state” within the meaning of Domestic Relations Law § 75-a(7), and New York did not have initial child custody jurisdiction under Domestic Relations Law § 76.
October 11, 2023
Appellate Division, First Department
New York was the child’s home state, where the child had resided in New York for over six months prior to the mother filing for custody. Her relocation from Morocco to escape domestic violence was not wrongful removal of the child and her petition for custody was, therefore, properly commenced in New York.
In Matter of Geraldine H.T.B., v. Guillaume A.P.M.J., --- N.Y.S.3d ----, 2023 WL 6558919, 2023 N.Y. Slip Op. 05091 (1st Dept.,2023) the Appellate Division affirmed an order of the Family Court which held that New York had exclusive jurisdiction over the custody proceeding for the subject child under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The Family Court properly determined that New York was the child’s home state, based on the fact that the child had resided in New York for over six months prior to the mother filing for custody (see Domestic Relations Law §§ 75–a[7], 76[1][a], 76–a[1]). The mother’s relocation from Morocco to escape domestic violence was not wrongful removal of the child (see Domestic Relations Law § 76–g[4], Jacquety v. Baptista, 538 F.Supp.3d 325 [S.D.N.Y.2021]), and her petition for custody was, therefore, properly commenced in New York. This was not contradicted by the mother having filed a divorce petition in Morocco, as that petition did not seek custody of the child. Nor did the father filing a petition for reconciliation in Morocco constitute a custody proceeding under the UCCJEA, as that filing was not made in substantial conformity with the jurisdictional requirements of the UCCJEA (see Domestic Relations Law § 76[1]. As a matter of New York’s public policy to protect the victims of domestic abuse, Family Court’s conclusion that enforcing the Moroccan judgment would subject both the mother and the child to grave risk of harm was a proper exercise of Family Court’s discretion under the circumstances (see Domestic Relations Law §§ 75[2]; 75–d[3]).
Appellate Division, Second Department
While the Domestic Relations Law allows for deductions for “unreimbursed employee business expenses except to the extent said expenses reduce personal expenditures” such expenses are properly deducted from parental income in calculating child support obligations only when proven, usually by tax returns accompanied by records and receipts.
In Qazi v Qazi, --- N.Y.S.3d ----, 2023 WL 6452028, 2023 N.Y. Slip Op. 04970 (2d Dept.,2023) the parties were married in 1994 and had two children. The plaintiff commenced the action for a divorce in May 2016. Supreme Court, inter alia, imputed an annual income of $72,000 to the defendant for purposes of calculating child support, and, utilizing this figure, directed the defendant to pay $1,384.10 per month in basic child support, as well as 66% of the children’s unreimbursed medical and undergraduate college expenses. The Appellate Division held that Supreme Court’s discretionary determination to impute an annual income to the defendant of $72,000 for the purposes of calculating child support, based upon the defendant’s own admissions, was supported by the record. While the Domestic Relations Law allows for deductions for “unreimbursed employee business expenses except to the extent said expenses reduce personal expenditures” (Domestic Relations Law § 240[1–b][5][vii][A]), such expenses “are properly deducted from parental income in calculating child support obligations only when proven, usually by tax returns accompanied by records and receipts. As the defendant failed to prove his actual, current business expenses, it affirmed the judgment of divorce insofar as appealed from.
To ensure that waivers of the statutory provisions of the CSSA are truly knowingly made, Domestic Relations Law § 240(1–b)(h) requires that, in order to be valid, a stipulation must contain the required recitals
In Sayles v Sayles, --- N.Y.S.3d ----, 2023 WL 6452033, 2023 N.Y. Slip Op. 04968 (2d Dept.,2023) the parties were married in 1996 and had two children. In May 2012, the parties entered into a separation agreement in which they agreed that the defendant would pay child support of $1,200 per month for the parties’ two children, an amount that was specified in the agreement to be less than the presumptively correct amount of support that would have been calculated pursuant to the Child Support Standards Act ( CSSA), and also agreed that the defendant would pay child support of $600 per month upon the emancipation of the parties’ first child. In 2021, the plaintiff commenced the action for a divorce and moved, to set aside and vacate the child support provisions of the separation agreement requiring the defendant to pay $600 per month in child support upon the emancipation of the parties’ first child and to direct the defendant to pay the presumptively correct amount of child support for one child in accordance with the CSSA, arguing that the parties’ separation agreement failed to comply with the recital requirements of the CSSA (see Domestic Relations Law § 240[1–b][h]). The Supreme Court denied the plaintiff’s motion. The Appellate Division reversed. It held that to ensure that waivers of the statutory provisions of the CSSA are truly knowingly made, Domestic Relations Law § 240(1–b)(h) requires that, in order to be valid, a stipulation must recite that the parties have been made aware of the CSSA, and that the basic child support obligation provided for therein would presumptively result in the correct amount. Where the stipulation deviates from the basic child support obligation, it must specify what the presumptive amount would have been and the reason for the deviation”. Here the provisions in the parties’ separation agreement relating to the child support obligations with respect to one child did not contain the specific recitals mandated by the CSSA, and the record did not demonstrate that the plaintiff’s agreement to said provisions was made knowingly. Accordingly, the provisions were not enforceable.
The respondent in a civil contempt proceeding who faces the possibility of the imposition of a term of imprisonment has the right to the assignment of counsel upon a finding of indigence
In Hoffman v Hoffman, --- N.Y.S.3d ----, 2023 WL 6451999, 2023 N.Y. Slip Op. 04959 (2 Dept.,2023) the Appellate Division held that in general, the respondent in a civil contempt proceeding who faces the possibility of the imposition of a term of imprisonment, however short, has the right to the assignment of counsel upon a finding of indigence. Moreover, a parent has the statutory right to counsel in a proceeding in which it is alleged that he or she has willfully failed to comply with a prior child support order. (Family Ct Act § 262 [a] [vi]).
Supreme Court
Supreme Court Granted Comity to German Judgment. Duly recognized foreign judgments are immune from collateral attack in the New York courts by a party who, as here, properly appeared in the foreign divorce action, absent some showing of fraud or a violation of a strong public policy of the State.
In Application of Nicole P., 2023 WL 6528954 (Sup. Ct.,2023) Nicole P., sought an Order awarding her a Majauskas share, with pre- and post-survivorship benefits, of Respondent’s military retirement benefits, and pension benefits from his employment with General Electric. The parties entered into mediation which resulted in the execution of a settlement agreement, which was prepared in English, on April 28, 2017. Thereafter, the parties were advised that the Swiss Court would only accept documents written in German before a divorce could be granted. As a result, the parties had their executed separation agreement translated into German by a certified translator and executed the translated agreement on May 12, 2017. Because the parties did not have the ability to read or understand the German language, they were unable to personally verify the accuracy of the translated separation agreement.. The parties were represented by the mediator for the duration of the proceedings before the Swiss court. On or about September 15, 2022, Petitioner filed the application. Respondent argued that Petitioner waived any claim to his pension and military benefits based on the terms of the English version of the settlement agreement. The English agreement provided, in relevant part, as follows: *2 5. Dividing of pension funds “All USA pensions are divided according to NY law; this includes military pension and [Respondent’s] GE pension, and any other pensions and social security government pension[s].” After receiving Petitioner’s application, Respondent was advised by his Swiss attorney that the German version of the parties’ separation agreement did not contain an accurate translation of the pension provision in the English agreement. According to Respondent, the pension provision in the German agreement provided as follows: 5. Allocation of the pension fund “All US pensions are shared under New York State law, this includes the US Army Veteran’s Pension and his GE pension, as well as any other government pensions and AHV pensions.” Respondent commenced a proceeding in the Swiss court seeking to correct/amend the German version of the agreement due to the alleged translation mistake. The Swiss court issued a decision dismissing Respondent’s application and declared the German agreement to be legally valid and binding. The Court found that the German version of the parties’ agreement was controlling. Respondent petitioned the Swiss court regarding the differing translations of the pension provisions and the Swiss court held that the German agreement is the legally binding agreement between the parties. Furthermore, the parties’ Swiss divorce decree dated May 12, 2017, and entitled “Ruling of the President of the Court,” specifically stated that both the English and German versions of the parties’ separation agreement “are attached to this ruling as an integral part” but that the “German version is the decisive one.” Supreme Court held that New York courts will generally accord recognition to bilateral foreign judgments of divorce, including the terms and provisions of any agreements incorporated therein, under the doctrine of comity. No specific language is necessary to create an incorporation by reference. The court must look to the entire judgment of divorce and the surrounding circumstances. These duly-recognized foreign judgments are thereafter immune from collateral attack in the New York courts by a party who, as here, properly appeared in the foreign divorce action, absent some showing of fraud or a violation of a strong public policy of the State. The Court found no basis to disturb the Swiss court’s ruling that the German version of the separation agreement was a legally binding (see S.B. v. W.A., 38 Misc 3d 780, 798-99; Tal v. Tal, 158 Misc 2d 703, 706).
October 4, 2023
Appellate Division, First Department
Mother did not have a right to habeas corpus relief pertaining to the illegal detention of a child where the child is not present in New York
In Matter of Alexandra RR v Doris H, 2023 --- N.Y.S.3d ----, 2023 WL 6394632, 2023 N.Y. Slip Op. 04948(1st Dept.,2023) the Appellate Division held that the Family Court properly denied the mother’s petition for a writ of habeas corpus. As the petitions for writs of habeas corpus pertained to the illegal detention of a child by either parent, which is not present here [in New York] the mother did not have a right to habeas corpus relief (Domestic Relations Law § 70[a]; see Matter of Kiara B. v. Omar R., 147 AD3d 476 [1st Dept 2017]).
Appellate Division, Second Department
While an agreement is not unconscionable merely because, in retrospect, some of its provisions were improvident or one-sided, an agreement that might not have been unconscionable when entered into may become unconscionable at the time a final judgment would be entered.
In McEvoy v McEvoy, --- N.Y.S.3d ----, 2023 WL 6278671, 2023 N.Y. Slip Op. 04764 (2d Dept., 2023) the parties were married on September 13, 2014. Before their marriage, they entered into a prenuptial agreement dated July 2, 2014. The agreement stated, inter alia, that marital property would not be created unless the parties placed marital earnings into a joint account or titled property jointly. All property titled in an individual party’s name would remain separate property, including income earned during the marriage. Both parties also waived their right to maintenance. At the time of the agreement, the plaintiff was employed by Jewish Metropolitan Hospice and the defendant was employed by the New York City Department of Sanitation. The defendant entered the marriage with assets totaling approximately $355,000, while the schedule purporting to list the plaintiff’s assets remained blank. There were two children of the marriage, born in 2015 and 2019. The plaintiff became a stay-at-home parent after the birth of the parties’ first child. The plaintiff suffered a stroke on August 28, 2019. Shortly following her stroke, the plaintiff petitioned the Family Court for, inter alia, a parenting schedule, and the parties were subsequently granted joint physical custody of the children. In February 2020, the plaintiff commenced the action for a divorce and moved, inter alia, to set aside the parties’ prenuptial agreement. The defendant cross-moved for summary judgment on the validity of the prenuptial agreement. The Supreme Court granted the plaintiff’s motion to set aside the parties’ prenuptial agreement, awarded the plaintiff $2,885.94 per month in temporary maintenance and $10,000 in interim attorneys’ fees, but denied the plaintiff’s motion for an award of pendente lite child support. The Appellate Division observed that an unconscionable bargain is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense. While “an agreement is not unconscionable ‘merely because, in retrospect, some of its provisions were improvident or one-sided an agreement that might not have been unconscionable when entered into may become unconscionable at the time a final judgment would be entered” (Taha v. Elzemity, 157 A.D.3d 744, 745–746, 68 N.Y.S.3d 493). It found that the plaintiff sustained her burden of establishing that the prenuptial agreement was unconscionable. Based on the record, the plaintiff received no benefit from the agreement, as no marital assets were created during the marriage and the plaintiff relinquished all rights to any property or earnings titled in the defendant’s name. Enforcement of the agreement would result in the risk of the plaintiff becoming a public charge, as she had suffered a debilitating stroke, had been unemployed since the birth of the parties’ first child, and would be left largely without assets, while the defendant would retain approximately $942,000 in assets and continue making approximately $190,000 per year.
The Appellate Division also held that the Supreme Court erred in denying plaintiff’s motion for pendente lite child support. The Court of Appeals held that the Child Support Standards Act applies to shared custody cases and that child support in a shared custody case should be calculated as it is in any other case. Where neither parent has the child for a majority of the time, the parent with the higher income, who bears the greater share of the child support obligation, should be deemed the noncustodial parent for the purposes of child support. It was undisputed that the parties share physical custody of the children equally. The defendant was estopped from claiming that he was the primary physical custodian of the children for child support purposes, which was a contrary and inconsistent position to the position he took in motion practice The plaintiff was considered the custodial parent for purposes of child support, as she was the nonmonied spouse. The defendant was directed to pay to the plaintiff $2,885.94 per month in basic child support, as well as 80% of the children’s add-on expenses, during the pendency of this action.
The court properly took judicial notice of a functionally identical CPI index published by the government to replace the defunct CPI index specified in the prenuptial agreement to give effect to the parties’ stated intent. The discontinuance of the index specified in the prenuptial agreement did not render the subject clause unenforceable.
In Lin v Banko, 2023 WL 6278707 (2d Dept.,2023) the parties entered into a prenuptial agreement in July 2001 and married in August 2001. The prenuptial agreement established, inter alia, the plaintiff’s entitlement to a distributive award in an amount dependent upon the duration of the parties’ marriage as measured from the earliest of three alternative termination events, including, as relevant here, the “separation” of the parties or the commencement of an action for divorce. The prenuptial agreement also fixed maintenance of $50,000 per annum, payable monthly. This sum was to be adjusted according to a specified inflation index published by the U.S. Department of Labor. The plaintiff commenced this action for a divorce. Supreme Court conducted a nonjury trial and determined, inter alia, that, for the purposes of the prenuptial agreement, the marriage terminated on the commencement of this action, and that the 2018 “CPI for Urban Wage Earners and Clerical Workers, New York–Newark–Jersey City, NY–NJ–PA” index ( the 2018 Index) would be used to calculate the adjustments to the maintenance sum in place of the index specified in the prenup. The judgment of divorce, awarded the plaintiff maintenance of $6,216.66 per month, to be adjusted annually according to the 2018 Index, and awarded the plaintiff a distributive award of $850,000.
The Appellate Division affirmed. It held that contrary to the defendant’s contention, the credible evidence adduced at trial supported the Supreme Court’s determination that the parties did not separate in May 2016 and that therefore, the parties’ marriage terminated, for purposes of calculating the distributive award, on the day that the plaintiff commenced this action. The Supreme Court also correctly determined that the parties intended for annual cost of living adjustments to be applied to the defendant’s maintenance obligation. The parties expressly agreed that the “fairness and adequacy” of the maintenance sum depended on yearly adjustments to the amount of maintenance in line with increases to the cost of living. The court, therefore, properly rejected the defendant’s proffered interpretation of the prenuptial agreement as inconsistent with the parties’ intent, and properly took judicial notice of a functionally identical index published by the same government source to replace the defunct index specified in the prenuptial agreement to give effect to the parties’ stated intent. Contrary to the defendant’s contentions, the discontinuance of the index specified in the prenuptial agreement did not render the subject clause unenforceable.
Supreme Court
Supreme Court set aside judgment of divorce pursuant to CPLR 5015(a)(3) based on intrinsic fraud and restored the action to the calendar where the husband’s assertion that the wife did not have a social security number was false as was the sworn statement that there were no children of the marriage.
In Eyon G v Monica G, 2023 WL 6382649 (Sup. Ct., 2023) the parties were divorced pursuant to an Uncontested Judgment of Divorce, on default, based upon irretrievable breakdown of the marriage. Defendant-Wife contended that the Judgment of Divorce should be set aside because it was “based on lies” and that the action be restored to the calendar. She testified that she was never served, nor did she ever reside at the address listed on the affidavit of service. She also noted that she had a social security number and that the husband’s assertion that she did not have a social security number was false as was the sworn statement that there were no children of the marriage. The Court found her testimony to be credible. The Plaintiff testified that he commenced the divorce action; that he was referred to someone by the name of “Reynaldo” in Brooklyn to assist him in preparing the divorce paper; that he was given an “information sheet” to fill out which listed the name of a self-represented divorce company; that another individual named “Orlando” prepared and filed the divorce documents on his behalf and that neither Reynaldo nor Orlando asked him whether he had any children, although he had six (6) children. He testified that after Orlando prepared the documents he reviewed and signed the documents. The Court granted the motion. It observed that CPLR 5015 (a) (3) provides that “the court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct upon the ground of: fraud, misrepresentation, or other misconduct of an adverse party.” A defendant seeking to vacate a judgment of divorce has the burden of establishing, by admissible evidence, the existence of fraud, misrepresentation, or other misconduct on the plaintiff’s part sufficient to entitle him or her to vacatur. The Defendant met that burden.“Where a defendant seeks to vacate a default pursuant to CPLR 5015(a)(3) based on intrinsic fraud, he or she must establish a reasonable excuse for the default and a potentially meritorious defense to the action” (Mission Field Church, Inc. v. Lindsay, 214 AD3d 981, 982 [2d Dept 2023]). “It is well established that a party seeking to set aside a judgment on the basis of fraud “will not prevail by merely showing fraud in the underlying transaction but must show fraud in the very means by which the judgment was procured” (Cofresi v. Cofresi, 198 AD2d 321, 321 [2d Dept 1993]). Here, the Wife was able to establish a meritorious defense. The very means by which this Judgment of Divorce was procured was fraudulent. The Husband failed to offer a satisfactory explanation for this misrepresentation and appeared to shift blame to the individual who assisted him in preparing the divorce papers. The concealment was in effect also a fraud upon the Court. The Plaintiff-Husband filed a false affidavit pursuant to Penal Law § 175.30. The sworn, notarized statements submitted by the Plaintiff-Father to procure a Judgment of Divorce constituted “material factual statements that are false” within the meaning of 22 NYCRR 130—1.1(c). The plaintiff was sanctioned $500.00 for his frivolous conduct in filing a false instrument with the court. The motion to vacate the judgment was granted, the Judgment of Divorce was vacated, and action was restored to the contested matrimonial calendar.
Supreme Court found that in both New York and New Jersey, a marriage is formed when a couple obtains a marriage license and partakes in a wedding ceremony before a proper officiant at which the parties solemnly declare that they take each other as spouses. The parties satisfied these requirements.
In S.F., v. J.S., Slip Copy, 2023 WL 6382637 (Table), 2023 N.Y. Slip Op. 51033(U) Unreported Disposition (Sup. Ct.,2023) defendants motion to dismiss the action, contending that no valid marriage existed between the parties was denied, and summary judgment was granted in plaintiffs favor. The parties became engaged to marry on November 25, 2019. The parties had a religious wedding ceremony and party, which took place on June 21, 2021 at a wedding venue in New Jersey. Approximately one month prior to the wedding, the parties submitted a sworn Application for Marriage License to the New Jersey Department of Health. Page two of the License Application reflects that a wedding license was duly granted on May 18, 2021, and would expire on August 15, 2021. On June 21, 2021, the parties participated in a Jewish wedding ceremony witnessed by more than 200 friends and family. Before the ceremony took place under the chuppah (a Jewish wedding canopy), the men and women were kept in separate rooms. In the men’s room, an engagement contract was signed and then the parties’ mothers came in and broke a plate with a hammer as part of this contract. The parties’ Ketubah (a traditional Jewish marriage contract) was signed by Rabbi X and then two (2) witnesses, M.H. and E.P., both close friends of Defendant. Thereafter, the wedding ceremony took place under the chuppah. This was composed of two (2) parts - the kiddushin and the nissuin. First, the Rabbi asked several questions of the Defendant. When he agrees, he is asked to give the bride the ring that he owns. This “transfer of possession” is called “Kinyon,” and shows the consent of both parties to enter into marriage. Just before presenting the bride with the ring, the groom says “Behold, by this ring you are consecrated to me as my wife according to the laws of Moses and Israel.” Here, Defendant transferred the ring to Plaintiff and recited the statement. This statement, along with the act of Kinyon, makes the bride and groom married. After the chuppah ceremony, the parties went to a personal suite, guarded by two witnesses, to consummate the marriage. The wedding reception was held immediately after the ceremony. The parties disputed whether the wedding ceremony was only intended to be “symbolic.” Plaintiff disputed Defendant’s claim that they both agreed not to have the marriage license/certificate filed with the New Jersey Department of Health following the wedding. Ultimately, the certificate was never filed. Both parties claimed not to know where the unrecorded original certificate was located currently. The Court found that in both New York and New Jersey, a marriage is formed when a couple obtains a marriage license and partakes in a wedding ceremony before a proper officiant at which the parties solemnly declare that they take each other as spouses. The parties satisfied these requirements. However, in New York the failure to obtain a marriage license does not void a properly solemnized marriage (see Dom Rel § 25). The Domestic Relations Law establishes that where parties participate in a solemn marriage ceremony officiated by a clergyman or magistrate wherein they exchange vows, they are married in the eyes of the law (Persad v Balram, 187 Misc 2d 711, 713 [Sup Ct, Queens County 2001]). The Court found that the marriage was valid under New York and New Jersey law. It rejected defendant argument that the parties’ marriage was invalid under New York law because the rabbi who solemnized the marriage did not register with the Clerk of New York City. This claim has specifically been rejected by controlling appellate authority (See Shamsee v. Shamsee, 51 AD2d 1028 [2nd Dep’t 1976]. Defendant’s reliance on Ponorovskaya v. Stecklow (45 Misc 3d 597 [Supreme Court, New York County 2014]) was misplaced as the circumstances here were distinguishable. In Ponorovskaya, the court declined to apply New York law to find a marriage valid where the parties did not complete the application for a marriage license, had a “symbolic” ceremony in Mexico, and knew or should have known that they were not complying with the Mexican formalities required. Further, neither one had a justifiable “expectation that they were legally married,” and defendant “unequivocally knew both before and after the wedding that it did not constitute a valid marriage.” Nor was this case akin to Devorah H. v. Steven S. (49 Misc 3d 630 [Supreme Court, New York County 2015]). In Devorah H., the “wedding,” although conducted by a rabbi, was spontaneous and sudden, “bare-boned,” and lasted only a few minutes. Further, there may or may not have been witnesses, rings were not exchanged, and it is unclear if there was a Ketubah. In addition, the rabbi who officiated expected and advised the parties to obtain a marriage license and come back to him to conduct another ceremony, indicating his awareness that the impromptu ceremony had no legal import. Because the parties’ actions unquestionably satisfied the statutory requirements to form a marriage in both New Jersey and New York, there was no basis to dismiss this action.
September 27, 2023
Appellate Division, First Department
Appellate Divison holds that the lack of a post-judgment retainer agreement did not preclude recovery of counsel fees where the wife’s counsel substantially complied with 22 NYCRR 1400.3
In McLennan v McLennan, --- N.Y.S.3d ----, 2023 WL 6219225 (Mem), 2023 N.Y. Slip Op. 04724 (1st Dept.,2023), a post-judgment enforcement and modification proceeding, the Appellate Division held that the absence of a post-judgment retainer agreement did not preclude recovery of counsel fees here, where the wife’s counsel substantially complied with the requirements of 22 NYCRR 1400.3 and the wife clearly authorized counsel to act on her behalf.
Appellate Division, Second Department
Islamic Mahr agreement was unenforceable for lack of proper acknowledgment required by Domestic Relations Law § 236(B)(3), as it would be improper and unconstitutional to treat a Mahr agreement differently than other religious or nonreligious nuptial agreements
In Khan v Hasan, 2023 WL 6134161 (2d Dept., 2023) the parties were married in a civil ceremony on March 2, 2016, and subsequently held a religious ceremony on September 12, 2016. Their religious certificate of marriage, which was signed by two witnesses and an imam, but was not acknowledged, listed an amount of $50,000 for “Meher.” The parties assert that a Meher or Mahr agreement is an agreement between the parties to a marriage, under Islamic law, that the husband will pay to the wife a specified sum in the event of a divorce. Related to an action for a divorce the plaintiff commenced a plenary action to set aside the Mahr agreement. Supreme Court granted the plaintiff summary judgment and determined that the Mahr agreement was unenforceable for lack of acknowledgment. The Appellate Division affirmed. It pointed out that the Court may apply well-established principles of secular law to the dispute, thus permitting judicial involvement to the extent that it can be accomplished in purely secular terms” (Avitzur v. Avitzur, 58 N.Y.2d 108). It noted that Domestic Relations Law § 236(B)(3) states that 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. An unacknowledged agreement is invalid and unenforceable in a matrimonial action (Matisoff v. Dobi, 90 N.Y.2d 127). Here, pursuant to the neutral principles of law approach, the Supreme Court properly determined that the Mahr agreement was unenforceable for lack of proper acknowledgment, as it would be improper and unconstitutional to treat a Mahr agreement differently than other religious or nonreligious nuptial agreements in terms of procedural requirements. It rejected the defendant’s contention that she could cure the acknowledgment defect, as the Court of Appeals has held that “an acknowledgment must be executed contemporaneously, although not necessarily simultaneously, with the party’s signing of the agreement (Anderson v. Anderson, 37 N.Y.3d 444).
Family Court erred in determining, in effect, that proving sexual abuse was a prerequisite to proving neglect. Family Court also erred in finding that the child’s out-of-court statements about sexual abuse were uncorroborated. Independent statements requiring corroboration may corroborate each other.
In Matter of Jada W, --- N.Y.S.3d ----, 219 A.D.3d 732, 2023 WL 5251492, 2023 N.Y. Slip Op. 04318 (2d Dept.,2023) the Administration for Children’s Services (ACS) filed a petition against the mother alleging, inter alia, that she had neglected her then7–year–old daughter ( child) by failing to provide the child with proper supervision or guardianship in that she knew or should have known that her then 15–year–old son ( son) with whom she left the child was sexually abusing the child. ACS’s theory of neglect was that the mother neglected the child by leaving the child unattended in the supervision of the son even though the mother knew that the child had alleged that the son had sexually abused her. ACS argued that the mother neglected the child by allowing the son to be a caretaker of the child despite the concerns the mother had or should have had about the son’s history of sexual inappropriateness. After the fact-finding hearing, the Family Court determined that the testimony of each of the two caseworkers was credible and, without specification, that the mother was “mostly credible.” However, the court determined, in effect, that ACS was required to prove that the son was sexually abusing the child as a prerequisite to establishing that the mother neglected the child and that the child’s out-of-court statements to school personnel, the child’s statements to the caseworker that the son has had sex with her, and the statements the child made to her godmother were uncorroborated and thus dismissed the petition.
The Appellate Division reversed and made a finding that the mother neglected the child. It held that the Family Court erred in determining, in effect, that proving sexual abuse was a prerequisite to proving neglect and that ACS had not proven that the mother neglected the child. A finding of neglect is warranted when a parent allows the child to be harmed or placed in substantial risk of harm (see Family Ct Act § 1012[f][i]). A parent, who, by willful omission, fails to protect a child, and as a consequence places the child at imminent risk of harm, demonstrates a fundamental defect in understanding the duties and obligations of parenthood and creates an atmosphere detrimental to the physical, mental, and emotion well-being of the child.
Family Court also erred in finding that the child’s out-of-court statements about sexual abuse were uncorroborated. To establish its burden of showing by a preponderance of the evidence that the mother neglected the child, a petitioner may rely upon prior out-of-court statements of the child, provided that they are properly corroborated. Corroboration, for purposes of Article 10 proceedings, is defined to mean a]ny other evidence tending to support the reliability of the previous statements, including, but not limited to the types of evidence defined in this subdivision. The Appellate Division pointed out that in Matter of Nicole V., 71 N.Y.2d at 119, 524 N.Y.S.2d 19, 518 N.E.2d 914, the Court of Appeals found sufficient the testimony of the child’s caseworker, the child’s therapist, and the child’s mother, each of whom testified to out-of-court hearsay statements by the child describing incidents of sexual abuse by the respondent in that action. There, the Court found that other evidence in the proceeding, including testimony from an expert that the child’s behavior was symptomatic of a sexually abused child, was sufficient to corroborate the child’s out-of-court statements. The Court noted that the expert identified classic symptoms of child abuse such as a withdrawn demeanor, a typical avoidance mechanism adopted by persons suffering from posttraumatic stress, and the child’s knowledge of sexual activity far beyond the norm for her young age and that the child’s statements demonstrated specific knowledge of sexual activity. The Court also found that the testimony of the mother that the child had developed a vaginal rash after a visit with the respondent corroborated the child’s statements. Notably, the evidence here, like the evidence in Matter of Nicole V., showed that the child had specific knowledge of sexual activity despite her young age and, when asked at the hospital about the sexual abuse, her demeanor changed and she became quiet. Also notable in Matter of Nicole V. was the discussion that, although the out-of-court statements of a child relating to allegations of abuse or neglect must be corroborated to make a finding of abuse or neglect, in certain circumstances, particularly in child abuse proceedings, where the interests of the child are paramount, independent statements requiring corroboration may corroborate each other. This Court has found that evidence of a change in the demeanor of a child, sexual references by a child which are not age-appropriate, and detailed, consistent out-of-court statements of sexual abuse can be sufficient to corroborate a child’s out-of-court statements of sexual abuse. Here, the child’s statements to school personnel, her godmother, and the caseworkers were consistent and detailed about the sexual activity that the son had engaged in with her. In addition, both the mother’s acknowledgment at the hearing that the son admitted to her that he watched pornography in the child’s presence and the son’s admission to the first caseworker that he had his own pornography account directly corroborated the child’s statements that the son watched pornography in her presence. The child’s knowledge of sexual behavior despite her age—her depiction to school personnel of the son’s pumping motion with his penis and her discussion of sex, which she called “polo” to the first caseworker, describing it as where “a man and a woman they don’t have any clothes on and they put their private parts into each other,” was further corroboration of her out-of-court statements about the son’s sexual abuse of her. Moreover, the records submitted into evidence demonstrated that the child, who had been happy and talkative at the hospital, became withdrawn and quiet when asked about the sexual abuse. Under these circumstances, the Family Court should have found that the child’s out-of-court statements were sufficiently corroborated by the other evidence in the record that supported the reliability of the child’s out-of-court statements that the son had sexually abused her.
Appellate Divison, Third Department
In a proceeding alleging that the Child was wrongfully retained in New York in violation of the Hague Convention and seeking his return to Italy, Supreme Court erred in directing, without conducting a hearing, that the child be returned to Italy pending further order of the Italian court where the submissions raised genuine issues of material fact with respect to the “grave risk of harm” and “wishes of the child “exceptions invoked by the father.
In Matter of Luisa JJ., v. Joseph II., --- N.Y.S.3d ----, 2023 WL 6150233, 2023 N.Y. Slip Op. 04699 (3d Dept.,2023) Luisa JJ. ( mother) and Joseph II (father) were the parents of a child (born in 2013). In June 2019, the parties entered into a separation agreement, pursuant to which they would share joint legal and physical custody of the child beginning in July 2022. In November 2022, the parties entered into a stipulation modifying that arrangement and filed the stipulation in Italy. It provided that they would continue “[shared custody” of the child but that the child would remain in Italy with the mother and the father would have certain extended periods of parenting time in New York throughout the year. Shortly after the child’s arrival in New York in December 2022, he disclosed to the father that a minor relative of the mother’s boyfriend, who frequently stayed in the child’s home, had been sexually abusing him for several months. According to the father, the child stated that he told the mother about the abuse, but she did nothing to stop it. In light of the allegations and the child’s stated fear of returning to Italy, the father elected not to return the child to the mother on January 5, 2023. Italian authorities also began an investigation of the child’s allegations, and an Italian court issued an order on January 19, 2023 “provisionally arrang[ing] the exclusive custody and placement of the [child] with the father until the next hearing, reserving any further measures to the outcome,” and appointing an expert to evaluate the parties and the child. The father and the child did not return to Italy thereafter, and, by order dated April 6, 2023, the Italian court reiterated the need for in-person evaluations and adjourned the proceedings until December 12, 2023.
In May 2023, the mother commenced proceeding No. 1, alleging that the child was being wrongfully retained in New York in violation of the Hague Convention on the Civil Aspects of International Child Abduction and seeking his return to Italy. The father answered and interposed two defenses, provided for in the Hague Convention, that “there is a grave risk that [the child’s] return would expose [him] to physical or psychological harm or otherwise place the child in an intolerable situation” and that “the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of [his] views”. He also moved for, among other things, an evidentiary hearing. The father also commenced proceeding No. 2, requesting that the Supreme Court exercise temporary emergency jurisdiction under Domestic Relations Law § 76–c.
On July 28, 2023, the Supreme Court, without conducting a hearing or making any findings of fact or conclusions of law, ordered that the child be returned to Italy and remain there pending further order of the Italian court, subject to the provision that the mother “not expose the child to the company of” the boyfriend and/or the offending minor.
The Appellate Division reversed and remitted the matter to the Supreme Court to commence the required hearing. It found that the mother established that the father wrongfully retained the child in New York. It was undisputed that Italy is the child’s country of habitual residence. As for the retention, it was undisputed that, but for the father’s retention, the mother would have been exercising her custody rights to the child following a prompt return. Thus, as of January 6, 2023, the father was wrongfully retaining the child within the meaning of the Hague Convention. The Appellate Division agreed with the father that the Supreme Court abused its discretion in ordering the child’s return without making further inquiry as to the Hague Convention exceptions asserted. There is no law requiring “ ‘that discovery be allowed or that an evidentiary hearing be conducted’ as a matter of right in cases arising under the Convention”. That said, courts routinely hold hearings in circumstances such as these. It is also common to conduct an in-camera interview, direct and/or consider the results of expert evaluations, and/or appoint and hear from an attorney for the child who is the subject of a return petition ). Here, the submissions before the Supreme Court raised genuine issues of material fact with respect to both exceptions invoked by the father, warranting a hearing and some assessment of the child’s position.
As for the grave risk exception, the father’s affidavit reflected that the child made prompt, detailed disclosures of extended sexual abuse experienced in Italy. According to that affidavit, the child also reported that abuse to the mother, who did nothing to intervene or prevent it and instead “forced” the child to continue sleeping in the same bed as the offending minor. As a result, the child has developed a fear of returning to the mother’s custody in Italy. Supreme Court was also provided with a State Police incident report, which reflected that the child made consistent allegations regarding the abuse about a week following his disclosure to the father while interviewed by a child advocate. The submissions further included confirmation of the Italian criminal proceedings against the mother and the boyfriend for not only their alleged failure to prevent the abuse but their facilitation thereof, and there was no information in the record regarding the current status of those proceedings. Accepting these serious allegations as true it was an abuse of discretion to summarily reject the father’s first exception.
The Court observed that a “ ‘child’s views concerning the essential question of [his or her] return or retention may be conclusive, provided [the child] has ... attained an age and degree of maturity sufficient for [his or her] views to be taken into account’ ” The Hague Convention, applicable only to children under the age of 16, “does not set an age at which a child is automatically considered to be sufficiently mature”; it is instead accepted that maturity is a “fact-intensive and idiosyncratic ... inquiry” Although there is no established test for assessing maturity, indications of maturity may include “the child’s age ... [and] ability to express mixed feelings[ ] and ... plan past obstacles” (“[A] child’s ‘generalized desire’ to remain in the United States is ‘not necessarily sufficient to invoke the exception,’ ” but “ ‘particularized objections to returning to’ the former country of residence” should be considered. The submissions before the Supreme Court again included the father’s affidavit attesting to the fact that the child repeatedly advocated for himself with regard to the subject abuse, seeking help from both of his parents even after the mother’s alleged failure to intervene. The affidavit also made clear the child’s particularized fear of returning to the mother’s custody given that failure and her alleged facilitation of the sexual abuse that he suffered. Also before the court was the transcript of a telephone call between the child and the mother, in which the child, then nearly 10½ years old, articulately opposed the mother’s efforts to secure his return, citing the mother’s “lies” as to why he is in New York. Accepting the foregoing submissions as true, the father raised a genuine issue of fact as to the child’s objection and degree of maturity, and it was therefore a further abuse of discretion to summarily dispense with the father’s second exception.
September 20, 2023
Appellate Division, First Department
Although the facts warranting a new hearing were outside the record on appeal, the Appellate Division took notice of the new facts to the extent they indicated that the record was no longer sufficient to determine the mother’s relocation petition
In Matter of Emily F v Victor P., --- N.Y.S.3d ----, 2023 WL 5962329, 2023 N.Y. Slip Op. 04634 (1st Dept.,2023) the Appellate Division declined to disturb Family Court’s discretionary determination, made after a hearing and an in camera examination of the child, to deny the mother’s petition to relocate with the child to North Carolina. However, as the attorney for the child argued on this appeal, the mother’s motion to this Court for a stay pending appeal (a motion this Court granted), raised legitimate concerns about the adequacy of representation by her assigned counsel at the fact-finding hearing on her relocation petition. In her affidavit in support of her stay motion, the mother attested that counsel failed to adequately present evidence of the financial necessity that supported her decision to relocate. On account of these omissions, as well as the passage of time and intervening events that occurred since the court’s it reversed the court’s denial of the mother’s petition and remanded for a new hearing to determine what is in the child’s best interests. Although the facts warranting a new hearing were outside the record on appeal, given that changed circumstances have particular significance in child custody matters, it took notice of the new facts to the extent they indicated that the record was no longer sufficient to determine the mother’s relocation petition (see Matter of Michael B., 80 N.Y.2d 299, 317–318 (1992)).
Appellate Division, Second Department
Courts should normally exercise their discretion to grant a request for interim counsel fees made by the non-monied spouse, in the absence of good cause articulated by the court in a written decision
In Hutchinson v Hutchinson, 2023 WL 5943914 (2d Dept.,2023) the Appellate Division held, with regard to the Plaintiff’s renewed motion for interim counsel fees that “courts should ... normally exercise their discretion to grant such a request made by the non-monied spouse, in the absence of good cause ... articulated by the court in a written decision” (Prichep v. Prichep, 52 A.D.3d at 65–66, 858 N.Y.S.2d 667).” In support of her motion for leave to renew, the defendant submitted the required statement of net worth and documentary evidence of her income, which she had failed to provide in support of her prior motion. Although the defendant did not explain her failure to provide this evidence in support of her prior motion, the Supreme Court, should have either declined to hear that branch of her prior motion or should have denied it without prejudice to renew upon compliance with the applicable requirements (see 22 NYCRR 202.16[k][2], [5][ii]. Under the circumstances presented here, the court improvidently exercised its discretion in denying defendant’s motion for leave to renew her prior motion pursuant to Domestic Relations Law § 237 for an award of interim counsel fees. Moreover, taking into account all of the relevant circumstances, including the disparity in the parties’ respective incomes, the extent to which the plaintiff’s conduct has resulted in a delay of the proceedings, and other relief awarded to the defendant, an award of interim counsel fees to the defendant, as the nonmonied spouse, was warranted.
Appellate Divison, Third Department
Third Department holds that generally, joint legal custody is the preferred arrangement, unless the evidence demonstrates that the parties are unable to work together and communicate cooperatively.
In Matter of Chad KK., v. Jennifer LL., --- N.Y.S.3d ----, 2023 WL 5962188, 2023 N.Y. Slip Op. 04620 (3d Dept.,2023) the parties shared joint legal custody of the children, with the mother having primary residential custody and the father having parenting time. Following a hearing Family Court found that there was a change in circumstances since the 2019 order, and further determined that the best interests of the children warranted a continuation of joint custody with,, an increase in the younger child’s parenting time with the father. The Appellate Division held, among other things, that generally, joint legal custody is the preferred arrangement, unless the evidence demonstrates that the parties are unable to work together and communicate cooperatively. The record reflected that the relationship between the parties had been relatively contentious since their divorce; however, although the two engaged in the occasional squabble, their exchanges did not evidence a level of acrimony that rendered the joint custody award unworkable.
In demonstrating a change in circumstances to trigger a best interests analysis in a custody modification proceeding an order entered on consent is entitled to less weight.
In Matter of Maranda WW., v. Michael XX., --- N.Y.S.3d ----, 2023 WL 5962196, 2023 N.Y. Slip Op. 04622 (3d Dept.,2023) the Appellate Division observed that a party seeking to modify a prior order of visitation must first demonstrate a change in circumstances since the entry of such order so as to trigger an analysis as to whether modification would serve the best interests of the child. It noted that an order entered on consent, without a plenary hearing, is entitled to less weight.
September 13, 2023
Appellate Division, Second Department
Defendant who told the Court he intended to live-stream the proceedings, and on the adjourned date refused to respond to question by the court whether he was recording the proceedings, was properly held in default under 22 NYCRR 202.27.
In Spata v Kelly, --- N.Y.S.3d ----, 2023 WL 5251670, 2023 N.Y. Slip Op. 04331(2d Dept.,2023) the defendant’s parental access was suspended, pending a mental health evaluation. When he informed the Supreme Court that he intended to live-stream the proceedings the court informed the defendant that the only recording of the proceedings would be made by the official court reporter. When the parties appeared for the hearing on June 29, 2021, the Supreme Court asked the defendant if he was recording the proceedings, and he refused to answer based on his constitutional right against self-incrimination. The defendant was directed to leave the courtroom, and the court ruled that he was in default pursuant to 22 NYCRR 202.27. In an order dated July 22, 2021, the court, inter alia, denied the defendant’s motion for parental access. The Appellate Division affirmed. It held that defendant had no right to record the proceedings, without proper authorization (see Civil Rights Law § 52; 22 NYCRR 29.1). Those restrictions did not violate the United States Constitution or the New York State Constitution. Since this case involved a civil proceeding, his constitutional right against self-incrimination was not violated.
Family Court
Family Court held that an 8-year-old can be a respondent in a family offense proceeding. Article 8 of the Family Court Act does not dictate a minimum age for a respondent in a family offense proceeding
In V.M., v. C.M., Slip Copy, 2023 WL 5763557 (Table), 2023 N.Y. Slip Op. 50942(U) (Fam. Ct, 2023) the Family offense petition alleged, inter alia, that the child G.B. engaged in inappropriate sexual behavior against the child L.M. G. B. moved to dismiss the petition based on the fact that he was only 8 years old. He argued that due to a recent change in the law, an eight-year-old can no longer be prosecuted as a juvenile delinquent and therefore cannot be the subject of a family offense proceeding. Family Court held that the fact that criminal responsibility cannot be sustained against an 8-year-old has no bearing on a family offense proceeding in Family Court, which has exclusive jurisdiction where the respondent would not be criminally responsible by reason of age. Article 8 of the Family Court Act does not dictate a minimum age for a respondent in a family offense proceeding. The motion to dismiss the petition was denied.
September 6, 2023
An agreement that states that an obligation to maintain life insurance terminates upon the death of the insured is meaningless.
In Matter of Edelen, 2023 WL 5598679 (2d Dept.,2023) the Appellate Division, held that an agreement that states that an obligation to maintain life insurance terminates upon the death of the insured—just when the policy proceeds become payable—is meaningless. Such would be contrary to the basic tenets of contract interpretation that ‘a court should seek an interpretation which does not render any term or phrase of a contract meaningless or superfluous.
CPLR 3101(d)(1)(i) requires a party to identify the expert witnesses the party expects to call at trial but does not require a response at any particular time or mandate that a party be precluded merely because of noncompliance
In Giovinazzo-Varela v Varela, --- N.Y.S.3d ----, 2023 WL 5598665 (Mem), 2023 N.Y. Slip Op. 04441 (2d Dept.,2023) the plaintiff served the defendant with discovery demands, including a request for expert witness disclosure (see CPLR 3101[d]). The defendant, in his response, did not state that he intended to retain an expert. More than one year later, the defendant advised the Supreme Court that he intended to retain a vocational expert. In July 2020, the defendant sent the plaintiff a “Notice of Expert and Demand to Submit to Examination,” which informed the plaintiff that he intended to call Daniel Wolstein as a vocational expert witness at trial. He also provided the plaintiff with Wolstein’s curriculum vitae. In March 2021, after the note of issue and certificate of readiness were filed, the defendant served the plaintiff with a draft copy of Wolstein’s report, dated September 21, 2020. Supreme Court, inter alia, granted the plaintiff’s motion to preclude the defendant from offering the expert testimony of Wolstein and his report at trial. The Appellate Division reversed. It noted that CPLR 3101(d)(1)(i) requires a party, upon request, to identify the expert witnesses the party expects to call at trial but does not require a response at any particular time or mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute. The defendant served his expert notice before a trial date was set, and thus it was not untimely. Further, the notice was not deficient. It identified the expert witness, indicated that he was a vocational expert, and included the expert’s qualifications. Although the notice did not include the expert’s opinion and grounds for that opinion, that information was in the draft report that was received by the plaintiff before the trial date was set (see CPLR 3101[d]). The defendant also complied with the requirements set forth in 22 NYCRR 202.16(g) by disclosing his expert witness shortly after the expert had been retained, and serving the expert report more than 60 days before trial (see 22 NYCRR 202.16[g][2]).
August 30, 2023
Father’s contentions concerning the Support Magistrate’s order were unpreserved for appellate review, where the father failed to raise these contentions in his objections before the Family Court
In Licitra v Licitra, 2023 WL 5419571 (2d Dep’t, 2023) after the Support Magistrate dismissed the father's petition for modification of the support order the father filed objections in which he listed the reasons provided by the Support Magistrate for dismissing the petition, without raising any arguments addressed to the Support Magistrate’s order. Family Court denied the father’s objections on the ground that they were not specific within the meaning of Family Court Act § 439(e). The Appellate Division observed that the father’s contentions concerning the Support Magistrate’s order were unpreserved for appellate review because he failed to raise these contentions in his objections before the Family Court. Since the father’s objections to the Support Magistrate’s order were not specific within the meaning of Family Court Act § 439(e), the court properly denied his objections on that ground.
Support Order reversed where it contained language suggesting that the mother was advised of her right to seek counsel but the transcript of the hearing contained no proof that she was advised of this right or that she voluntarily and knowingly waived this right
In Moor v Moor, 218 A.D.3d 772, 193 N.Y.S.3d 250, 2023 N.Y. Slip Op. 03918 (2d Dept.,2023) the father filed a petition seeking, inter alia, an award of child support from the mother. After the father appeared with counsel and the mother appeared pro se the Support Magistrate, inter alia, in effect, granted the father’s petition and directed the mother to pay child support. Although the order contained language suggesting that the mother was advised of her right to seek counsel as required by Family Court Act § 433, the transcript of the hearing contained no proof that the mother was advised of this right or that she voluntarily and knowingly waived this right and proceeded without counsel. The Appellate Division held that the Support Magistrate erred in failing to advise the mother that she had an absolute right to be represented by counsel at the hearing at her own expense and that she was entitled to an adjournment to retain the services of an attorney. The Support Magistrate also erred in proceeding with the hearing without an explicit waiver of the right to counsel from the mother as there was no word or act in the record upon which the Family Court could have concluded that the mother explicitly waived that right. It remitted the matter to the Family Court for a new hearing and determination.
Absent unusual circumstances an AFC cannot overrule the decision-making authority of
a parent, and unilaterally take an appeal in a Family Offense Proceeding where the parent who is an aggrieved party has not done so.
In Joey L.F., v. Jerid A.F., --- N.Y.S.3d ----, 218 A.D.3d 1297, 2023 WL 4837130, 2023 N.Y. Slip Op. 04046(4th Dept., 2023) the petitioner filed a family offense petition on behalf of her son against the respondent. Respondent moved to dismiss the petition on the ground that it was facially insufficient. The Attorney for the Child (AFC) appealed from an order granting the motion. The Appellate Division held that under the circumstances of this case, the AFC lacked standing to bring an appeal on behalf of the subject child. It observed that generally speaking, the legislature has “demonstrated [its] preference for natural guardians,” such as petitioner, to represent their minor children in a proceeding. Given that preference, it held that an AFC cannot, in most Family Court Act Article 8 proceedings, unilaterally take an appeal where a parent or guardian who is an aggrieved party has not done so. In this case, the petitioner did not appeal even though it was her petition that was dismissed. It also noted that there was no evidence that the petitioner had “an interest adverse to the” subject child that would warrant termination of her role as guardian in the proceeding, thereby permitting the AFC to bring an appeal on the child’s behalf. To conclude that the AFC has standing to appeal where the petitioner has not done so would effectively force a parent—the individual who originated the proceeding on the subject child’s behalf—to litigate a position that they have abandoned. This would, in some cases, override a parent’s reasonable decision-making authority. Absent unusual circumstances not present here, an AFC cannot overrule the decision-making authority of a parent, and take an appeal where the parent has not done so. Because the AFC lacked standing here it dismissed the appeal.
August 23, 2023
A party seeking to vacate a default ordinarily must show a reasonable excuse for his or her default and a meritorious defense to the action or motion. In evaluating a proffered excuse, the court should take into account “the procedural history and particular facts of the case”.
In Davis v Davis --- N.Y.S.3d ----, 2023 WL 5251144, 2023 N.Y. Slip Op. 04301 (2d Dept.,2023) the Appellate Division reversed an order which granted a default judgment of divorce. The parties married in 1984 and had two adult children. In December 2018, the plaintiff commenced this action for a divorce and later admitted that she was served with a summons with notice. The Appellate Division pointed out that pursuant to CPLR 5015(a)(1), a party seeking to vacate a default ordinarily must show a reasonable excuse for his or her default and a meritorious defense to the action or motion. In matrimonial actions, it applies a liberal policy with respect to vacating defaults. In evaluating a proffered excuse, the court should take into account “the procedural history and particular facts of the case”. It found that Supreme Court improvidently exercised its discretion in denying the defendant’s motion. After admitting that she was served with the summons with notice, the defendant voluntarily and actively participated in the divorce proceedings, including entering into a partial stipulation of settlement concerning issues of equitable distribution, up until her absences from the preliminary conference on October 4, 2019, and from the inquest on November 22, 2019. The defendant submitted affidavits explaining that she did not receive the notice of inquest because she was in Florida caring for a hospitalized family member for much of July 2019 through February 2020, as well as screen shots of text messages from July 2019, between her and the plaintiff, in which she advised the plaintiff that she would be traveling to Florida “over the coming months” to care for her family member. Additionally, the record did not contain proof that the defendant was notified of any of the court dates in question in any manner other than by mail service at her New York address, nor does the record contain a return receipt for the certified mailing of the notice of inquest. Moreover, upon returning to New York in February 2020, timely retained counsel and moved to vacate the judgment of divorce. The defendant proffered a reasonable excuse for her default. She also established a potentially meritorious defense, since despite having comparable finances, among other things, the Supreme Court did not equalize the parties’ retirement accounts, distributed the defendant’s pension but not the plaintiff’s, and ordered the defendant to pay the plaintiff’s counsel fees.
Only competent, material and relevant evidence may be admitted in a fact-finding hearing. The evidence presented in support of the Family Offense petition, including the father’s testimony regarding statements made to him by his children, and a report from Child Protective Services, consisted primarily of inadmissible hearsay. He therefore failed to establish the allegations in the petition by competent evidence.
In Wedra v Greco, --- N.Y.S.3d ----, 2023 WL 5251467, 2023 N.Y. Slip Op. 04319(2d Dept.,2023) the Appellate Division observed that the determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court’s determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record (see Matter of Walsh v. Desroches, 118 A.D.3d at 814, 987 N.Y.S.2d 231; Matter of Harry v. Harry, 115 A.D.3d 858, 858, 982 N.Y.S.2d 379). ‘Only competent, material and relevant evidence may be admitted in a fact-finding hearing’ ” ( Family Ct Act § 834). Here, the evidence presented in support of the petition, including the father’s testimony regarding statements made to him by his children, and a report from Child Protective Services, consisted primarily of inadmissible hearsay. The father, therefore, failed to establish the allegations in the petition by competent evidence. Accordingly, the Family Court properly, in effect, denied the father’s family offense petition and dismissed that proceeding.
Seventeen year old Respondent in Family Offense Proceeding lacked the capacity to appear before the Family Court, rendering the proceeding void. As an infant, he could only appear by a parent or guardian as set forth in CPLR 1201.
In Cohen v Escabar, .--- N.Y.S.3d ----, 2023 WL 5251525, 2023 N.Y. Slip Op. 04313 (2d Dept.,2023) Jamie Cohen commenced this family offense proceeding against her ex-boyfriend, Louis Escabar, in 2021. At the time, Cohen was 16 years old and Escabar was 17 years old. Escabar did not appear for the hearing, but his attorney participated in his absence. The court found that Cohen had established that Escabar committed a family offense and issued an order of protection, from which Escabar appeals. The Appellate Division held that the order of protection was not entered upon Escabar’s default. Although Escabar failed to appear at the hearing, his counsel appeared on his behalf and participated in the hearing. It also held that Escabar lacked the capacity to appear before the Family Court, rendering the proceeding void. and reversed the order. It noted that a natural person’s status as an infant, could disqualify that individual from seeking relief in court. An “infant” is “a person who has not attained the age of eighteen years” (CPLR 105[j]; see Family Ct Act § 119[c]). “Unless the court appoints a guardian ad litem, an infant shall appear by the guardian of his [or her] property or, if there is no such guardian, by a parent having legal custody, or, if there is no such parent, by another person or agency having legal custody, or, if the infant is married, by an adult spouse residing with the infant” (CPLR 1201). Escabar, who was 17 years old when Cohen commenced this proceeding, was an infant; Family Ct Act § 119[c]). As an infant, he could only appear by a parent or guardian as set forth in CPLR 1201, and he lacked the capacity to appear on his own behalf . Neither the presence of Escabar’s mother in court, nor the assignment of counsel, was sufficient to satisfy CPLR 1201. Although Escabar’s mother was present at a prehearing court date, the court expressly prohibited her from appearing on Escabar’s behalf. Counsel’s representation of Escabar contravened CPLR 321 and 1201, and it therefore had “no legal effect”.
Family Court follows Rule of First and Third Departments that the ICPC “does not apply” to out-of-state noncustodial parents. It held that Court can issue a Temporary (or final) Custody Order providing custody to a relative who does not reside in New York without invoking the provisions of the Interstate Compact on the Placement of Children where the child has not been placed in foster care.
In Peggy RR., v. JenellL RR.,--- N.Y.S.3d ----, 2023 WL 5282677, 2023 N.Y. Slip Op. 23252 (Family Court,2023) the question was whether the Court can issue a Temporary (or final) Custody Order providing custody to a relative who does not reside in the State of New York without invoking the provisions of the Interstate Compact on the Placement of Children where the child has not been placed in foster care? The Court answered the question in the affirmative. The facts were stated by the Court as follows: Petitioner (maternal grandmother) filed a petition under Article 6 of the Family Court Act prior to the initiation of any application or petition being filed under Article 10 of the Family Court Act; the subject child was born in, and has since resided in the State of New York from the time of her birth; at Peggy RR. resides and is otherwise domiciled in the State of West Virginia; and that the subject child has never been placed in foster care or in the custody of the Department of Social Services or any other agency; and that the Department of Social Services attempted to submit a referral to the New York State Office of Children and Family Services - ICPC office to initiate a home study under the ICPC, and the NYS OCFS - ICPC office refused to accept the referral citing their position that the circumstances and procedural history of this case do not invoke the provisions of the ICPC. The Court noted that D.L. v. S.B., 39 N.Y.3d 81, 86, 181 N.Y.S.3d 154, (2022) the Court of Appeals observed that the Appellate Division Departments have disagreed regarding the applicability of the ICPC to noncustodial parents who reside outside New York. The Second Department has repeatedly applied the ICPC to out-of-state noncustodial parents, holding that where the custody of a child who is under the supervision of the Commissioner of Social Service is transferred to the custody of a parent or relative in another state, the provisions of the ICPC apply” (Matter of Alexus M. v. Jenelle F., 91 A.D.3d 648 [2d Dept. 2012]). By contrast, the First Department has expressly declined to follow the Second Department’s interpretation of the ICPC and, instead, has held that the ICPC “does not apply” to out-of-state noncustodial parents, reasoning that the plain language of the ICPC limits its application to placements in foster care or adoptive settings (Matter of Emmanuel B. [Lynette J.], 175 A.D.3d 49, 52,[2019]. The Third Department recently endorsed the First Department’s approach, albeit in dicta (see Matter of David Q. v. Schoharie County Dept. of Social Servs., 199 A.D.3d 1179, 1181 [3d Dept. 2021]).The Court found that the case at bar was not one where there has been a foster care placement, and as a result, the provisions of the Interstate Compact on the Placement of Children are not invoked.
August 16, 2023
Grandparents established the existence of “other like extraordinary circumstances” so as to afford them standing where, among other things, child lived with the grandparents for his entire life, expressed a strong desire to continue residing with them; parent suffered from severe substance abuse and were unable to care for the child
In Matter of Tuttle v Worthington, --- N.Y.S.3d ----, 2023 WL 5160120, 2023 N.Y. Slip Op. 04282 (4th Dept., 2023) Petitioner mother commenced a proceeding for modification of a prior order, entered more than three years earlier, that awarded joint custody of the subject child to her, the child’s father, and respondents Kristine Worthington and Donald Worthington, i.e., the child’s paternal grandparents, with “primary placement” of the child with the grandparents and “secondary placement” with the mother and with the father. In her amended petition for a change in custody, the mother sought modification of the child’s placement with primary placement of the child awarded to the mother.
Following a hearing, Family Court determined that the mother established a change in circumstances since entry of the prior order and that the grandparents failed to meet their burden of establishing extraordinary circumstances, without which they lacked standing to seek custody. The court determined that there was “no extended disruption of custody” because the mother had joint legal custody of the child since entry of the prior order and maintained consistent contact with him as well as secondary placement. The court further determined that there was no “abandonment or prolonged separation,” and, thus, no extraordinary circumstances. The Appellate Division held that those are not the only grounds upon which nonparents may establish standing to seek custody. The grandparents established the existence of “other like extraordinary circumstances” so as to afford them standing (Bennett, 40 N.Y.2d at 544, 387 N.Y.S.2d 821, 356 N.E.2d 277). It was undisputed that the child, who was eight years old at the time of the hearing, had lived with the grandparents for his entire life in the only home he has ever known; the child expressed a strong desire to continue residing with his grandparents and the AFC adhered to that position on appeal; the mother and the father both suffered from severe substance abuse problems for years and were unable to care for the child on their own; the mother failed to contact the child for a period of 18 months before resuming visitation in January 2018; the child’s half-sister also resided with the grandparents and the child developed a sibling relationship with her; and the grandparents have taken care of the child for most of his life and provided him with stability. Under the circumstances, it concluded that, even if the prolonged separation alone is entitled to little significance here, the combination of that factor along with others present on this record sufficiently established the existence of extraordinary circumstances, and that the court’s contrary determination is not supported by a sound and substantial basis in the record. It reversed and remitted the matter for a new hearing.
Father’s appeal had to be dismissed. Although he participated in the fact-finding hearing and his status as an intervenor was not contested, he was still a nonrespondent parent who has a limited statutory role and narrow rights under Family Ct Act § 1035(d) which applied on appeal.
In Matter of Rosalynne AA. --- N.Y.S.3d ----, 2023 WL 5108737, 2023 N.Y. Slip Op. 04242 (3d Dept.,2023) after the mother and the father separated, the mother relocated from Florida to New York with the children, and they resided in a single-wide trailer with respondent Thomas BB. ( boyfriend), with whom the mother had a relationship. Following a disclosure by the younger child that the boyfriend had inserted his fingers into her vagina, petitioner commenced proceeding No. 2 alleging neglect and sexual abuse by the boyfriend. Petitioner also commenced proceeding No. 1 alleging neglect by the mother based upon the allegations in proceeding No. 2, as well as allegations pertaining to the conditions of the home and the hygiene of the children. With the mother’s consent, the children were then temporarily placed in the care of the father. A fact-finding hearing ensued, at the conclusion of which petitioner moved to conform the pleadings to the proof by adding an allegation of educational neglect. In a July 2019 corrected order, Family Court granted petitioner’s motion and found, in proceeding No. 1, that the mother had neglected the children. The court dismissed the entire petition in proceeding No. 2. In a December 2019 order entered after a dispositional hearing in proceeding No. 1, the court placed custody of the children with the father for a period of one year and permitted him to relocate the children to Florida. Petitioner, the mother and the father separately appealed from the July 2019 corrected order. The mother also appealed from the December 2019 order. The Appellate Division held as an initial matter, that the father’s appeal from the July 2019 corrected order had to be dismissed. Although the father participated in the fact-finding hearing and his status as an intervenor was not contested, he was still a nonrespondent parent. As a nonrespondent parent, the father has a limited statutory role and narrow rights under Family Ct Act § 1035(d) to: (1) pursue temporary custody of his children during fact-finding, and (2) seek permanent custody during the dispositional phase. In view of this limited role, which applied on appeal, the father’s arguments directed toward the dismissal of the petition in proceeding No. 2 and the finding of neglect against the mother would not be considered. Furthermore, given that the father appealed only from the July 2019 corrected order and was awarded temporary custody of the children prior to the fact-finding hearing, he was not aggrieved thereby .
Supreme Court erred in granting, without a hearing, defendant’s cross-motion to enforce the terms of the modification agreement where irregularities on the face of the modification agreement itself called into doubt its authenticity.
In Del Vecchio v Del Vecchio, --- N.Y.S.3d ----, 2023 WL 5064229, 2023 N.Y. Slip Op. 04189 (2d Dept.,2023) the parties were married in 1998 and had one child together, who is now emancipated. The parties were divorced pursuant to a judgment dated February 22, 2013. The judgment of divorce incorporated, but did not merge, a separation agreement dated November 28, 2012. The separation agreement provided, among other things, that it could not be orally modified, and that “[only a statement in writing, signed and acknowledged with the same formality as this Agreement,” would modify the agreement. In August 2019, the plaintiff moved to, inter alia, hold the defendant in contempt due to his failure to pay maintenance and failure to cooperate in the sale of the marital residence, for an award of $52,000 in maintenance arrears from December 2012 to November 2017, to direct the defendant to immediately list the marital residence for sale, to direct the defendant to immediately return to the plaintiff certain items of personal property that remained in the marital residence, and for an award of counsel fees. The defendant cross-moved, inter alia, to enforce the terms of a written modification agreement dated February 27, 2013. The purported modification agreement proffered by the defendant read as follows: “This letter is an official document to guarantee [the plaintiff] and [the defendant] equal sharing of the profit of the home upon its final sale. Furthermore, it also guarantees that upon [the plaintiff’s] residing in the residence of a significant other, [the defendant] is no longer obligated to pay [the plaintiff] the court-ordered $900 per month for maintenance.” In an affidavit in support of his cross-motion, the defendant attested that the modification agreement was intended to memorialize the parties’ oral agreement to postpone the sale of the former marital residence until the parties’ child completed high school in June 2015, and to terminate the defendant’s maintenance obligation, in exchange for the plaintiff receiving a greater equitable distribution award from the parties’ equal division of the proceeds from the sale of the marital residence due to the payments that the defendant had continued to make on the property’s mortgage. The plaintiff submitted a reply affidavit in which she conceded that she had orally agreed that the defendant could “postpone the start” of his maintenance payments until after their child graduated high school, but after the child’s graduation occurred in June 2015, the defendant never remitted any payments. The plaintiff denied that she had agreed to any other modifications, denied that she had executed the alleged written modification agreement, and offered to produce witnesses to testify that her purported notarized signature on the written modification agreement was forged.
The Supreme Court denied the plaintiff’s motion and granted the defendant’s cross-motion to the extent of, inter alia, finding that the modification agreement was valid and enforceable. The Appellate Division held that Supreme Court erred in granting, without a hearing, the branch of the defendant’s cross-motion which was to enforce the terms of the modification agreement and in denying, without a hearing, the branch of the plaintiff’s motion which was for an award of maintenance arrears. It held that while something more than a bald assertion of forgery is required to create an issue of fact contesting the authenticity of a signature here, irregularities on the face of the modification agreement itself called into doubt its authenticity. The parties’ signatures, which were sworn before a notary but not acknowledged, reflected that the plaintiff allegedly signed the modification agreement on March 29, 2011, two years before the date of the agreement, and the defendant allegedly signed the agreement on February 4, 2014, three years after the plaintiff and one year after the date of the agreement. Moreover, the modification agreement was not acknowledged, as required by the plain terms of the parties’ separation agreement. Under such circumstances, it was error to conclude that no triable issue of fact existed as to the validity and enforceability of the written modification agreement.
Where neither the petition nor the supporting depositions provided sworn, nonhearsay allegations as to a physical injury sustained by the complainant, that count was jurisdictionally defective and had to be dismissed for failure to comply with Family Ct Act § 311.2[3]).
In the Matter of Yacere D. --- N.Y.S.3d ----, 2023 WL 4482188, 2023 N.Y. Slip Op. 03781(2d Dept.,2023) a juvenile delinquency proceeding Family Court, the Appellate Division held that count 5 of the petition, which alleged that he committed an act which, if committed by an adult, would have constituted the crime of assault in the third degree, was jurisdictionally defective. For a juvenile delinquency petition, or a count thereof, to be sufficient on its face, the factual part of the petition or of any supporting depositions must set forth sworn, nonhearsay allegations sufficient to establish, if true, every element of each crime charged and the alleged delinquent’s commission thereof” (Family Ct Act § 311.2[3]). Such allegations must be set forth in the petition or the supporting depositions (see Family Ct Act § 311.2[3]). “The failure to comply with this requirement constitutes a nonwaivable jurisdictional defect that deprives the court of subject matter jurisdiction to entertain the petition or count” . Here, neither the petition nor the supporting depositions provided sworn, nonhearsay allegations as to a physical injury sustained by the complainant named in count 5. Accordingly, that count was jurisdictionally defective and had to be dismissed.
Allocution in juvenile delinquency proceeding was fatally defective because Family Court failed to comply with Family Ct Act § 321.3(1) where neither respondent nor his mother were informed of “the exact nature of his placement outside of the home or its possible duration
In Matter of Tashawn MM.,--- N.Y.S.3d ----, 2023 WL 4353583, 2023 N.Y. Slip Op. 03745 (3d Dept.,2023) a juvenile delinquency proceeding was commenced against respondent in March 2022, alleging that respondent had committed acts in November 2021 that, if committed by an adult, would constitute the crimes of burglary in the second degree and criminal possession of stolen property in the third degree. Thereafter, in satisfaction of the petition, respondent admitted to acts which, if committed by an adult, would constitute the lesser offense of criminal possession of stolen property in the fourth degree. Family Court issued an order finding that respondent had engaged in that conduct, as well as an order transferring the proceeding to Tompkins County for disposition. Following a dispositional hearing in Tompkins County, Family Court placed respondent in the custody of the Office of Children and Family Services for a period of 12 months. The Appellate Division reversed. It found that the petition was jurisdictionally adequate to support respondent’s admission to acts constituting the lesser offense of criminal possession of stolen property in the fourth degree. However, as petitioner conceded, the allocution in which respondent admitted to those acts was fatally defective because Family Court failed to comply with the requirements of Family Ct Act § 321.3(1). At the time of his admission, Family Court commented on some possible dispositions including being “placed outside of [his] home ... for a period of time.” Neither respondent nor his mother were informed of “the exact nature of his placement outside of the home or its possible duration” (Family Ct Act § 321.3[1][c]). Inasmuch as the provisions of Family Ct Act § 321.3(1) are mandatory and cannot be waived, the order had to be reversed.
August 9, 2023
The Parties should be given an opportunity to present any arguments concerning an application to withdraw a Neglect Petition, such as the effect upon a child’s welfare, whether prejudice should attach to the discontinuance or whether another party should be permitted to commence a neglect proceeding.
In Matter of Lauren X.,,--- N.Y.S.3d ----, 2023 WL 4353635, 2023 N.Y. Slip Op. 03732 (3d Dept.,2023) in May 2021, petitioner a neglect petition alleging, among other things, that the child had been completely absent from school since the end of March 2021. During the pendency of the proceedings, the petitioner interviewed the child in August 2021. Then, on December 6, 2021, the petitioner transmitted a letter by email to Family Court, counsel for the respondent, counsel for the father and the attorney for the child (AFC) requesting to withdraw the petition without prejudice and to cancel the fact-finding hearing scheduled for December 14, 2021. That same day, the court issued an order granting the petitioner’s request and dismissing the neglect petition. The AFC appealed. The Appellate Division observed that whether an application to discontinue an action pursuant to CPLR 3217(b) should be granted lies within the sound exercise of the court’s discretion, and such should be entered upon terms and conditions, as the court deems proper”. It held that Family Court erred in granting the petitioner’s application to dismiss the neglect petition without allowing any time for objections to be raised. Ordinarily, a party cannot be compelled to litigate and, absent special circumstances, discontinuance should be granted” (Tucker v. Tucker, 55 N.Y.2d 378, 383,[1982]). However, one should be given an opportunity to present any such special circumstances or any other arguments concerning the application, such as the effect upon a subject child’s welfare, whether prejudice should attach to the discontinuance or whether another party should be permitted, in the court’s discretion, to commence a neglect proceeding (see Family Ct Act § 1032[b]). Because Family Court dismissed the petition without allowing the parties, including the father as a nonrespondent parent, to present any arguments regarding the petitioner’s application for a discontinuance, it remitted the matter to allow them the opportunity to do so.
Family Court may adjourn a fact-finding hearing for good cause shown on its own motion, and such determination is a matter resting within the court’s sound discretion
In Matter of Nina TT, --- N.Y.S.3d ----, 2023 WL 4353601, 2023 N.Y. Slip Op. 03737(3d Dept.,2023) the Appellate Division affirmed an order which granted petitioner’s application to adjudicate the subject child to be abandoned, and terminated respondent’s parental rights. It rejected the Respondents argument that that, even though he did not request an adjournment, Family Court abused its discretion in failing to adjourn the fact-finding hearing on its own initiative to allow him to testify. It noted that Family Court may adjourn a fact-finding hearing for good cause shown on its own motion,” and such determination is a matter resting within the court’s sound discretion (Family Ct Act § 626[a]). The right to be present is not absolute and must be balanced with the child’s right to a prompt and permanent adjudication. Here, respondent failed to appear at the continued fact-finding hearing that had been scheduled for over a month, despite speaking with his counsel the morning of the hearing and advising her that he would be in attendance. Although he also told her that he was attending a funeral that morning, he did not request an adjournment or raise such a claim at the dispositional hearing that he later attended. The continuation of the fact-finding hearing was pursuant to his request after he withdrew his intention to sign prepared conditional judicial surrender documents. In scheduling the continuation, Family Court made it clear that the matter would proceed in his absence and reminded him of the same two days before the hearing. More importantly, the child had been in foster care since before her first birthday and remained for over three years with a family that desired to adopt her. Respondent had not had contact with the child since November 2018 and the abandonment proceeding continued for nine months, where respondent failed to appear on two occasions and failed to contact his assigned counsel before a third appearance resulting in an adjournment.
Failure to advise Respondent of right to be present required reversal of delinquency adjudication. Respondents in juvenile delinquency proceedings have a constitutional and statutory right to be present at all material stages of court proceedings, including fact-finding hearings
In Matter of Timar P., --- N.Y.S.3d ----, 217 A.D.3d 1591, 2023 WL 4284925, 2023 N.Y. Slip Op. 03654 (4th Dept.,2023) a juvenile delinquency proceeding, the Appellate Division agreed with the Respondent that the court violated his constitutional and statutory right to be present at the fact-finding hearing. It reversed the order and remited the matter to Family Court for further proceedings on the petition. Respondents in juvenile delinquency proceedings have a constitutional and statutory right to be present at all material stages of court proceedings, including fact-finding hearings (see US Const 6th Amend; NY Const, art I, § 6; Family Ct Act § 341.2 [1])). Respondents may, however, waive the right to be present at such proceedings. In order to effect a voluntary, knowing and intelligent waiver, the respondent must, at a minimum, be informed in some manner of the nature of the right to be present at the fact-finding hearing and the consequences of failing to appear’ for that hearing. Here, the court did not advise respondent that he had a right to be present at the fact-finding hearing and that the consequence of his failure to appear would be that the fact-finding hearing would proceed in his absence. It therefore concluded on the record that there was no voluntary, knowing, and intelligent waiver of respondent’s right to be present at the hearing.
August 2, 2023
Appellate Division, First Department
Age 29 Law allows unmarried children through age 29, regardless of financial dependence, to be covered under a parent’s group health insurance policy
In B.D.,v. E.D.,--- N.Y.S.3d ----, 2023 WL 4770159, 2023 N.Y. Slip Op. 03971(1st Dept, 2023) the Appellate Division observed New York’s Age 29 Law, which was effective approximately one year before the Affordable Care Act, amended various sections of the State’s Insurance Law to “expand[ ] access to health insurance by allowing unmarried children through age 29, regardless of financial dependence, to be covered under a parent’s group health insurance policy. Specifically, the Age 29 Law “expands access to health insurance through a COBRA-like benefit for young adults by requiring commercial insurers, non-profit corporations, and HMOs to offer an option to continue coverage for unmarried young adults through age 29, regardless of financial dependence, under a parent’s group health insurance policy. Under the Age 29 Law, a parent’s health insurance serves as the basis for coverage for an eligible adult child who has otherwise aged off of the parent’s policy.
Appellate Division, Second Department
Child Support Order reversed where Support Magistrate erred in failing to advise the pro se mother that she had “an absolute right to be represented by counsel at the hearing at her own expense and that she was entitled to an adjournment to retain the services of an attorney
In Moor v Moor, --- N.Y.S.3d ----, 2023 WL 4751946, 2023 N.Y. Slip Op. 03918 (2d Dept.,2023) the parties had previously agreed to share custody of the child and to waive an award of child support from each other. However, in October 2021, the father filed a petition seeking, inter alia, an award of child support from the mother given the change in circumstances since he had sole custody of the child since July 2020. The parties appeared by telephone before a Support Magistrate on February 3, 2022. The father appeared with counsel and the mother appeared pro se. the Support Magistrate, inter alia, in effect, granted the father’s petition and directed the mother to pay child support of $319.32 bi-weekly. Although the order contained language suggesting that the mother was advised of her right to seek counsel as required by Family Court Act § 433, the transcript of the hearing contained no proof that the mother was advised of this right or that she voluntarily and knowingly waived this right and proceeded without counsel. Family Court, denied the mother’s objections and directed the mother to pay child support of $319.32 bi-weekly. The Appellate Division held that the Support Magistrate erred in failing to advise the mother that she had “an absolute right to be represented by counsel at the hearing at her own expense and that she was entitled to an adjournment to retain the services of an attorney. The Support Magistrate further erred in proceeding with the hearing without an explicit waiver of the right to counsel from the mother as there is no word or act in the record upon which the Family Court could have concluded that the mother explicitly waived that right. It remitted the matter to the Family Court for a new hearing and determination.
There is no express requirement to submit certified copies of birth certificates or death certificates in a SIJS proceeding under Family Court Act § 661(a).
In Matter of Anuar S.A.O. --- N.Y.S.3d ----, 217 A.D.3d 869, 2023 WL 4095927, 2023 N.Y. Slip Op. 03353 (2d Dept.,2023) Petitioner, a friend of the minor child’s family, commenced aproceeding to be appointed as the guardian of the child and subsequently moved for the issuance of an order enabling the child to petition the United States Citizenship and Immigration Services (USCIS) for special immigrant juvenile status. The Family Court dismissed the guardianship petition and denied the motion. The Appellate Division held that the family court’s failure to conduct a hearing or consider the child’s best interests before dismissing the guardianship petition and denying the petitioner’s immigration-related motion was error requiring remittance. It held that contrary to the Family Court’s determination, there is no express requirement to submit certified copies of birth certificates or death certificates in a proceeding such as this under Family Court Act § 661(a). Since the court dismissed the petition without conducting a hearing or considering the child’s best interests, it remitted the matter to the Family Court for a new determination.
Appellate Division, Third Department
The rebuttable presumption that counsel fees shall be awarded to the less monied spouse, can be rebutted given the amount of the equitable distribution, maintenance, and substantial interim award.
In McGovern v McGovern, --- N.Y.S.3d ----, 2023 WL 4769188, 2023 N.Y. Slip Op. 03956 2023 WL 4769188 (3d Dept.,2023) Plaintiff (wife) and defendant ( husband) were married in 1997 and had two children (born in 1999 and 2002). In 2014, the husband abandoned the marital residence, but the parties reconciled until 2017, when the husband again left the marital residence, and the wife commenced this action for divorce. The wife thereafter moved for an order of temporary support, requesting temporary maintenance, child support, counsel fees, and a portion of the fee to hire a forensic accountant to review the husband’s finances. Based on the parties’ expenses, Supreme imputed an income of $300,000 to the husband and ordered that the husband pay the wife $2,000 a month in maintenance and $3,275.95 a month in child support. The court also ordered the husband to pay the wife $7,100 in counsel fees and $5,000 toward the retention of the wife’s forensic accountant. Following the trial, Supreme Court found that the pendente lite order was based on erroneous representations in the parties’ respective statements of net worth, imputed an income of $85,000 to the husband, and recalculated the child support and maintenance awards. The court awarded the wife the marital residence and ordered the husband to pay the wife a distributive award of $419,517.45 – equivalent to 45% of the value of his businesses, minus certain credits such as his overpayment of pendente lite child support and maintenance. The court also ordered him to pay child support for the youngest child until her emancipation. The Appellate Division affirmed.
The Appellate Division, inter alia, rejected the wife’s argument that the value of her 45% distributive award should have been higher, as McGovern Enterprises should have been valued at $2,060,000, the sum of the appraised value of the buildings it owned, rather than the $1,280,666 valuation Supreme Court determined based on testimony and a report by the husband’s tax expert. Supreme Court found that the wife provided only the valuation of the buildings themselves, which did not equate to a valuation of McGovern Enterprises as a whole. Instead, the court relied on the tax expert’s testimony that, while McGovern Enterprises would recoup $1,984,000 in a hypothetical sale of its properties, it would incur $703,334 in taxes from such a sale, leaving the value of the business at the difference, $1,280,666. The expert’s calculations, accounting both for the appraised value of McGovern Enterprises’ buildings and the costs of liquidating these assets, painted a more complete picture of the business’s value than did the mere buildings’ appraised values. As the wife “presented no expert testimony that would support a different valuation,” and Supreme Court credited the expert’s report, the wife failed to prove that McGovern Enterprises was worth more than $1,280,666
The Appellate Division rejected the wife’s request to reverse Supreme Court’s determination that the husband’s self-directed IRA, which included 970 Broadway, Albany was his separate property. Separate property includes “property acquired before marriage,” as well as “property acquired in exchange for ... separate property”. The testimony of the husband and the bookkeeper, which the Supreme Court found credible, showed that the husband’s self-directed IRA was established using funds transferred from an account he established in 2005, which itself contained funds from an account he created in 1983, before the parties’ marriage. While the husband did transfer money between his other accounts and 970 Broadway, the record evidence demonstrated that those sums were rent owed to 970 Broadway. Further, the husband’s testimony, as well as his bank records, showed that he made no contributions to his self-directed IRA during the marriage. Therefore, Supreme Court did not err in determining that his self-directed IRA, which included 970 Broadway’s properties, was the husband’s separate property, as he showed that the properties owned by 970 Broadway were acquired with premarital assets.
The wife challenged the Supreme Court’s determination that she was not entitled to maintenance, claiming that she should have been awarded $3,108 in monthly maintenance for eight years, retroactive to the date of commencement, based on the husband’s $300,000 imputed income and the marital standard of living. The record supported Supreme Court’s determination that the wife was not entitled to maintenance. The wife was employed at the time of trial, earning $76,000 a year with healthcare benefits, and she was awarded the marital residence, which was fully paid off other than a $100,000 line of credit taken out on the property by the parties. The husband’s imputed income was $85,000, and the evidence showed that he had taken a $200,000 loan from 970 Broadway to pay for the pendente lite maintenance. Based upon the Supreme Court’s proper consideration of the factors and the totality of the circumstances herein – including the distributive award of $419,517.45 – it did not abuse its discretion in declining to award maintenance to the wife.
Supreme Court found that, based on the husband’s imputed $85,000 yearly salary and the mother’s $76,000 yearly salary, the husband was responsible for $1,635.36 monthly in child support until the oldest child’s emancipation in May 2020, and, following her emancipation, $1,112.05 monthly for support of the youngest child. However, because the husband had paid his pendente lite child support obligation, premised on an improperly-imputed income of $300,000, until August 2021, well past the oldest child’s emancipation, the court determined that he was entitled to an $86,552.97 credit for child support. The court then found that this overpayment covered the husband’s obligation for both children’s college expenses but not for their unpaid medical expenses – $5,292.45. Based on these calculations, the court subtracted the credit from the wife’s distributive award and ordered the husband to pay the children’s unpaid medical expenses and $1,112.05 in monthly child support for the youngest child until her emancipation. Having reviewed the record evidence, it found no error in the court’s child support calculations or its decision to credit the husband’s child support o
The Appellate Division rejected the wife’s argument that Supreme Court erred in declining to award her counsel fees. “Although there is a rebuttable presumption that counsel fees shall be awarded to the less monied spouse, in exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties positions. However, this presumption can be rebutted given the amount of the equitable distribution, maintenance, and substantial interim award). In light of the size of the wife’s distributive award, the fact that her yearly income was comparable to the husband’s, and the interim relief she was awarded, including an improperly high temporary maintenance award and fees for an expert witness she never called, Supreme Court did not abuse its discretion in denying the wife’s request for counsel fees.
Appellate Division, Fourth Department
Although there is authority to award a payor spouse credit for carrying costs on a marital residence, where the husband resided in the marital residence during the pendency of the proceeding there was no error in declining to award him credits for those payments.
In Lisowski v Lisowski, --- N.Y.S.3d ----, 2023 WL 4837709, 2023 N.Y. Slip Op. 04016 (4th Dept., 2023) the husband commenced this action in February 2018, and a temporary order dated August 14, 2018, required the husband “to pay all of the expenses he has paid throughout the marriage” except for the cellular telephone phone bills for the wife and the parties’ three children. The husband had been paying all of the household expenses and $300 per week to the wife since March 2018. The husband contended on his appeal, among other things, that he should have been credited for the expenses that he paid during the pendency of the divorce action and that the court erred in computing the number of months for which he would receive retroactive credit for the $300 weekly payments to the wife. The Appellate Division concluded that the Referee, and by adoption, the court, did not err in declining to credit him for household expenses he paid during the pendency of the divorce. Although there is authority to award a payor spouse credit for carrying costs on a marital residence, the husband, here, resided in the marital residence during the pendency of the proceeding, and there was no error in declining to award him credits for those payments. Since there is authority to award a spouse retroactive credit for voluntary payments made before any temporary order was issued, the award related to “unallocated support” could be credited against the ultimate maintenance award. The Appellate Division concluded that the husband was entitled to a credit against his maintenance obligation for all of the $300 weekly payments he made to the wife.
Under the circumstances of this case, the AFC lacked standing to bring an appeal on behalf of the subject child. An AFC cannot, in most Family Court Act article 8 proceedings, unilaterally take an appeal where a parent or guardian who is an aggrieved party has not done so.
In Joey L.F. v. Jerid A.F., --- N.Y.S.3d ----, 2023 WL 4837130, 2023 N.Y. Slip Op. 04046 (4th Dept., 2023) the petitioner filed a family offense petition on behalf of her son (subject child) against the respondent. Respondent moved to dismiss the petition on the ground that it was facially insufficient. The Attorney for the Child (AFC) appealed from an order granting the motion. The Appellate Division concluded that under the circumstances of this case, the AFC lacked standing to bring an appeal on behalf of the subject child. It pointed out that generally speaking, the legislature has demonstrated its preference for natural guardians, such as petitioner, to represent their minor children in a proceeding. Given that preference, it concluded that an AFC cannot, in most Family Court Act Article 8 proceedings, unilaterally take an appeal where a parent or guardian who is an aggrieved party has not done so. In this case, the petitioner did not appeal even though it was her petition that was dismissed. The Court noted that there was no evidence that the petitioner had “an interest adverse to the” subject child that would warrant termination of her role as guardian in the proceeding, thereby permitting the AFC to bring an appeal on the child’s behalf (Bluntt, 291 A.D.2d at 113, 737 N.Y.S.2d 471). To conclude that the AFC has standing to appeal where the petitioner has not done so would effectively force a parent—the individual who originated the proceeding on the subject child’s behalf—to litigate a position that they have abandoned. This would, in some cases, override a parent’s reasonable decision-making authority. For instance, a parent who commenced a Family Court Act article 8 proceeding as the child’s guardian may decide that further litigation is unwise because, to substantiate the petition, the child would have to testify and be retraumatized in the process. In short, absent unusual circumstances not present here, an AFC cannot overrule the decision-making authority of a parent, the party the legislature prefers to act as the child’s guardian and take an appeal where the parent has not done so. Consequently, because the AFC lacked standing here, it dismissed the appeal.
July 26, 2023
A spouse is entitled to a credit for her contribution of separate property toward the purchase of the marital residence. While the wife did not provide a complete paper trail the only possible source for that money was the account that was set up by the wife’s father in his daughter’s name. Although billing records to support the wife’s counsel fee application was inadequate, given the husband's disruption, prolonging of the proceedings, and obstreperous behavior, the Appellate Division declined to reduce the counsel fee award.
In Yentis v Yentis, --- N.Y.S.3d ----, 2023 WL 4628521, 2023 N.Y. Slip Op. 03886 (1st Dept.,2023) the Appellate Division held, inter alia, that Supreme Court providently exercised its discretion in awarding the wife a separate property credit of $150,000 for the purchase of the marital apartment. It is well settled that a spouse is entitled to a credit for his or her contribution of separate property toward the purchase of the marital residence , including any contributions that are directly traceable to separate property . While the wife did not provide a complete paper trail documenting the source of the money used for the down payment and closing costs, the record supported the conclusion that the only possible source for that money was the premarital Paine Webber brokerage account that was set up by the wife’s father in his daughter’s name and into which the father had been contributing since she was a child.
The Appellate Division found that imputing an additional $98,000 to the husband’s income for the purposes of calculating child support was not supported by the record. The court based the husband’s child support obligation on his 2015 tax return, but then imputed the additional $98,000 based on evidence that the husband took home approximately that amount in cash in 2014. However, the husband testified that he reported his cash earnings, as reflected on his tax return, and there was no evidence to contradict this. It found that the husband’s income for CSSA purposes was $141,526 and that In view of the children’s reported expenses and comfortable living standard during the marriage, it was appropriate to calculate child support on total combined parental income of $295,009, resulting in the husband contributing $2,950 in monthly basic child support.
The Appellate Division found that the Court providently exercised its discretion in awarding the wife $125,000 in counsel fees. While it agreed with the husband that the billing summary submitted to support the wife’s counsel fee application was inadequate, given the Referee’s findings as to the husband and his counsel’s disruption of the proceedings, prolonging of the proceedings, and overall obstreperous behavior, it declined to reduce the fee award.
The wife was liable for 43% of the collateral mortgage on the marital apartment to which was used to secure a line of credit for the husband’s business. The wife’s financial contributions were explicitly factored into awarding her 43% of the value of the business.
Although the court accepted the father’s proof that he had been hospitalized for spinal surgery it rejected his testimony that he was unable to work after being discharged from the hospital, and imposed a 6 month prison sentence concluding that there was no evidence that he was totally unable to work at all.
In Benson v Sherman, -- N.Y.S.3d ----, 2023 WL 4002706, 2023 N.Y. Slip Op. 03277
(3d Dept.,2023) Family Court confirmed the Support Magistrate’s findings, and found that the father willfully violated the support order and imposed the recommended prison six-month sentence. Although the court accepted the father’s proof that he was hospitalized for back surgery between October and November 2021, it rejected his testimony that he was unable to work after being discharged from the hospital, concluding that, while he “might have some limitations as [to] the kind of work he [could] do,” there was no evidence that he was unable to work at all. The medical evidence confirmed that the father , who had undergone spinal surgery, was unable to work during his extended hospitalization and further demonstrates that he had significant physical limitations preventing him from performing manual labor following his discharge. He also remained under continuing care to address a serious infection. These factors, coupled with his efforts to obtain disability benefits and his potential eviction, speak to an inability to pay support during the relevant October 2021 through March 2022 time frame. The record was , however, devoid of proof that the father was only capable of obtaining employment involving physical labor, lacked other options in which to generate income, or attempted to find work accommodating his health limitations. The eviction proceedings are not probative of his ability to work and his application for Social Security disability benefits “does not preclude Family Court from determining that he was able to work in some capacity”. Moreover, his support obligation of $40 a month was minimal and no payments were made during this period. The Appellate Division agreed with Family Court’s determination “that the father’s proof was ‘clearly inadequate to meet his burden of showing an inability to pay that would defeat the prima facie case of willful violation’ ” It affirmed the order directing that he be incarcerated for six months for wilful violation of the support order. At the confirmation hearing, counsel successfully admitted evidence of medical records corroborating the father’s contention that he was hospitalized for approximately one month of the relevant time frame and had physical injuries limiting his work options. However, there was no indication from those records that he was totally unable to work in any manner.
Assuming arguendo that a manifestation determination hearing had been warranted, the failure to hold one did not render the PINS petition jurisdictionally defective. The jurisdictional requirements for the filing of a PINS petition are set forth in the Family Ct Act (see Family Ct Act §§ 732, 735[g][ii][A]-[C]), and the holding of such a hearing is not among them.
In Matter of Jazmyne VV., --- N.Y.S.3d ----, 2023 WL 4002657, 2023 N.Y. Slip Op. 03275 (3d Dept.,2023) respondent’s school principal, filed a PINS petition alleging that respondent, then a sixth-grade student, was habitually truant, disobedient and beyond the control of a parent or other lawful authority. In April 2022, respondent waived her right to a fact-finding hearing and admitted on the record that she had been absent from school without an excuse approximately 30 to 40 times that year. Based upon that admission, Family Court adjudicated respondent a PINS and ultimately entered a suspended judgment with conditions on consent. The Appellate Division affirmed rejecting the argument that Respondent was entitled to, and should have received, a manifestation determination hearing to establish whether the behavior underlying the PINS petition was the result of any disability on her part (see 9 NYCRR 357.1[l]). Although respondent did not request this hearing, she argued that the failure to hold the hearing constituted a nonwaivable jurisdictional defect. In advancing such an argument, respondent relied upon 9 NYCRR 357.9(d), which indicates that, “[w]here the matter involves truancy and/or ungovernable behavior at school and the youth is a special education student, probation shall not refer the matter for [a PINS] petition unless a [m]anifestation [d]etermination hearing has been held by the Committee on Special Education ... and the school has provided such documentation to the probation department and the court that the student’s behaviors are not related to the student’s disability, thereby warranting court action” (emphasis added). The record, failed to demonstrate that respondent was a “special education student” prior to the filing of the petition. While it is true that an individualized accommodation plan, also known as a 504 plan, was created for respondent, this was not done until after the petition was filed. Moreover, the existence of a 504 plan alone does not necessarily mean that respondent was a special education student, given that a 504 plan may provide accommodations for “children who need regular (not just special) education” (Doe v. Knox County Bd. of Educ., 56 F.4th 1076, 1083 [6th Cir. 2023]; see 34 CFR § 104.33[b][1]. Even assuming arguendo that a manifestation determination hearing had been warranted, it was unpersuaded that the failure to hold one rendered the PINS petition jurisdictionally defective. The jurisdictional requirements for the filing of a PINS petition are set forth in the Family Ct Act (see Family Ct Act §§ 732, 735[g][ii][A]-[C]), and the holding of such a hearing is not among them.
The Appellate Division rejected Respondents argument that the Probation Department failed to provide its case record to Family Court, thereby giving rise to a nonwaivable jurisdictional defect. In a PINS matter, the designated lead agency must maintain a written record of the diversionary services provided to the child, and this record “shall be made available to the court at or prior to the initial appearance” (Family Ct Act § 735[e]). Here, while there was some discussion at the initial court appearance as to whether the attorney for the child was entitled to review the Probation Department’s record and Family Court seemingly indicated that it had not actually reviewed the record, the transcript of the appearance does not reveal whether that record had been “made available to the court” on or prior to that date, which is all that is required by the pertinent statute (Family Ct Act § 735[e]). Compliance with this obligation is not included among the statutory jurisdictional prerequisites (see Family Ct Act §§ 732, 735[g][ii][A]-[C]).
The Appellate Division also rejected Respondents respondent’s claim that the petition was jurisdictionally defective for failing to plead diligent efforts to provide diversion services and the grounds for concluding that judicial intervention was necessary. The petition adequately recited the diversion efforts undertaken and services provided, not merely in conclusory fashion but with specific reference to six different types of services and seven individual service providers who supported respondent over the four-month period of diversion. Despite these efforts, according to the petition, there was ongoing police intervention, hospital mental health evaluations and violence at respondent’s home. Contrary to respondent’s related argument, the documentation attached to the petition satisfied the requirements that the petition include the steps taken by the school district to improve respondent’s attendance and conduct (see Family Ct Act § 732[a][i]) and “the grounds for concluding that the education-related allegations could not be resolved absent the filing of a [PINS] petition” (Family Ct Act § 735[g][ii][C]).
July 19, 2023
Appellate Division, Third Department
Verbal out-of-court agreements are insufficient to form the basis for a stipulation of settlement. Initial email and the subsequent email correspondence also failed to establish that the parties reached an agreement
In Matter of Eckert, --- N.Y.S.3d ----, 2023 WL 4002660, 2023 N.Y. Slip Op. 03270
(3d Dept.,2023) James Eckert (decedent) died intestate in December 2018. Petitioner (daughter) was the decedent's only surviving child. The respondent (wife) was decedent's surviving spouse, having married decedent in July 2018. In August 2020, the daughter commenced the first proceeding seeking letters of administration of the decedent's estate and the wife cross-petitioned seeking the same relief. The daughter subsequently commenced an action in Surrogate's Court seeking an order declaring the decedent and the wife's marriage null and void because the decedent lacked the mental capacity to marry the wife. The daughter later commenced a separate action in Supreme Court against the wife alleging conversion, undue influence, lack of mental capacity, unjust enrichment and constructive trust in relation to decedent's non-probate retirement accounts; that matter was ultimately assigned to Surrogate's Court, which referred the parties to alternative dispute resolution (ADR). The day after the ADR session, the daughter's counsel sent the wife's counsel an email (the initial email) “to follow up [on] the settlement reached at mediation,” which involved the wife paying the daughter $515,000, setting forth an outline of the terms of the alleged agreement and asserting that he would prepare a draft settlement agreement. The next day, the wife's counsel responded asking the daughter's counsel to “[l]eave the timing of payment open” and providing additional terms. A week later, the daughter's counsel sent a draft of the proposed settlement agreement. The wife's counsel responded three weeks later asserting that the wife could not settle on the proposed terms as liquidating decedent's retirement accounts would have “enormous” tax consequences. Soon after, the daughter moved to enforce the settlement that she claimed was memorialized in the parties’ email exchange. The wife opposed such relief, asserting that no settlement had been reached. Surrogate's Court issued a decision and order which, among other things, granted the daughter's motion and determined that the parties had entered into a binding settlement agreement. The Appellate Divison reversed.
The Appellate Division observed that to form a binding contract, “there must be a meeting of the minds, [so] that there is a manifestation of mutual assent [that is] sufficiently definite to assure that the parties are truly in agreement with respect to all material terms”. Importantly, to ensure that an agreement is enforceable as a stipulation of settlement, its terms must be placed on the record “in open court, reduced to a court order and entered, or contained in a writing subscribed by the parties or their attorneys”. Surrogate's Court erred in finding that a binding agreement was formed, as the parties did not mutually assent to all material terms. Verbal out-of-court agreements are insufficient to form the basis for a stipulation of settlement (see CPLR 2104) The initial email and the subsequent correspondence also failed to establish that the parties reached an agreement. As such, the parties never reached the requisite meeting of the minds as to all material terms and a binding agreement was never formed The Court reminded the parties that, to be enforceable, stipulations of settlement require more than just an agreement among the parties. Once the parties to an active litigation reach an agreement, they must (1) place the material terms of such agreement on the record in open court, (2) reduce them to a court order which is then signed and entered or (3) contain them in a writing subscribed by the parties or their counsel (see CPLR 2104).
In a Neglect proceeding under Family Ct Act § 1046[a][vi]) the out-of-court statements of siblings may properly be used to cross-corroborate one another. However, they must describe similar incidents in order to sufficiently corroborate their sibling’s out-of-court allegations.
In Matter of Kashai E.--- N.Y.S.3d ----, 2023 WL 4482118, 2023 N.Y. Slip Op. 03784 (2d Dept.,2023) the Appellate Division reversed a finding of neglect against the father for committing acts of domestic violence against the mother in the children’s presence. At a fact-finding hearing, the petitioner relied solely on hearsay statements of the children, and the father did not testify. The Appellate Division observed that the trier of fact may draw the strongest inference that the opposing evidence permits against a witness who fails to testify in a civil proceeding. Previous statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence, but if uncorroborated, such statements shall not be sufficient to make a fact-finding of abuse or neglect” (Family Ct Act § 1046[a][vi]). The out-of-court statements of siblings may properly be used to cross-corroborate one another. However, such out-of-court statements must describe similar incidents in order to sufficiently corroborate the sibling’s out-of-court allegations. Here, the hearsay evidence presented by the petitioner at the fact-finding hearing was insufficient to permit a finding of neglect. The hearsay statement of one child that she witnessed the father “attacking her mother in the bedroom” failed to provide any detail as to the alleged domestic violence and was not corroborated by any other evidence of domestic violence in the record. The hearsay statements of the children describing an incident in which the father yelled outside the children’s home and “reached for” or “grabbed at” one of the children on their way inside, which the children described as “uncomfortable,” “weird,” and “confus[ing],” causing one of them to be “a little anxious” and the other to “start[ ] to cry,” without more, was insufficient to establish that the children’s physical, mental, or emotional condition was impaired or in imminent danger of becoming impaired. Furthermore, the children’s knowledge that the father legally possessed a firearm in another state was insufficient to establish that the children’s physical, mental, or emotional condition was impaired or in imminent danger of becoming impaired where there was no evidence that the father had threatened anyone with his firearm or otherwise connecting the firearm to the alleged incidents of neglect.
Where both parties were residing in Rhode Island but their Judgment of divorce contained a provision that Supreme Court would retain jurisdiction concurrently with the Family Court to enforce their stipulation of Supreme Court had personal jurisdiction over the defendant who opposed the plaintiff’s motion without raising an objection to jurisdiction.
In Ritchey v Ritchey, --- N.Y.S.3d ----, 2023 WL 4482190, 2023 N.Y. Slip Op. 03810 (2d Dept.,2023) the parties amended judgment of divorce amended February 1, 2011, incorporated, but did not merge, a stipulation of settlement dated September 4, 2008, in which the parties agreed to certain child support provisions and included a provision stating that the Supreme Court would retain jurisdiction concurrently with the Family Court to enforce the provisions of the parties’ stipulation of settlement. As of approximately 2016, both of the parties and all of their children were residing in the state of Rhode Island. By order to show cause dated November 18, 2020, the plaintiff moved, inter alia, to enforce the child support provisions of the so-ordered stipulation. The defendant opposed the motion on the merits, without raising an objection to jurisdiction. Thereafter, the plaintiff moved to modify the defendant’s child support obligation. In an order dated September 27, 2021, the Supreme Court denied both motions without prejudice to bringing them in the appropriate court in Rhode Island. The Appellate Division reversed and remitted for a determination on the merits. It held that the Supreme Court had personal jurisdiction over the defendant because, among other things, the defendant appeared and opposed the plaintiff’s motion without raising an objection as to jurisdiction (see Family Ct Act § 580–201[a][2]). Under the circumstances of this case, the court had continuing jurisdiction to enforce its support order (Family Ct Act § 580–104[b][1]). To the extent that the court’s denial of the plaintiff’s motion was based upon the doctrine of forum non conveniens, it was improper for the court to apply that doctrine sua sponte, without the parties having had an opportunity to brief the issue.
July 12, 2023
Plaintiff’s request for an award of interim maintenance arrears was properly denied pursuant to the doctrine of res judicata where he plaintiff provided no explanation as to why this issue, which he alleged arose in April 2009, was not addressed at the parties’ trial later that year
In Savino v Savino, --- N.Y.S.3d ----, 2023 WL 4353596, 2023 N.Y. Slip Op. 03728 (2d Dept.,2023) in May 2013, the plaintiff moved, inter alia, to enforce certain equitable distribution provisions of the judgment of divorce. The Appellate Division held, inter alia, that Supreme Court providently exercised its discretion in awarding the plaintiff interest on the distribution of the parties’ marital account. “Interest shall be recovered upon a sum awarded because of a breach of performance of a contract, or because of an act or omission depriving or otherwise interfering with title to, or possession or enjoyment of, property, except that in an act of an equitable nature, interest and the rate and date from which it shall be computed shall be in the court’s discretion” (CPLR 5001[a]). “The exercise of the court’s discretion in determining the appropriate interest is governed by the particular facts in each case” (U.S. Bank, N.A. v. Peralta, 191 A.D.3d 924, 926, 142 N.Y.S.3d 568). Here, the record indicated that the defendant wilfully violated the referee’s amended decision and order dated October 28, 2010, by failing to distribute the contents of the account equally, and instead liquidating the account and denying the plaintiff access to his portion of the proceeds. Accordingly, an award of interest on the plaintiff’s portion of the proceeds was proper in this matter.
The Appellate Division held that the plaintiff’s request for an award of maintenance arrears was properly denied pursuant to the doctrine of res judicata. “[I]n the context of a matrimonial action, the Court of Appeals has ‘recognized that a final judgment of divorce settles the parties’ rights pertaining not only to those issues that were actually litigated but also to those that could have been litigated’ ” (Xiao Yang Chen v. Fischer, 6 N.Y.3d 94, 100, 810 N.Y.S.2d 96, 843 N.E.2d 723). The plaintiff provided no explanation as to why this issue, which he alleged arose in April 2009, was not addressed at the parties’ trial later that year.
If a party moving for disqualification was aware or should have been aware of the facts underlying an alleged conflict of interest for an extended period of time before bringing the motion, that party may be found to have waived any objection to the other party’s representation
In Matter of Marotta v Marotta, ---- N.Y.S.3d ----, 2023 WL 4340297, 2023 N.Y. Slip Op. 03694 (2d Dept.,2023) the Appellate Division held that the Family Court improvidently exercised its discretion in granting the mother’s motion which was to disqualify the father’s attorneys on the basis that the father’s current wife, the children’s stepmother, works as a paralegal in the law office that employed the father’s attorneys. It observed that where a party seeks to disqualify its adversary’s counsel in the context of ongoing litigation, courts consider when the challenged interests became materially adverse to determine if the party could have moved at an earlier time. If a party moving for disqualification was aware or should have been aware of the facts underlying an alleged conflict of interest for an extended period of time before bringing the motion, that party may be found to have waived any objection to the other party’s representation. Further, where a motion to disqualify is made in the midst of litigation and the moving party knew of the alleged conflict of interest well before making the motion, it can be inferred that the motion was made merely to secure a tactical advantage. The mother was aware of the employment of the father’s current wife at the law firm representing the father since 2019. Accordingly, the mother’s failure to move to disqualify the father’s attorneys until April 2022 constituted a waiver of her objection to the father’s legal representation. In any event, the mother failed to demonstrate that the children will be prejudiced by the father being represented by his current attorneys. There was no evidence that during the course of her employment, the father’s current wife worked on the father’s case or that she otherwise communicated with the children about the case.
Appellate Division, Third Department
A change in circumstances that warranted a best interest hearing was demonstrated, two months after the initial custody award to the mother, where mother was using her award of custody to alienate the father from the child and refused, respond to the father’s reasonable requests for basic information
In Matter of Joshua XX., v. Stefania YY., --- N.Y.S.3d ----, 2023 WL 4353660, 2023 N.Y. Slip Op. 03743 (3d Dept.,2023) the Appellate Division concluded that a change in circumstances that warranted a best interest hearing was demonstrated, two months after the initial custody award to the mother, by virtue of the testimony that the mother was using her award of custody to alienate the father from the child and had refused, on several occasions after January 2020, to respond to the father’s reasonable requests for basic information about which of her homes in Ulster County, Dutchess County and Queens County the child would be staying at during her custodial time at the height of the COVID–19 pandemic. There was also evidence that the father – who had previously lived in the basement apartment of the paternal great-grandmother’s home – had since moved to more suitable accommodations. As such, Family Court appropriately proceeded to a best interests review. The Court also found that there was a sound and substantial basis in the record to support Family Court’s finding that the transfer of sole custody to the father would be in the child’s best interests.
Proposed relocation for the purpose of remarriage is a valid motive that should not be summarily rejected, at least where the over-all impact on the child would be beneficial
In Matter of Brian VV., v. Heather WW.,--- N.Y.S.3d ----, 2023 WL 4353604, 2023 N.Y. Slip Op. 03733 (3d Dept.,2023) the Appellate Division held that the proposed relocation of a custodial parent provides the requisite change in circumstances required for Family Court to consider whether a modification of the existing custody order serves the best interests of the child. The party seeking to relocate, “bears the burden of establishing that the move is in the [child’s] best interests by a preponderance of the evidence” It rejected the argument of the mother and the attorney for the child that the father had an impermissible motive for relocation from Cortland to Long Island that necessitated dismissal of his petition. Proposed relocation for the purpose of remarriage is a valid motive that should not be summarily rejected, at least where the over-all impact on the child would be beneficial. (Matter of Tropea v. Tropea, 87 N.Y.2d at 739, 642 N.Y.S.2d 575, 665 N.E.2d 145). That said, it found that Family Court’s conclusion that it would be in the child’s best interests to remain with the mother in Cortland County to be supported by a sound and substantial basis in the record.
Although Family Ct Act § 1055–a (b) provides for the enforcement of postadoption contact agreements, it does not provide a mechanism for the revocation of said agreements.
In Matter of Samuel S.--- N.Y.S.3d ----, 2023 WL 4353596, 2023 N.Y. Slip Op. 03728 (3d Dept.,2023) in 2019, petitioner surrendered her rights to her two sons (born in 2014 and 2016) and executed a judicial consent to their adoption. In conjunction with the surrender, Family Court approved a postadoption contact agreement allowing petitioner to have monthly visits with the children, access to the adoptive parents’ telephone number and address, the ability to send cards and gifts to the children and to be provided with short reports on the health, education and activities of the children, among other things. Petitioner filed a petition in March 2021, asking Family Court to revoke both the contact agreement and the judicial consent as to both of the children based on the pre-adoptive parents’ violation of the agreement. Family Court granted a motion by the attorney for the children to dismiss the petition, finding, inter alia, that it failed to state a cause of action inasmuch as Family Ct Act § 1055–a does not authorize the court to terminate or revoke a postadoption contact agreement, only to enforce it. The Appellate Division affirmed. It noted that Family Ct Act § 1055–a (b) provides that, if a child who is the subject of a postadoption contact agreement has not yet been adopted, any party to the agreement can file a petition seeking enforcement. Although Family Ct Act § 1055–a (b) provides for the enforcement of postadoption contact agreements, it does not provide a mechanism for the revocation of said agreements. Moreover, as to petitioner’s contention that the judicial consent to adoption should be revoked based upon the pre-adoptive parents’ failure to abide by the terms of the contact agreement, failure to abide by such an agreement “shall not be grounds for ... revocation of written consent to an adoption after that consent has been approved by the court” (Domestic Relations Law § 112–b [3]). As such, Family Court did not err in dismissing petitioner’s petition on the basis of failure to state a cause of action.
July 5, 2023
Appellate Division, First Department
Father who continually interfered with the children’s third-party providers ordered to pay for add-ons and to refrain from interfering with, harassing, or terminating the services of the children’s third-party providers, and prohibited from having any contact with the children’s current or prospective providers except to pay invoices
In Ader v Ader, --- N.Y.S.3d ----, 2023 WL 3828099, 2023 N.Y. Slip Op. 02961 (1st Dept.,2023) the Appellate Division affirmed an order which, inter alia, granted the motion of the attorney for the children to enforce the order requiring defendant father to pay for add-ons and to refrain from interfering with, harassing, or terminating the services of the children’s third-party providers, and prohibited the father from having any contact with the children’s current or prospective providers except to pay invoices, awarded the mother sole interim decision-making for the children’s add-on expenses, and directed the father to pay or reimburse those expenses within 10 days of submission, subject to reallocation at trial. It held that the court’s determinations regarding payments due and owing to the children’s current or prospective third-party providers had a sound and substantial basis in the record. Despite the terms of the parties’ prenuptial agreement and several court orders, the father continually interfered with the children’s third-party providers, such as tutors, by refusing to timely pay their fees or refusing to pay them at all. These actions by the father were contrary to the children’s best interests, as the third-party providers were necessary for the children’s emotional and educational well-being and the children had been working successfully with some of them for years. For the same reasons, there was a sound and substantial basis in the record for the court’s award to the mother of sole interim decision-making for the children’s add-on expenses and for the court’s directive that the father refrain from directly contacting or harassing current or potential third-party providers. The father had tried to interfere with the children’s tutors by sending them emails apparently designed to intimidate them, to the children’s detriment. Under the circumstances, the court properly decided that it was in the children’s best interests for the father to have no contact with any providers, including tutors, schools, and therapists, except to pay invoices. Moreover, before entering the order, the court heard from the parties—including the attorney for the children, who supported the mother's motion on her clients’ behalf—and explained, on the record, the reasoning for its decision.
Appellate Division, Second Department
The remedy for any perceived inequities in the pendente lite award is a speedy trial.
In Khazaneh v Khazaneh, --- N.Y.S.3d ----, 2023 WL 4239722 (Mem), 2023 N.Y. Slip Op. 03547 (2d Dept.,2023) the Appellate Division affirmed an order which, inter alia, denied, in part, plaintiff wife’s motion for pendente lite relief insofar as it awarded her $17,000 per month of the requested $64,956 in interim maintenance and directed her to pay 30% of the carrying costs of the marital residence from that amount. The Appellate Division found no basis for disturbing the court’s award of temporary maintenance. It held that the wife’s remedy for any perceived inequities in the pendente lite award is a speedy trial. As maintenance awards are intended to include all basic living expenses, including housing costs, the court’s directing the wife to pay a proportionate amount of her maintenance income to cover a share of the carrying costs of the marital residence was not in error.
Appellate Divison, Fourth Department
As a general rule, the value of the marital residence should be fixed as of the time of trial.
In Jocoy v Jocoy, --- N.Y.S.3d ----, 2023 WL 4285087, 2023 N.Y. Slip Op. 03652
(4th Dept., 2023) the wife appealed from a judgment of divorce that, inter alia, directed defendant husband to pay child support of $1,300 per month and a net amount of $8,740 for retroactive child support, and directed him to pay plaintiff $19,174, representing her half of the marital value of the former marital residence. The Appellate Division rejected plaintiff’s contention that the court erred in calculating defendant’s separate property credit with respect to the marital residence. Defendant purchased the residence prior to the marriage, and less than three years after the marriage, title to the residence was transferred into the parties’ joint names and the mortgage was refinanced. The court did not abuse its broad discretion in calculating defendant’s separate property credit by determining his equity in the residence as of the time of the marriage. However, it found that the court abused its discretion in determining the value of the marital residence by using the valuation date as of the commencement of the action rather than the valuation as of the time of trial. As a general rule, the value of the marital residence should be fixed as of the time of trial. It modified the judgment accordingly.
Where the court deviated from the presumptive child support award in part on the ground that the child shared the residences of the parents, the shared custody arrangement is not a proper basis for downward deviation from the presumptive support obligation.
In Wagner v Wagner, --- N.Y.S.3d ----, 2023 WL 4284251, 2023 N.Y. Slip Op. 03593(4th Dept.,2023) the Appellate Division, inter alia, rejected plaintiffs argument on appeal that he was entitled to summary reversal on the ground that he has been denied his right to effective appellate review because portions of the trial testimony could not be transcribed due to malfunctions of the audio recording system. The Appellate Division had previously reversed an order denying plaintiff’s motion for a reconstruction hearing and remitted the matter for such a hearing to “reconstruct[ ], if possible, those portions of the testimony of plaintiff and defendant that could not be transcribed” (Wagner v. Wagner, 210 A.D.3d 1515, 1515, 176 N.Y.S.3d 826 [4th Dept. 2022]). On this appeal, the parties submitted a statement of settlement by Supreme Court purporting to reconstruct the missing testimony. In light of the availability of that alternative method to provide an adequate record, summary reversal was not warranted.
The Appellate Division, inter alia, agreed with defendant that the court erred in deviating from the presumptive child support award pursuant to the Child Support Standards Act (CSSA). Although the court deviated from the presumptive child support award in part on the ground that the child shared the residences of the parents, the shared custody arrangement was not a proper basis for downward deviation from the presumptive support obligation.
Inasmuch as child support is determined by the parents’ ability to provide for their children rather than their current economic situation the Support Magistrate properly considered the PPP monies in imputing income to the father.
In Matter of Houck v Houck, --- N.Y.S.3d ----, 2023 WL 4284852, 2023 N.Y. Slip Op. 03624 (4th Dept., 2023) the Appellate Division rejected appellants argument that the Support Magistrate erred in imputing income to him for child support purposes based upon money he received from the federal Paycheck Protection Program (PPP) in 2021. A support magistrate may impute income based on a party’s employment history, future earning capacity, educational background, or money received from friends and relatives. The record established that the father’s business suffered a temporary downturn due to the COVID-19 pandemic and that the PPP monies brought his income for 2021 back up to an amount that was generally consistent with what it had been prior to the pandemic. Inasmuch as child support is determined by the parents’ ability to provide for their children rather than their current economic situation the Support Magistrate properly considered the PPP monies in imputing income to the father.
July 1, 2023
Family Court Act § 659, titled Consideration of law allowing gender-affirming care, was added effective June 25, 2023.
§ 659. Consideration of law allowing gender-affirming care
1. A law of another state that authorizes a child to be removed from their parent or guardian based on the parent or guardian allowing their child to receive gender-affirming care shall not be enforced or applied in a case pending in a court in this state.
2. No court in this state shall admit or consider a finding of abuse based on the parent or guardian allowing their child to receive or seek gender-affirming care as evidence in any proceeding with respect to that parent or guardian and any of their children, unless such conduct would constitute abuse under the laws of this state if it occurred in this state.
(Laws of 2023, Ch. 143, § 1, effective June 25, 2023.)
Supreme Court of the United States
The Supreme Court declined to disturb the Fifth Circuit’s conclusion that the Indian Child Welfare Act (ICWA) is consistent with Congress’s Article I authority.
In Haaland v. Brackeen, --- S.Ct. ----, 2023 WL 4002951 (Supreme Court of the United States, 2023) the Petitioners—a birth mother, foster and adoptive parents, and the State of Texas—filed this suit in federal court against the United States and other federal parties. Petitioners challenged ICWA as unconstitutional on multiple grounds. Several Indian Tribes intervened to defend the law alongside the federal parties The District Court granted petitioners’ motion for summary judgment on their constitutional claims, and the en banc Fifth Circuit affirmed in part and reversed in part. The Fifth Circuit concluded that ICWA does not exceed Congress’s legislative power, that § 1915(c) does not violate the nondelegation doctrine, and that some of ICWA’s placement preferences satisfy the guarantee of equal protection. The Fifth Circuit was evenly divided as to whether ICWA’s other preferences—those prioritizing “other Indian families” and “Indian foster home[s]” over non-Indian families—unconstitutionally discriminate on the basis of race, and thus affirmed the District Court’s ruling that these preferences are unconstitutional. As to petitioners’ Tenth Amendment arguments, the Fifth Circuit held that § 1912(d)’s “active efforts” requirement, § 1912(e)’s and § 1912(f)’s expert witness requirements, and § 1915(e)’s recordkeeping requirement unconstitutionally commandeer the States. And because it divided evenly with respect to other challenged provisions (§ 1912(a)’s notice requirement, § 1915(a) and § 1915(b)’s placement preferences, and § 1951(a)’s recordkeeping requirement), the Fifth Circuit affirmed the District Court’s holding that these requirements violate the Tenth Amendment.
The Supreme Court observed that the case involved three separate child custody proceedings governed by the Indian Child Welfare Act (ICWA), a federal statute that aims to keep Indian children connected to Indian families. ICWA governs state court adoption and foster care proceedings involving Indian children. Among other things, the Act requires the placement of an Indian child according to the Act’s hierarchical preferences, unless the state court finds “good cause” to depart from them. 25 U.S.C. §§ 1915(a), (b). Under those preferences, Indian families or institutions from any tribe (not just the tribe to which the child has a tie) outrank unrelated non-Indians or non-Indian institutions. Further, the child’s tribe may pass a resolution altering the prioritization order. § 1915(c). The preferences of the Indian child or her parent generally cannot trump those set by statute or tribal resolution. In involuntary proceedings, the Act mandates that the Indian child’s parent or custodian and tribe be given notice of any custody proceedings, as well as the right to intervene. §§ 1912(a), (b), (c). Section 1912(d) requires a party seeking to terminate parental rights or to remove an Indian child from an unsafe environment to “satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family,” and a court cannot order relief unless the party demonstrates, by a heightened burden of proof and expert testimony, that the child is likely to suffer “serious emotional or physical damage” if the parent or Indian custodian retains custody. §§ 1912(d), (e). Even for voluntary proceedings, a biological parent who gives up an Indian child cannot necessarily choose the child’s foster or adoptive parents. The child’s tribe has “a right to intervene at any point in [a] proceeding” to place a child in foster care or terminate parental rights, as well as a right to collaterally attack the state court’s custody decree. §§ 1911(c), 1914. The tribe thus can sometimes enforce ICWA’s placement preferences against the wishes of one or both biological parents, even after the child is living with a new family. Finally, the States must keep certain records related to child placements, see § 1915(e), and transmit to the Secretary of the Interior all final adoption decrees and other specified information, see § 1951(a).
The Supreme Court declined to disturb the Fifth Circuit’s conclusion that ICWA is consistent with Congress’s Article I authority. It pointed out that Congress’s power to legislate with respect to Indians is well established and broad. Petitioners contended that ICWA impermissibly treads on the States’ traditional authority over family law. The Court found that when Congress validly legislates pursuant to its Article I powers, the Court “has not hesitated” to find conflicting state family law preempted, “[n]otwithstanding the limited application of federal law in the field of domestic relations generally.” And the Court has recognized Congress’s power to displace the jurisdiction of state courts in adoption proceedings involving Indian children. Petitioners contended that no source of congressional authority authorizes Congress to regulate custody proceedings for Indian children. They suggested that the Indian Commerce Clause, for example, authorizes Congress to legislate only with respect to Indian tribes as government entities, not Indians as individuals. It rejected this argument. The Court’s holding more than a century ago that “commerce with the Indian tribes, means commerce with the individuals composing those tribes,” rendered that argument a dead end. Petitioners also asserted that ICWA takes the “commerce” out of the Indian Commerce Clause because “children are not commodities that can be traded.” This point, while rhetorically powerful, ignored the Court’s precedent interpreting the Indian Commerce Clause to encompass not only trade but also other Indian affairs. Petitioners next argued that ICWA cannot be authorized by principles inherent in the Constitution’s structure because those principles “extend, at most, to matters of war and peace.” However, petitioners made no argument that takes the Court’s cases on their own terms. The Court has referred generally to the powers “necessarily inherent in any Federal Government” and has offered non-military examples, such as “creating departments of Indian affairs.” Petitioners next observed that ICWA does not implement a federal treaty. However, Congress did not purport to enact ICWA pursuant to its treaty power and the Fifth Circuit did not uphold ICWA on that rationale. Finally, petitioners criticized the Court’s precedent as inconsistent with the Constitution’s original meaning, but they neither asked the Court to overrule the precedent they criticized nor tried to reconcile their approach with it. If there are arguments that ICWA exceeds Congress’s authority as precedent stands today, petitioners did not make them here. The Court rejected the Petitioners’ anticommandeering challenges, which addressed three categories of ICWA provisions. The Court did not reach the merits of the petitioners’ two additional claims, an equal protection challenge to ICWA’s placement preferences and a non-delegation challenge to § 1915(c), the provision allowing tribes to alter the placement preferences, because no party before the Court had standing to raise them. (994 F.3d 249, affirmed in part, reversed in part, vacated and remanded in part.)
Appellate Divison, Third Department
Father properly committed to jail where his medical evidence spoke to an inability to pay support but the record was devoid of proof that he was only capable of obtaining employment involving physical labor, lacked other options in which to generate income, or attempted to find work accommodating his health limitations.
In Matter of Benson v Sherman, --- N.Y.S.3d ----, 2023 WL 4002706, 2023 N.Y. Slip Op. 03277 (3d Dept.,2023) the Appellate Division affirmed an order of the Family Court which held the respondent in willful violation of a prior order of support and committed the respondent to jail for six months. Under Family Ct Act § 437, a parent is presumed to have sufficient means to support his or her child until the age of 21. The failure to pay support as required constitutes prima facie evidence of a willful violation. The father’s proof was ‘clearly inadequate to meet his burden of showing an inability to pay. (Family Ct Act § 454[3][a]) The medical evidence confirmed that the father was unable to work during his extended hospitalization and further demonstrated that he had significant physical limitations preventing him from performing manual labor following his discharge. He also remained under continuing care to address a serious infection. These factors, coupled with his efforts to obtain disability benefits and his potential eviction, spoke to an inability to pay support during the relevant October 2021 through March 2022 time frame. However, the record was devoid of proof that the father was only capable of obtaining employment involving physical labor, lacked other options in which to generate income, or attempted to find work accommodating his health limitations. Eviction proceedings against him were not probative of his ability to work and his application for Social Security disability benefits did not preclude Family Court from determining that he was able to work in some capacity. Moreover, the support obligation of $40 a month was minimal and no payments were made during this period.
June 14, 2023
Appellate Division, Second Department
On counsel fee application under DRL §238 plaintiff was required to submit itemized billing statements as proof of the attorneys’ fees incurred, to demonstrate substantial compliance with 22 NYCRR 1400.2 and 1400.3 and to establish the “extent and value of [the] services” rendered. A movant may not meet his or her burden on a motion by submitting evidence in reply.
In Yakobowicz v Yakobowicz, --- N.Y.S.3d ----, 2023 WL 3856275, 2023 N.Y. Slip Op. 03044 (2d Dept.,2023) the parties 2014 a stipulation of settlement required the plaintiff to direct the trustee of their apartment in Israel to transfer title to the apartment to the defendant as part of her distributive award. Their 2014 judgment of divorce incorporated, but did not merge, the stipulation. The defendant moved, inter alia, to hold the plaintiff in contempt based upon, among other things, his failure to transfer title to the apartment to her. By order dated November 2, 2016, the Supreme Court granted the defendant’s renewed motion for interim counsel fees to the extent of awarding the defendant interim attorneys’ fees of $25,000 without prejudice to further application for additional sums. In August 2017, the defendant moved to hold the plaintiff in contempt for failing to pay the $25,000 interim attorneys’ fees award. Supreme Court, referred the motion to the hearing on defendant’s prior motion to hold the plaintiff in contempt. In August 2018, the Appellate Division affirmed the order granting defendant’s renewed motion to the extent of awarding her $25,000 in interim attorneys’ fees. In 2019 Supreme Court held the plaintiff in contempt for failing to direct the trustee to transfer title to the apartment to the defendant and for failing to pay the interim attorneys’ fees award, while permitting him to purge the contempts, which he did. In October 2019, the defendant moved, inter alia, pursuant to DRL 238 for an award of more than $200,000 in attorneys’ fees relating to her attempts to enforce the judgment of divorce, The parties stipulated that her attorneys’ fee application could be decided without a hearing. Supreme Court granted defendant’s motion to the extent of awarding $50,000.
The Appellate Division observed that the defendant sought more than $200,000 in attorneys’ fees for pursuing the enforcement proceedings, but failed to include itemized billing for a significant portion of the attorneys’ fees sought. Contrary to the defendant’s contention, she was required to submit itemized billing statements as proof of the attorneys’ fees incurred, both to demonstrate substantial compliance with 22 NYCRR 1400.2 and 1400.3 and to establish the “extent and value of [the] services” rendered particularly considering that the parties agreed to have her attorneys’ fee application decided without a hearing. The Supreme Court properly rejected her attempt to remedy this issue by submitting the missing statements in reply, since a movant may not meet his or her burden on a motion by submitting evidence in reply. While the defendant omitted itemized billing statements covering the early portion of the enforcement proceedings from her moving papers, she nonetheless included statements for a nearly two-year period leading up to the motion. The plaintiff correctly contended that, under the circumstances, the defendant was not entitled to the compound interest charges contained in those statements. Some unknown portion of those interest charges related to attorneys’ fees contained in the missing statements, which were not recoverable. In any event, interest is not part of [a legal] fee, but rather compensation for delay in payment of the fee . The Appellate Division held that Supreme Court improvidently exercised its discretion in awarding only $50,000 in attorneys’ fees to the defendant, the nonmonied spouse. The defendant’s attorneys billed nearly $100,000 in hourly fees and costs for services rendered during the period reflected in the billing statements submitted with the moving papers, not including interest charges. Moreover, the defendant pursued the enforcement proceedings because of the plaintiff’s failure to comply with the judgment of divorce, and the court held him in contempt for his noncompliance. While the court found that the plaintiff was primarily at fault, it determined that the defendant’s actions “partly contributed to the excessively lengthy litigation.” However, the record did not indicate that the defendant’s actions materially increased the cost of litigation for the parties. Contrary to the plaintiff’s contention, the defendant was not prohibited as a matter of law from recovering attorneys’ fees relating to her applications. Finally, this Court’s review of the itemized entries in question did not reveal any significant number of hours billed that are plainly unrelated to the enforcement proceedings, despite the plaintiff’s assertions to the contrary. Under the circumstances, the Court concluded that the defendant demonstrated entitlement to $96,243.79 in attorneys’ fees in her moving papers. The plaintiff was entitled to a credit in the amount of $25,000 for the interim attorneys’ fee award previously paid.
Appellate Divison, Third Department
One family-one judge rule (22 NYCRR 205.3[c][6]) speaks to the assignment of particular cases within a court, and not whether the venue of a proceeding is proper.
In Matter of Awawdeh v Awawdeh, --- N.Y.S.3d ----, 2023 WL 3872165, 2023 N.Y. Slip Op. 03062 (3d Dept.,2023) the parties separated in 2019, at which time a divorce proceeding was commenced in Saratoga County. In 2021, the petitioner commenced a family offense proceeding in Washington County, where she had moved, and alleged that the respondent committed various family offenses. Respondent moved to dismiss the amended petition for failure to state a cause of action or, alternatively, on the basis that the filing of the amended petition in Washington County violated 22 NYCRR 205.3(c)(6). Family Court denied the motion. The Appellate Division observed that relying on what is known as the one family-one judge rule (see 22 NYCRR 205.3[c][6]), the respondent contended that the amended petition should have been dismissed with leave to refile in Saratoga County. The one family-one judge rule provides that “[m]ultiple proceedings involving members of the same family shall be assigned to be heard by a single judge to the extent feasible and appropriate” (22 NYCRR 205.3[c][6]). This rule, however, speaks to the assignment of particular cases within a court, and not whether the venue of a proceeding is proper, which is the essence of the respondent’s contention. Even if the one family-one judge rule governed the venue of proceedings, it also applies “to the extent feasible and appropriate” (22 NYCRR 205.3[c][6]). Notwithstanding the pending divorce proceeding in Saratoga County, the petitioner resided in Washington County when she commenced this family offense proceeding. Furthermore, the respondent does not dispute that Washington County could be considered an appropriate venue for the proceeding. It held that under the circumstances of this case, the respondent’s reliance on the one family-one judge rule as a basis for dismissal of the amended petition Kass unavailing.
Respondent also took issue with the fact that the petitioner never explicitly alleged aggravated harassment in the second degree in the amended petition. Although this family offense was not specifically pled, the factual allegation forming the basis of the Family Court’s finding was sufficiently pled and the hearing proof was sufficient to make out a prima facie case on this family offense. In view of the foregoing, and noting that the respondent was able to defend himself against this factual allegation, any failure to explicitly plead aggravated harassment in the second degree did not warrant reversal.
A Lincoln hearing is the preferred method for ascertaining the child’s wishes. The wishes of this soon-to-be 16–year–old child, although not determinative, should have been considered. It was improper for Family Court to simply presume the child preferred to reside with his mother, as the fundamental purpose of a Lincoln hearing is to ascertain a child’s preferences and concerns.
In Matter of Samantha WW v Malek XX, --- N.Y.S.3d ----, 2023 WL 3872128, 2023 N.Y. Slip Op. 03052 (3d Dept.,2023) the parties were the parents of the child (born in 2005). In 2017, the stipulated to an order of custody in which the mother and the father had joint legal custody of the child with the father having primary physical custody. In 2020, the mother filed a modification petition seeking primary physical custody of the child. During a fact-finding hearing, at the close of the mother’s proof, the mother and the attorney for the child requested that Family Court conduct a Lincoln hearing of the child. Family Court declined to conduct such a hearing, stating that it presumed the child’s position is that he prefers to reside with the mother in Florida and granted the father’s motion to dismiss on the ground that the mother failed to establish a change in circumstances. The Appellate Division held that while not determinative, the preferences of an older and more mature child are relevant in determining whether a change in circumstances exists and that Family Court abused its discretion in denying the attorney for the child’s request for a Lincoln hearing to aid in the court’s determination of whether a change in circumstances had occurred. While the determination of whether to conduct a Lincoln hearing lies within Family Court’s discretion, it is indeed the preferred method for ascertaining the child’s wishes. At the time of the hearing, the child was six days shy of being 16 years old and the mother’s primary argument in support of her petition was that the child preferred to reside with her in Florida. A Lincoln hearing would have provided the court with significant pieces of information it needed to make the soundest possible decision. The wishes of this soon-to-be 16–year–old child, although not determinative, should have been considered, including any insight he may have provided as to the current status of his relationship with each parent. It was improper for Family Court to simply presume the child preferred to reside with his mother, as the fundamental purpose of a Lincoln hearing “is to ascertain a child’s preferences and concerns. Further, the record was bereft of any articulation or explanation for Family Court’s decision not to conduct a Lincoln hearing, although it assumes the court decided – wrongly, in its opinion – that it was unwarranted. It concluded that a Lincoln hearing was called for under these circumstances and remitted the matter to Family Court to conduct a Lincoln hearing, and any appropriate hearing following same.
Family Ct Act § 1062 permits a child’s parent to seek an order terminating the child’s out-of-home placement. Family Court has discretion to determine whether a hearing is necessary to resolve that question. Standing alone the mother assertion that she had completed or otherwise continued to successfully engage in all services required of her did not compel termination of the placement.
In Matter of Eli KK., --- N.Y.S.3d ----, 2023 WL 3872123, 2023 N.Y. Slip Op. 03061(3d Dept.,2023) both children were removed from the mother’s care in March 2021, on her consent, and placed in the custody of petitioner. The mother later admitted to neglecting the children. In August 2021, Family Court continued the placement of the children and imposed specified conditions upon the mother. In March 2022, petitioner conducted an unannounced home visit during the mother’s visitation with the younger child and discovered marihuana and drug paraphernalia within reach of the younger child. Petitioner then obtained a temporary order suspending contact between the mother and the younger child. Shortly thereafter, the mother moved, pursuant to Family Ct Act § 1062, to terminate the children’s out-of-home placements. Petitioner opposed, asserting that the alleged completion of services was an insufficient ground for such a motion and citing both the March 2022 incident and the fact that visitation with the older child had still not progressed from therapeutic visits. The mother appealed, arguing that it was an abuse of discretion to deny her motion without a hearing. The Appellate Division affirmed. It noted that Family Ct Act § 1062 permits a child’s parent, among others, to seek an order terminating the child’s out-of-home placement. The paramount concern on such a motion is whether the present placement continues to serve the purpose of Family Ct Act article 10 that is, protecting children from injury or mistreatment and “helping to safeguard their physical, mental, and emotional well-being– and the movant must establish that the return of the child protects these interests. Family Court is vested with the discretion to determine whether a hearing is necessary to resolve that question (see Family Ct Act § 1064) As grounds for the return of the children (see Family Ct Act § 1062[c]), the mother asserted that she had completed or otherwise continued to successfully engage in all services required of her. Standing alone, this did not compel termination of the placement. Further, following the March 2022 incident, the mother was ordered to engage in additional services, upon her consent. It was also undisputed that the mother’s visitation with each child was still required to be in a supervised setting. With respect to the younger child, the requirement of supervision was a recent regression. With respect to the older child, the mother acknowledged that certain of petitioner’s concerns were not being adequately addressed by her then-current counselor, and a component of the subject stipulation was that she would be connected with a new provider. In light of the foregoing, and considering Family Court’s familiarity with the parties and this neglect proceeding, there was no abuse of discretion in the court’s decision to deny the mother’s motion without a hearing.
Appellate Divison, Fourth Department
Supreme Court erred in awarding the wife maintenance above the presumptive amount under DRL § 236 (B) (6) and in awarding maintenance for a period of time in excess of the recommendation set forth in the advisory schedule in DRL § 236 (B) (6) (f) (1) without adequately demonstrating its reliance on the relevant statutory factors.
In Renzi v Renzi, --- N.Y.S.3d ----, 2023 WL 3912644, 2023 N.Y. Slip Op. 03092 (4th Dept., 2023) the Defendant husband appealed from a judgment of divorce that, inter alia, directed him to pay plaintiff wife $5,700 per month in maintenance until the husband reaches the age of 67. Although the judgment was entered upon the husband’s default and no appeal lies from a judgment entered on default, the appeal brings up for our review matters which were the subject of the contest before the court, i.e., the maintenance award. The Appellate Division held that Supreme Court erred in awarding the wife maintenance above the presumptive amount under Domestic Relations Law § 236 (B) (6) without following the requirements of that statute, and erred in awarding maintenance for a period of time in excess of the recommendation set forth in the advisory schedule in Domestic Relations Law § 236 (B) (6) (f) (1) without adequately demonstrating its reliance on the relevant statutory factors enumerated in section 236 (B) (6) (e) (see § 236 [B] [6] [f] [2]). It observed that where there is a deviation from the presumptive amount reached by application of the relevant formula, the court should explain the reasons for that deviation. It must provide a reasoned analysis of the factors it ultimately relies upon in awarding maintenance. The court did not state what it found the wife’s income to be or set out the presumptive amount of maintenance owed under the statutory formula. It failed to “set forth the factors it considered and the reasons for its decision in writing or on the record” (DRL § 236 [B] [6] [d] [3]), and therefore “failed to show that it considered any of the factors enumerated in section 236 (B) (6) (e) (1) in making its determination of both the amount and duration of the maintenance award. It remitted the matter to Supreme Court to determine the amount and duration of maintenance, if any, after setting forth all relevant factors that it considered in making its decision (Domestic Relations Law § 236 [B] [6] [e] [1], [2]; [f] [2]).
Fourth Department holds that oral stipulation was not enforceable because, although it was entered in open court, it was not reduced to writing, subscribed, or acknowledged by the parties, as required by Domestic Relations Law § 236 (B) (3). The First and Second Departments have held differently. The Third Department has agreed with its position.
In Cole v Hoover, --- N.Y.S.3d ----, 2023 WL 3914034, 2023 N.Y. Slip Op. 03103 (4th Dept., 2023) plaintiff, the former wife of defendant, sought vacatur of the judgment of divorce and a judgment declaring that the parties’ oral stipulation was “invalid and unenforceable.” Supreme Court denied her motion for summary judgment on the first cause of action, alleging that the oral stipulation was invalid because it did not comply with Domestic Relations Law § 236 (B) (3). The Appellate Division reversed. It held that the parties’ oral stipulation was not enforceable because, although it was entered in open court, it was not reduced to writing, subscribed, or acknowledged by the parties, as required by Domestic Relations Law § 236 (B) (3). The statute unambiguously provides that, in order for an agreement regarding maintenance or a distributive award “made before or during the marriage” to be valid and enforceable in a matrimonial action, the agreement must be “in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded”. It has repeatedly held that oral stipulations do not comply with the statute. It noted that although the First and Second Departments have held differently the Third Department has agreed with its position, thus creating an even split at the Appellate Division level on that issue. It noted that the Court of Appeals has made it clear that there is “no exception” to the statute’s requirements (Matisoff v. Dobi, 90 N.Y.2d 127, 135 [1997]).
The Appellate Division held that Supreme Court erred in denying the motion on the ground that plaintiff ratified the oral stipulation. The proposition that an agreement that fails to comply with Domestic Relations Law § 236 (B) (3) could be upheld if ratified by the parties was implicitly rejected by the Court of Appeals in Matisoff. In that case, the First Department held that the parties’ oral agreement was enforceable because, inter alia, its “terms were acknowledged and ratified in the daily activities and property relations of the parties throughout their eleven-year marriage”. By reversing the First Department, the Court of Appeals necessarily rejected the contention that an agreement that fails to comply with Domestic Relations Law § 236 (B) (3) may be upheld if it is ratified by the parties.
Family Court
Family Court denied the motion to dismiss the Neglect petition alleging a coercive and controlling relationship holding that the exercise of coercive and controlling behavior leading to conditions in which one parent is truly trapped, like a hostage, in a relationship and residence against their will, can fall below the minimum degree of parenting and constitute neglect.
In Matter of Aisha R., 2023 WL 3831887 (Fam Court, 2023) the dated October 13, 2022, the Administration for Children’s Services (”ACS”) alleged that the respondent, Ariel T., neglected the children by perpetrating acts of domestic violence against their mother, non-respondent Taisha R., in their presence. Family Court denied the motion to dismiss the petition alleging a coercive and controlling relationship. The facts alleged met the standard to survive a CPLR 3211(a)(7) motion. The most visible impact on the children alleged in the petition was that Arielle, a two-year old child, repeated the derogatory words Mr. T. used against Ms. R., including calling his mother “a bitch. The children were also negatively impacted by Mr. T.’s alleged use of them as tools in his campaign of control over Ms. R. The petition alleged that Mr. T. took all the children’s vital documents and repeatedly threatened to take the children away from Ms. R. if she does not listen to him. Utilizing the children to further exert power and control over Ms. R. creates a substantial risk of harm to not only Ms. R., but the children as well. As alleged, Mr. T.’ actions and choice to use the children as a means of control over Ms. R. showed a disregard for the well-being of the children that raised serious concern regarding his parental judgment and the effect his decisions have on the children’s mental and emotional state. In addition to the significant lack of parental judgment here, this behavior teaches the children unhealthy relationship dynamics and places them directly in between their parents. Additionally, from the power and control allegedly exerted, it could reasonably be inferred that Mr. T. inhibited Ms. R.’s own ability to provide a minimum degree of care for the children. As per the petition, Mr. T. does not allow Ms. R. to leave the home, accuses her of sleeping with everybody, does not allow her to see friends or family, takes her monthly SSI benefits, and confiscated the children’s vital documents. Without vital documents, Ms. R. was unable to even perform the basic function of enrolling her children in school, and without access to her own funds, she could not purchase necessities for herself and the children, let alone the occasional “extras” that grease the parenting wheel with small children. Additionally, the isolation from the friends and family who would provide multiple benefits and positive experiences for the children detracts from the children’s ability to build social skills and eliminates their opportunity to observe and learn what non-abusive relationships are. The exercise of coercive and controlling behavior leading to conditions in which one parent is truly trapped, like a hostage, in a relationship and residence against their will, can fall below the minimum degree of parenting and constitute neglect. Using derogatory language that the children repeat, using the children as tools to further control their mother, using isolating tactics that leave children feeling alone and unsupported, and unreasonably creating a tense home environment is not the way a reasonable and prudent parent would care for a child. Failing to distinguish this type of psychological abuse from the “undesirable but not neglectful” scenarios would mean that Family Court’s protection would not be extended to children who are impaired by non-physical forms of domestic violence.
In a juvenile delinquency proceeding the Respondent’s request for police records of officers who would not testify was granted. The Presentment Agency was not required to turn over records of non-testifying officers where Respondent had no reason to believe, and had made no offer of proof, that the records would impeach the credibility of any officer it would call to testify.
In Matter of E.S. --- N.Y.S.3d ----, 2023 WL 3265934, 2023 N.Y. Slip Op. 23135
(Fam Ct, 2023) a juvenile delinquency proceeding the Respondent’s request for police records of officers who will not testify was granted. The Presentment Agency contended that it was not required to turn over records of non-testifying officers where Respondent had no reason to believe, and has made no offer of proof, that the records would impeach the credibility of any officer it would call to testify. The Court observed that Section 245.20 of the Criminal Procedure Law provides for automatic discovery of certain categories of information favorable to the defense in a criminal proceeding, including broad disclosure of all evidence and information, including that which is known to police or other law enforcement agencies acting on the government’s behalf in the case, that tends to ... impeach the credibility of a testifying prosecution witness (CPL 245.20[1][k][iv]). Family Court noted that in Matter of Jayson C., the Appellate Division, First Department held that, although the Criminal Procedure Law is generally not applicable to proceedings under the Family Court Act (Family Ct Act § 303.1[1]), the denial of records available to criminal defendants under CPL 245.20(1)(k)(iv), which broadly requires disclosure of all impeachment evidence, deprived the respondent in a juvenile delinquency proceeding of equal protection of the law (Matter of Jayson C., 200 A.D.3d at 447, 159 N.Y.S.3d 40). Criminal Procedure law 245.20(1)(k) also provides for disclosure of six other categories of evidence, including all evidence and information that tends to “(i) negate the defendant’s guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant’s culpability as to a charged offense; (iii) support a potential defense to a charged offense; (v) undermine evidence of the defendant’s identity as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment.” Although the court in Matter of Jayson C. did not address the six remaining categories of information that must be disclosed pursuant to CPL 245.20(1)(k), the disclosure provided for therein mirrors and broadens the constitutional protections developed in case law, including the obligation of the state to disclose all evidence or information which is “favorable to the defense, material either to guilt or punishment, or affecting the credibility of prosecution witnesses”. Family Court Act § 331.2 and § 331.4 set forth the general scope of discovery in juvenile delinquency proceedings, which in addition to specific items set forth in the statute, directs that the Presentment Agency shall disclose to the respondent “anything required to be disclosed ... pursuant to the constitution of this state or of the United States” (FCA § 331.2 [1][g]). Thus, although the Family Court Act is silent regarding the specific statutory protections memorialized in CPL 245.20(1)(k)(i)-(iii), (v)-(vii), to deny this disclosure would violate the right to equal protection as per Matter of Jayson C. and as required by constitutional precedents. The court found that the first espoused rationale applies insofar as the records requested by Respondent generally would tend to be favorable to the defense. This portion of the motion was granted and the Presentment Agency was directed to produce to Respondent the police records of all officers assigned to the case, who assisted in the arrest, or who responded at the scene.
June 7, 2023
Appellate Divison, First Department
Where the husband elected to receive his compensation in stock options and RSUs, which could have been converted to cash at commencement the the commencement date of valuation was appropriate.
In Lorne v Lorne, --- N.Y.S.3d ----, 2023 WL 3742967, 2023 N.Y. Slip Op. 02942 (1st Dept.,2023) the Supreme Court, among other things, awarded defendant wife $7,000 in monthly maintenance retroactive to October 18, 2016; (2) determined that plaintiff husband’s Charles Schwab accounts ending in –2077, –2005, and –2479 were his separate property; (3) determined that property located at 162 Ken Rose Lane in Oregon (Ken Rose) was the husband’s separate property; (4) determined that the husband’s stock options and restricted units (RSU) in Teledyne Technologies should be valued as of date of commencement; (5) determined that the parties’ marital estate should be distributed 60% to the husband and 40% to the wife; (6) awarded the husband a 100% credit for his payment of post-commencement carrying costs on 50 Madison Avenue; (7) authorized the husband to make decisions in the ongoing litigation involving 50 Madison Avenue and to receive a credit for 60% of his related legal fees post-commencement; (8) credited the wife 40% of transfers made by the husband of $420,000, $90,000, and $534,814; (9) and determined the wife’s share of the husband’s net deferred income based on taxes withheld. The Appellate Division modified by reducing the husband’s “off the top” credit for his payment of post-commencement carrying costs on 50 Madison Avenue from 100% to 40%, vacating credits to the wife of $213,600 and $168,000, increasing the wife’s credit of $36,000 to $60,000, increasing the wife’s distributive share of the husband’s deferred compensation award by $104,237.08, deleting any calculation of any credits to the husband for overpayment of maintenance, and otherwise affirmed.
The Appellate Division found no reason to disturb the trial court’s determination that the husband’s stock options and RSU in Teledyne Technologies were properly valued as of the commencement date. Generally, active assets are valued as of the commencement date while passive assets are valued closer to the date of trial, however this must be viewed as a helpful guidepost rather than a rigid rule (see McSparron v. McSparron, 87 N.Y.2d 275, 287–288, 639 N.Y.S.2d 265 [1995]). The husband testified that he was a board member and Chairman of the Audit Committee at Teledyne, and his duties included attending meetings, keeping abreast of the industry, and acting as a conduit for information with audit partners. Notably, the husband elected to receive his compensation in stock options and RSUs, which could have been converted to cash at commencement. Under these circumstances, it found that the commencement date of valuation was appropriate.
The Appellate Division held that the court providently exercised its discretion in awarding the husband 60% of the marital estate, and the wife 40%. The parties met in their fifties and did not have children together. While she largely managed the parties’ properties, the wife did not work outside the home. The wife also occasionally participated in the husband’s business-related events, but there was some testimony that the wife’s behavior at these events created friction with his associates. It was undisputed that while the action was pending the wife sent letters disparaging the husband to his employer and other professional contacts. Although the husband’s income increased dramatically during the marriage, his highest earning years occurred in the three years preceding commencement of the action when the parties had effectively set up separate households in New York and Connecticut. Under these circumstances, the court’s division of marital assets was equitable.
The court noted that the husband was not entitled to any credits for temporary maintenance payments that exceeded the permanent maintenance award as any difference was minimal due to the tax impact (see Wechsler v. Wechsler, 58 A.D.3d 62, 84, 866 N.Y.S.2d 120 [1st Dept. 2008], appeal dismissed 12 N.Y.3d 883, 883 N.Y.S.2d 177, 910 N.E.2d 1007 [2009]).
Appellate Division, Second Department
Based upon the defendant’s admissions that she utilized cash from the business to pay for certain personal expenses, as well as some employee salaries, the Supreme Court providently exercised its discretion in imputing an annual income of $80,000 to the defendant. Where the noncustodial parent is contributing the majority of the financial support of the parties’ children, the court may determine that the noncustodial parent is entitled to declare the children as dependents.
In Miller v Miller, --- N.Y.S.3d ----, 2023 WL 3729829, 2023 N.Y. Slip Op. 02872 (2d Dept.,2023) the amended judgment of divorce, inter alia, (1) valued Healthcare Medical Services, PLLC, at $2,885,100, (2) awarded the defendant 20% of the value of Healthcare Medical Services, PLLC, (3) awarded the defendant $5,000 per month in child support, and (4) directed the plaintiff to pay 75% of all child support add-ons. The Appellate Division modified by adding a provision directing that the plaintiff is authorized to declare all of the parties’ unemancipated children as dependents on his personal income tax returns and otherwise affirmed. The parties were married on June 21, 1994, and had eight children. The plaintiff was a medical doctor and the sole owner of two professional companies, Hanan Miller, MD, P.C., and Healthcare Medical Services, PLLC (HMS). The defendant owned and operated an upscale baby clothing store called Lavish Layette. The parties agreed that the defendant would have sole legal and residential custody of the parties’ unemancipated children. Supreme Court, among other things, imputed an annual income of $80,000 to the defendant and determined that the defendant was entitled to child support in excess of the statutory cap.
The Appellate Division found that plaintiff’s contention that insufficient income was imputed to the defendant was without merit. The defendant testified at the trial that her amended 2017 tax return showed that she had an annual income of $45,436 from her business, Lavish Layette. However, the bookkeeper for Lavish Layette testified that the defendant received disbursements from the business in 2017 totaling $64,836.71. Based upon the defendant’s admissions that she utilized cash from the business to pay for certain personal expenses, as well as some employee salaries, the Supreme Court providently exercised its discretion in imputing an annual income of $80,000 to the defendant.
The Appellate Division observed that where the combined parental income exceeds the statutory cap, the court, in fixing the basic child support obligation on income over the statutory cap, has the discretion to apply the factors set forth in Domestic Relations Law § 240(1–b)(f), or to apply the statutory percentages, or to apply both” ( Domestic Relations Law § 240[1–b][c][3]). The court must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap. “Such articulation should reflect a careful consideration of the stated basis for the court’s exercise of discretion, the parties’ circumstances, and the court’s reasoning why there should or should not be a departure from the prescribed percentage”. Supreme Court stated that it applied the child support percentage to the amount above the statutory cap primarily due to the parties’ considerable income and the needs of the children. Under the circumstances presented, the court providently exercised its discretion in doing so.
The Court noted that where, as here, the noncustodial parent is contributing the majority of the financial support of the parties’ children, “the court may determine that the noncustodial parent is entitled to declare the children as dependents on his or her income tax returns.” Under the circumstances here, the plaintiff was entitled to declare all of the parties’ unemancipated children as his dependents for income tax purposes.
Where the mother’s initial papers submitted in support of her application for an award of counsel fees did not seek relief under 22 NYCRR 130–1.1, the father did not receive sufficient notice of the alleged frivolous conduct, and, therefore, was not given “a reasonable opportunity to be heard.
In LeBoeuf v Greene, --- N.Y.S.3d ----, 2023 WL 3729753, 2023 N.Y. Slip Op. 02870(2d Dept.,2023) in July 2020, the parties entered into a stipulation giving the mother final decision-making authority and residential custody of the child, with parental access to the father. In September 2020, the mother moved to modify the stipulation based upon the father’s alleged misrepresentations to her that in August 2020 he drove with the child to visit his parents in Alabama when he in fact flew with the child. The mother’s motion papers did not seek an award of counsel fees. At a court conference while the motion remained pending and undecided, the father’s counsel acknowledged to the Supreme Court that the father had lied to the mother when he told her that he did not fly with the child to Alabama in August 2020. The mother’s counsel made an oral application for an award of counsel fees, and the court permitted the mother to submit a written application. The mother then filed a written application for an award of counsel fees, which the father opposed. Supreme Court awarded her counsel fees of $25,000.
The Appellate Division observed that it was clear from the record that the court awarded counsel fees pursuant to either 22 NYCRR 130–1.1 or Domestic Relations Law § 237(b). Under either standard the court improvidently exercised its discretion in granting the application. At the December 2, 2020 court conference, at which the Supreme Court permitted the mother to make a written application for counsel fees, the court did not state whether the application should be made under 22 NYCRR 130–1.1. Moreover, the court did not, either at the December 2, 2020 court conference or in the fee order, specifically make a finding that the father’s conduct was “frivolous” within the meaning of 22 NYCRR 130–1.1. Additionally, the mother’s initial papers submitted in support of her application for an award of counsel fees did not seek relief under 22 NYCRR 130–1.1, or set forth any statutory basis for an award of counsel fees. Under these circumstances, to the extent the court granted the mother’s application for an award of counsel fees pursuant to 22 NYCRR 130–1.1, the father did not receive sufficient notice of the alleged frivolous conduct, and, therefore, was not given “a reasonable opportunity to be heard.
To the extent that the Supreme Court granted the mother’s application for an award of counsel fees under 22 NYCRR 130–1.1, the court improperly based its determination to grant the application, in part, on the father’s act of lying to the mother about flying to Alabama with the parties’ child, since this conduct occurred outside of the proceeding before the court. The court also based its determination to grant the mother’s application on misrepresentations the father made to the court during court conferences in September 2020 and October 2020. However, since the record did not contain transcripts of those court proceedings, it was unable to determine what, if any, “material factual statements that are false” were asserted by the father at those court conferences (22 NYCRR 130–1.1[c][3]).
To the extent that the Supreme Court granted the mother’s application for an award of counsel fees pursuant to Domestic Relations Law § 237(b), the court did not adequately consider the disparate financial circumstances of the parties. Under the unique circumstances of this case, the Supreme Court improvidently exercised its discretion in granting the mother’s application for an award of counsel fees.
Defendant’s testimony as to his income, coupled with undisputed evidence of his educational background and his vague denial of recollection as to whether the accusations underlying his termination from his previous full-time position had merit, provided a basis for the court to impute income to the defendant. Court should not have, sua sponte, taken judicial notice of information regarding the defendant’s income on a certain website.
In Anyanwu v Anyanwu, --- N.Y.S.3d ----, 2023 WL 3729819, 2023 N.Y. Slip Op. 02859 (2d Dept.,2023) the Appellate Division affirmed the judgment of divorce which insofar as appealed from, awarded the plaintiff maintenance of $423.50 per month for a period of seven years and child support of $1,876.44 per month. The plaintiff and the defendant were married in December 1994 and have four children, three of whom were unemancipated at the time of trial. In January 2017, the plaintiff commenced this action for a divorce and ancillary relief. After a nonjury trial, the Supreme Court issued a decision in which it, inter alia, imputed income to the defendant in the amount of $92,942 per year. The court subsequently entered a judgment of divorce upon its decision after trial, awarding the plaintiff maintenance in the sum of $423.50 per month for a period of seven years and child support in the sum of $1,876.44 per month, calculated with the defendant’s imputed income, among other things.
The Appellate Division found that Supreme Court providently exercised its discretion by imputing $92,942 in annual income to the defendant when computing his maintenance and child support obligations. The defendant’s testimony as to his income in 2017, coupled with the undisputed evidence of his educational background and his vague denial of recollection as to whether the accusations underlying his termination from his previous full-time position had merit, provided a basis for the court, in the exercise of its discretion, to impute income to the defendant. Moreover, while the defendant is correct that the court should not have, sua sponte, taken judicial notice of information regarding the defendant’s income on a certain website (see OneWest Bank, FSB v. Berino, 158 A.D.3d 811, 813, 71 N.Y.S.3d 563; HSBC Bank USA, N.A. v. Taher, 104 A.D.3d 815, 818, 962 N.Y.S.2d 301), this error was harmless. The defendant’s own admission to earning more than $96,000 in 2017 provided an independent basis for the court to impute income to him in the amount of $92,942 per year.
There is no express requirement to submit certified copies of birth certificates in a proceeding pursuant to FCA § 661(a). Although an application to USCIS for SIJS must be supported by documentary evidence of the applicant’s age, Family Court is only required to ascertain the juvenile’s age. There is no statutory requirement that a petitioner submit any particular evidence to establish the juvenile’s age.
In Matter of Joel A.A.R.,.--- N.Y.S.3d ----, 2023 WL 3729811, 2023 N.Y. Slip Op. 02881(2d Dept.,2023) the Appellate Division reversed the orders of the family court and made specific findings to enable the child to petition the United States Citizen and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J). It held that contrary to the Family Court’s determination, there is no express requirement to submit certified copies of birth certificates in a proceeding such as this pursuant to Family Court Act § 661(a) (see generally Matter of Rosa Amanda L.R. v. Carlos Arnoldo O.R., 189 A.D.3d 1250, 134 N.Y.S.3d 223). Although an application to USCIS for SIJS must be supported by “[documentary evidence of the [applicant’s] age, in the form of a valid birth certificate, official government-issued identification, or other document that in USCIS’ discretion establishes the [applicant’s] age” (8 CFR 204.11[d][2]), in proceedings pursuant to Family Court Act § 661(a), the Family Court is only required to ascertain the juvenile’s age, and there is no statutory requirement that a petitioner submit any particular evidence to establish the juvenile’s age. For purposes of this proceeding pursuant to Family Court Act § 661(a), the record supported a finding that the child was under the age of 21. Based upon its independent factual review, it found that the child’s best interests would be served by the appointment of the mother as his guardian. Pursuant to SCPA 1705(1)(a), “[u]pon presentation of the petition process shall issue ... [t]o the ... parents ... if such persons are within the state and their residences therein are known.” Nevertheless, even where, as here, a parent is not within the state and service upon that parent is not required pursuant to SCPA 1705(1)(a), the Family Court possesses discretion to issue process to any relative “domiciled in its county or elsewhere” (id. § 1705[3]). However, in this case, it found that the record supported dispensing with service on the father. The record supported findings that the child was under the age of 21 and unmarried; that the mother should have been appointed as the child’s guardian; and that the child was dependent on a juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i). Additionally, based upon its independent factual review, the record supported a finding that reunification of the child with his father was not a viable option due to parental abandonment and the record supported a finding that it would not be in the best interests of the child to return to Honduras, his previous country of nationality and last habitual residence.
Appellate Divison, Fourth Department
Screen shots of text messages between mother and children were properly admitted into evidence where the identity of the senders and receivers was sufficiently authenticated by the content of the text messages, as well as the grandmother’s testimony that she observed one of the children using his phone at the times the text messages were sent
In Matter of D.T., v. C.T., --- N.Y.S.3d ----, 215 A.D.3d 1232, 2023 WL 3160145, 2023 N.Y. Slip Op. 02202 (4th Dept.., 2023) the Appellate Division rejected the argument of the father and the attorney for the children (AFC) that the appeal should be dismissed due to the mother’s improper service of the notice of appeal (see CPLR 2103 [a]). Inasmuch as neither the father nor the AFC were prejudiced as a result of the mother’s mistake, it exercised its discretion to disregard the irregularity (citing CPLR 2001, 5520 [a]; M Entertainment, Inc. v. Leydier, 71 A.D.3d 517, 518, 897 N.Y.S.2d 402 [1st Dept. 2010]).
The Appellate Division rejected the mother’s contention that Family Court erred in admitting into evidence two exhibits containing screenshots of text messages between the mother and two of the children. The identity of the senders and receivers of the messages was sufficiently authenticated by the content of the text messages, as well as by the maternal grandmother’s testimony that she observed one of the subject children using his phone at the times the text messages were sent. Further, there was no evidence that any omitted material was necessary for explanatory purposes, and the mother was free to introduce other text messages between herself and the child that would have resolved any purported distortion caused by admitting in evidence only portions of the text conversation.
The Appellate Division rejected the mother’s contention that the AFC improperly substituted her judgment for that of the children. Pursuant to 22 NYCRR 7.2 (d), an attorney for the child “must zealously advocate the child’s position.” However, an attorney for the child is entitled to advocate a position that is contrary to a child’s wishes when the attorney is “convinced ... that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child” (22 NYCRR 7.2 [d] [3]). In circumstances when an attorney for the child advocates for a position that is contrary to the child’s wishes, the attorney is still required to “inform the court of the child’s articulated wishes if the child wants the attorney to do so, notwithstanding the attorney’s position” (22 NYCRR 7.2 [d] [3]). Here, the children’s wishes were made known to the court during the Lincoln hearing. Further, although the AFC substituted her judgment for that of the children, she was entitled to do so because the record established that the mother engaged in a pattern of alienating the children from the father, which was likely to result in a substantial risk of imminent, serious harm to the children.
The Appellate Division concluded that there was a sound and substantial basis in the record to support [the court’s] determination that it was in the children’s best interests to award sole custody to the father and a sound and substantial basis in the record supporting the determination to impose supervised visitation for the mother inasmuch as the record established that the mother frequently disparaged the father to the children, exposed the children to domestic violence, unwittingly allowed pornographic images of herself and her partner to be sent to the children’s mobile devices, and failed to maintain a stable home environment for a period of several years. It agreed with the mother that the court should have set a visitation schedule rather than ordering visitation as agreed upon by the parties inasmuch as the record demonstrated that an order directing supervised visitation as mutually agreed upon by the parties would be untenable under the circumstances. It modified the order accordingly and remitted the matter to Family Court to fashion an appropriate schedule for supervised visitation.
Supreme Court
Wife purged her contempt of court and satisfied the purge amount by way of serving her entire incarceration period but the balance of the Wife’s pendente lite child support and maintenance arrears remained due and payable by the Wife to the Husband
In T.H., v. M.B., --- N.Y.S.3d ----, 2023 WL 3731263, 2023 N.Y. Slip Op. 23166 ( Sup Ct, 2023) by Decision and Order dated March 30, 2023, the Court found the Wife guilty of civil contempt pursuant to Judiciary Law Section § 753(3), for her willful non-compliance with the terms of the orders of the Court by failing to pay monthly pendente lite spousal support in the total amount of $48,529. The Court gave the Wife until April 28, 2023, to purge her contempt by paying the Husband $24,264.50, or half of the full arrears due, or be subject to further sanction, including arrest. This matter reconvened on April 28, 2023, and the Wife did not fully purge her contempt. She paid a total of $3,500. The court issued an Order of Commitment committing the Wife to the Custody of the Sheriff of New York County for delivery to the New York City Department of Corrections to be held for a maximum term of three (3) weeks commencing April 28, 2023, unless she purged herself of her contempt by payment of$20,764.50 to the Husband. By Amended Order of Commitment dated May 16, 2023, the Court modified the Wife’s incarceration term to nineteen (19) days, commencing April 28, 2023 and ending on May 17, 2023. On May 17, 2023, the Wife was discharged from the custody of the New York City Department of Corrections. The Court now found that the Wife satisfied her purge amount of $20,764.50 by completing her incarceration period of nineteen days. The Court held that by serving the full term, the Wife had effectively satisfied the purge amount of $20,764.50. The Court found it was manifestly unjust to enter a money judgment against the Wife for the purge amount following her completed incarceration period. It held that it is either one or the other, not both. The Court ordered (1) that the Wife had purged her contempt of court and satisfied the $20,764.50 purge amount by way of serving her entire incarceration period; (2) that the balance of the Wife’s pendente lite child support and maintenance arrears of $24,264.50 under the Court’s March 30, 2023, Decision and Order remained due and payable by the Wife to the Husband; and (3) the Husband was entitled to a money judgment against the Wife in the sum of $24,264.50, representing the balance due on the total arrears amount of $48,529.
Family Court
Family Court denied the motion to dismiss the Neglect petition alleging a coercive and controlling relationship holding that the exercise of coercive and controlling behavior leading to conditions in which one parent is truly trapped, like a hostage, in a relationship and residence against their will, can fall below the minimum degree of parenting and constitute neglect.
In Matter of Aisha R., 2023 WL 3831887 (Fam Court, 2023) the dated October 13, 2022, the Administration for Children’s Services (”ACS”) alleged that the respondent, Ariel T., neglected the children by perpetrating acts of domestic violence against their mother, non-respondent Taisha R., in their presence. Family Court denied the motion to dismiss the petition alleging a coercive and controlling relationship. The facts alleged met the standard to survive a CPLR 3211(a)(7) motion. The most visible impact on the children alleged in the petition was that Arielle, a two-year old child, repeated the derogatory words Mr. T. used against Ms. R., including calling his mother “a bitch. The children were also negatively impacted by Mr. T.’s alleged use of them as tools in his campaign of control over Ms. R. The petition alleged that Mr. T. took all the children’s vital documents and repeatedly threatened to take the children away from Ms. R. if she does not listen to him. Utilizing the children to further exert power and control over Ms. R. creates a substantial risk of harm to not only Ms. R., but the children as well. As alleged, Mr. T.’ actions and choice to use the children as a means of control over Ms. R. showed a disregard for the well-being of the children that raised serious concern regarding his parental judgment and the effect his decisions have on the children’s mental and emotional state. In addition to the significant lack of parental judgment here, this behavior teaches the children unhealthy relationship dynamics and places them directly in between their parents. Additionally, from the power and control allegedly exerted, it could reasonably be inferred that Mr. T. inhibited Ms. R.’s own ability to provide a minimum degree of care for the children. As per the petition, Mr. T. does not allow Ms. R. to leave the home, accuses her of sleeping with everybody, does not allow her to see friends or family, takes her monthly SSI benefits, and confiscated the children’s vital documents. Without vital documents, Ms. R. was unable to even perform the basic function of enrolling her children in school, and without access to her own funds, she could not purchase necessities for herself and the children, let alone the occasional “extras” that grease the parenting wheel with small children. Additionally, the isolation from the friends and family who would provide multiple benefits and positive experiences for the children detracts from the children’s ability to build social skills and eliminates their opportunity to observe and learn what non-abusive relationships are. The exercise of coercive and controlling behavior leading to conditions in which one parent is truly trapped, like a hostage, in a relationship and residence against their will, can fall below the minimum degree of parenting and constitute neglect. Using derogatory language that the children repeat, using the children as tools to further control their mother, using isolating tactics that leave children feeling alone and unsupported, and unreasonably creating a tense home environment is not the way a reasonable and prudent parent would care for a child. Failing to distinguish this type of psychological abuse from the “undesirable but not neglectful” scenarios would mean that Family Court’s protection would not be extended to children who are impaired by non-physical forms of domestic violence.
In a juvenile delinquency proceeding the Respondent’s request for police records of officers who would not testify was granted. The Presentment Agency was not required to turn over records of non-testifying officers where Respondent had no reason to believe, and had made no offer of proof, that the records would impeach the credibility of any officer it would call to testify.
In Matter of E.S. --- N.Y.S.3d ----, 2023 WL 3265934, 2023 N.Y. Slip Op. 23135
(Fam Ct, 2023) a juvenile delinquency proceeding the Respondent’s request for police records of officers who will not testify was granted. The Presentment Agency contended that it was not required to turn over records of non-testifying officers where Respondent had no reason to believe, and has made no offer of proof, that the records would impeach the credibility of any officer it would call to testify. The Court observed that Section 245.20 of the Criminal Procedure Law provides for automatic discovery of certain categories of information favorable to the defense in a criminal proceeding, including broad disclosure of all evidence and information, including that which is known to police or other law enforcement agencies acting on the government’s behalf in the case, that tends to ... impeach the credibility of a testifying prosecution witness (CPL 245.20[1][k][iv]). Family Court noted that in Matter of Jayson C., the Appellate Division, First Department held that, although the Criminal Procedure Law is generally not applicable to proceedings under the Family Court Act (Family Ct Act § 303.1[1]), the denial of records available to criminal defendants under CPL 245.20(1)(k)(iv), which broadly requires disclosure of all impeachment evidence, deprived the respondent in a juvenile delinquency proceeding of equal protection of the law (Matter of Jayson C., 200 A.D.3d at 447, 159 N.Y.S.3d 40). Criminal Procedure law 245.20(1)(k) also provides for disclosure of six other categories of evidence, including all evidence and information that tends to “(i) negate the defendant’s guilt as to a charged offense; (ii) reduce the degree of or mitigate the defendant’s culpability as to a charged offense; (iii) support a potential defense to a charged offense; (v) undermine evidence of the defendant’s identity as a perpetrator of a charged offense; (vi) provide a basis for a motion to suppress evidence; or (vii) mitigate punishment.” Although the court in Matter of Jayson C. did not address the six remaining categories of information that must be disclosed pursuant to CPL 245.20(1)(k), the disclosure provided for therein mirrors and broadens the constitutional protections developed in case law, including the obligation of the state to disclose all evidence or information which is “favorable to the defense, material either to guilt or punishment, or affecting the credibility of prosecution witnesses” . Family Court Act § 331.2 and § 331.4 set forth the general scope of discovery in juvenile delinquency proceedings, which in addition to specific items set forth in the statute, directs that the Presentment Agency shall disclose to the respondent “anything required to be disclosed ... pursuant to the constitution of this state or of the United States” (FCA § 331.2 [1][g]). Thus, although the Family Court Act is silent regarding the specific statutory protections memorialized in CPL 245.20(1)(k)(i)-(iii), (v)-(vii), to deny this disclosure would violate the right to equal protection as per Matter of Jayson C. and as required by constitutional precedents. The court found that the first espoused rationale applies insofar as the records requested by Respondent generally would tend to be favorable to the defense. This portion of the motion was granted and the Presentment Agency was directed to produce to Respondent the police records of all officers assigned to the case, who assisted in the arrest, or who responded at the scene.
May 31, 2023
Appellate Division, First Department
Defendant was the monied spouse in light of the parties’ statements of net worth, which showed that defendant’s net worth was more than double that of plaintiff’s. Supreme Court providently exercised its discretion in holding plaintiffs’ motion in abeyance pending her submission of an updated statement of net worth.
In Binn v Binn, --- N.Y.S.3d ----, 2023 WL 3588204 (Mem), 2023 N.Y. Slip Op. 02759(1st Dept., 2023) the Appellate Division affirmed an order which granted the wife’s motion for counsel fees. It held that Supreme Court providently exercised its discretion in holding plaintiffs’ motion in abeyance pending her submission of an updated statement of net worth, instead of denying the motion without prejudice to renewal (see 22 NYCRR 202.16[k][2], [5])). Under the circumstances, directing the plaintiff to file an updated statement of net worth, rather than denying the motion with leave to renew, served the interests of justice and judicial economy. Further, the record did not support a finding that defendant was prejudiced by the court’s denial of his request to challenge plaintiff’s updated statement of net worth. It also found that the court correctly determined that defendant was the monied spouse in light of the parties’ statements of net worth, which showed that defendant’s net worth was more than double that of plaintiff’s. In addition, the finding was proper in view of the parties’ earning history and earning potential. The fact that plaintiff was able to pay her counsel fees did not preclude an award in her favor as plaintiff was not required to spend down finite assets to cover those fees.
Cyprus court’s determination that mother had not met her burden as to Grave Risk of Harm Defense is not tantamount to a determination on the merits of her domestic violence claims for purposes of the custody determination to be made by the New York court.
In Gould v Kontogiorge, --- N.Y.S.3d ----, 2023 WL 3633433, 2023 N.Y. Slip Op. 02824 (1st Dept.,2023) the mother appealed from an order of the Supreme Court, which, inter alia, directed her to reimburse plaintiff father, $1,900 for payments made to visitation supervisors through September 30, 2021, and, upon final resolution of this matter, to pay $4,687.90 for his and the child’s travel costs to New York from Cyprus (February 18, 2022 order). The Appellate Division held that the motion court should not have awarded the father reimbursement for the $1900 he allegedly paid to visitation supervisors, as he offered no proof of payment beyond unsupported assertions in his motion papers. His motion was unaccompanied by any documentation, or by affidavits from the visitation supervisors, substantiating the payments (Matter of Parente v. Parente, 193 AD3d 862 [2d Dept 2021] ). In turn, it vacated the finding of civil contempt (to the extent not already purged) and the resultant $6,437.50 counsel fee award imposed against the mother for failing to timely reimburse the father for this expense as set forth in the motion court’s orders of September 20 and 27, 2022. It affirmed the February 18, 2022 order, as the father did produce adequate proof of the costs of the child’s return to the U.S. from Cyprus. He submitted documentation of credit card charges for payments made to American Airlines in March 2021, on a Visa held by nonparties, and one of the nonparties is listed on the father’s Net Worth Statement as an individual who has extended him personal loans. However, that aspect of the order that limited the proof of domestic violence that the mother may try to introduce at the forthcoming custody trial to incidents that have occurred since the conclusion of the Hague Convention proceedings, was vacated. It found that the court correctly recognized “[a] decision under the Convention is not a determination on the merits of any custody issue, but leaves custodial decisions to the courts of the country of habitual residence” (Matter of Katz v. Katz, 117 AD3d 1054, 1055 [2d Dept 2014] ). However, it then effectively vested the Hague Convention proceedings with preclusive effect as to claims of domestic violence, by ruling that, at the impending custody hearing, the mother could only seek to introduce evidence of domestic violence that has occurred since those proceedings’ conclusion. There should have been no such temporal limitation imposed on the domestic violence evidence the mother may seek to introduce. The mother introduced affidavit testimony of domestic violence to buttress her “grave risk of harm” defense to the child’s return pursuant to Article 13(b) of the Convention. However, the Cyprus court’s determination that she had not met her burden as to such defense is not tantamount to a determination on the merits of her domestic violence claims for purposes of the custody determination to be made by the New York court. As the U.S. Supreme Court has recognized, “return [of a child pursuant to the Hague Convention] is merely a provisional remedy that fixes the forum for custody proceedings” (Golan v. Saada, __US__, 142 S Ct 1880, 1888 [2022]).
Appellate Division, Second Department
Family Court erred in granting motion to dismiss the custody petition on the ground of forum non conveniens. If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it must stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state.
In Water v Yacopino, --- N.Y.S.3d ----, 2023 WL 3607006, 2023 N.Y. Slip Op. 02792 (2d Dept.,2023) the parties had one child in common. In November 2013, the Family Court awarded the mother physical custody and the father parental access. In May 2021, the father commenced this proceeding to enforce the November 2013 order. The father argued, inter alia, that the mother violated the November 2013 order by relocating with the child to Texas and preventing the father from having parental access with the child. In July 2021, the mother moved, pursuant to Domestic Relations Law § 76–f to dismiss the petition on the ground of forum non conveniens. Family Court granted the mother’s motion. The Appellate Division observed that pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act,(UCCJEA), a court in this State which makes an initial custody determination has exclusive, continuing jurisdiction over that determination so long as, inter alia, one parent remains a resident of New York (see id. § 76–a[1] ). Domestic Relations Law § 76–f(1) provides that a court of this State which has jurisdiction under the UCCJEA may decline to exercise jurisdiction if it finds that New York is an inconvenient forum and that a court of another state is a more appropriate forum. The issue of inconvenient forum dismissal is addressed to the Family Court’s discretion after consideration of the statutory factors set forth in Domestic Relations Law § 76–f(2). ‘Particularly relevant’ to the analysis is the nature and location of evidence. It agreed with the Family Court that Texas was the more appropriate and convenient forum. The child had not resided in New York since May of 2020. The child also had no significant connection to New York since 2020, and the substantial, relevant evidence pertaining to the child’s care, protection, education, and personal relationships was in Texas, not New York. The statutory factors weighed in favor of the court’s determination to decline to exercise jurisdiction. Domestic Relations Law § 76–f(3) specifies that “[i]f a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state.” Accordingly, the Family Court erred in granting the motion to dismiss the petition, and it remitted the matter to the Family Court, for further proceedings pursuant to Domestic Relations Law § 76–f(3), including the entry of an order staying all proceedings in the above-entitled proceeding on condition that a child custody proceeding is promptly commenced in Texas.
Support Magistrate providently exercised her discretion when she imputed annual income to the father based upon his ability to work full time for minimum wage in calculating his child support obligation
In Matter of Lincor v Crowell, --- N.Y.S.3d ----, 2023 WL 3607026, 2023 N.Y. Slip Op. 02784 (2d Dept.,2023) the father filed a petition for a downward modification of his child support obligation. After a hearing, the Support Magistrate directed the father to pay child support of $86 per week. The Support Magistrate determined that the father had failed to submit competent medical evidence to support his claimed inability to work, and imputed annual income to the father based upon his ability to work full time for minimum wage in calculating his child support obligation. The Appellate Division affirmed finding that he failed to provide competent medical evidence to show that his alleged medical conditions prevented him from working. Thus, the Support Magistrate providently exercised her discretion.
Defendant was not deprived of her right to counsel pursuant to FCA § 262, nor were her constitutional due process rights violated, by the forensic evaluator’s request that she complete a parenting survey without the assistance of her counsel. There is no right to the participation or assistance of counsel.
In Primero v Lee, --- N.Y.S.3d ----, 2023 WL 3607048, 2023 N.Y. Slip Op. 02801(2d Dept.,2023) the parents were married in 2016 and had one child, born in October 2016. The plaintiff commenced the action for divorce in October 2021. The Supreme Court appointed a mental health professional to conduct a forensic evaluation of the parties and the child. As part of the evaluation, the forensic evaluator requested that the defendant complete a parenting survey without consulting anyone, including her attorney. The defendant did not complete the survey and moved to enjoin the forensic evaluator from requiring that she submit written answers to the survey or to allow her to consult with counsel regarding the content of the survey and responses to the questions contained in it prior to submitting written answers to the forensic evaluator, and to preclude the parties from seeking the production of the written response to the parenting survey in any discovery request pursuant to CPLR article 31. The court denied the motion. The Appellate Division affirmed. It held that defendant was not deprived of her statutory right to counsel pursuant to Family Court Act § 262, nor were her constitutional due process rights violated, by the forensic evaluator’s request that she complete a parenting survey without the assistance of her counsel. Even in those instances where counsel has been permitted to be present for a client’s forensic examination in the context of a termination of parental rights proceeding, or in the context of a pre-retention psychiatric examination, it has been determined that “there is no right to the participation or assistance of counsel”, and counsel “who interferes in any way with the conduct of such examination may rightly be excluded” (Matter of Alexander L., 60 N.Y.2d at 329, 469 N.Y.S.2d 626, 457 N.E.2d 731).
Family Court may revoke a suspended judgment after a hearing if it finds that the parent failed to comply with one or more of the conditions of the suspended judgment. A parent’s attempt to comply with the literal provisions of the suspended judgment is not enough. The parent must also have gained insight into the problems that were preventing the children’s return to his or her care.
In Matter of Marish G, --- N.Y.S.3d ----, 215 A.D.3d 966, 2023 WL 3083030, 2023 N.Y. Slip Op. 02124 (2d Dept.,2023) the Appellate Division affirmed an order which found that the mother violated the terms and conditions of the suspended judgments contained in two prior orders of the court (one as to each child), revoked the suspended judgments, and terminated the mother’s parental rights. It held that the Family Court may revoke a suspended judgment after a hearing if it finds, by a preponderance of the evidence, that the parent failed to comply with one or more of the conditions of the suspended judgment. When determining compliance with a suspended judgment, it is the parent’s obligation to demonstrate that progress has been made to overcome the specific problems which led to the removal of the children. A parent’s attempt to comply with the literal provisions of the suspended judgment is not enough. The parent must also have gained insight into the problems that were preventing the children’s return to his or her care. A preponderance of the evidence established that the mother failed to comply with the conditions of the suspended judgments during their one-year terms and that she failed to demonstrate that she had made progress to overcome the specific problems which led to the removal of the subject children. The petitioner was not required to prove that it had exercised diligent efforts to reunify the mother and the children since the mother had previously admitted that she permanently neglected the children. A separate dispositional hearing was not required before revoking the suspended judgments and terminating her parental rights. The Family Court may enforce a suspended judgment without the need for a separate dispositional hearing where, as here, the record demonstrates that the court has presided over prior proceedings from which it became acquainted with the parties, and the record showed that the court was aware of and considered the child[ren]’s best interests.
The legality of a marriage is to be determined by the law of the place where it is celebrated. The parties’ religious marriage in Florida was not valid under Florida law since Florida requires a marriage license for a marriage to be valid.
In Bernstein v Benchemoun, --- N.Y.S.3d ----, 2023 WL 3486325, 2023 N.Y. Slip Op. 02637 (2d Dept., 2023) the parties were married on February 7, 2013, in a Jewish religious ceremony in Florida. At the ceremony the parties executed a religious marriage contract, known as a ketubah, but they did not obtain a marriage license from the State of Florida. The parties then came to New York, where they executed a second ketubah in the presence of a rabbi. In June 2018, the plaintiff commenced the action for a divorce. The defendant moved, inter alia, pursuant to CPLR 3211(a) to dismiss the complaint on the ground, among others, in effect, of lack of subject matter jurisdiction because there was no valid marriage between the parties. Supreme Court granted the defendant’s motion. The Appellate Division affirmed. It observed that the general rule is that the legality of a marriage is to be determined by the law of the place where it is celebrated. Since 1967, Florida has required a marriage license for a marriage to be valid, and a person solemnizing a marriage must require that the parties to the marriage produce a marriage license. The parties’ religious marriage in Florida was not valid under Florida law and was not cognizable in New York. The plaintiff contended that a marriage was solemnized in New York when the parties executed a second ketubah in New York, in the presence of a rabbi. However, the rabbi who supervised the execution of the second ketubah testified that he never solemnized a marriage, and could not have solemnized a marriage since the parties were already married under Jewish law. The Appellate Division held that a finding that there was a solemnized marriage would require an analysis of religious doctrine, which could offend the First Amendment of the United States Constitution (citing First Presbyt. Church of Schenectady v. United Presbyt. Church in U.S. of Am., 62 N.Y.2d 110; Avitzur v. Avitzur, 58 N.Y.2d 108). Thus, under the circumstances, the Supreme Court could not determine that there was a cognizable marriage in New York.
Where an order of the supreme court or of another court of competent jurisdiction requires support of the child, the Family Court may only entertain applications to enforce or modify the order. Because there was an order of support the Support Magistrate did not have jurisdiction to entertain that branch of the petition.
In Dawson v Iskhakov, --- N.Y.S.3d ----, 2023 WL 3486585, 2023 N.Y. Slip Op. 02660 (2d Dept.,2023) the parties were divorced and had one child. In their April 17, 2017 judgment of divorce, issued on consent, the parties agreed that they would each pay child support to the child’s maternal grandmother. In June 2021, the mother filed a petition, seeking, child support. A Support Magistrate dismissed the petition for lack of subject matter jurisdiction. Family Court denied the mother’s objections. The Appellate Division affirmed. It held that Family Court possesses only the power which is explicitly conferred on it by statute. Pursuant to Family Court Act § 461(a), “[i]n the absence of an order of the supreme court or of another court of competent jurisdiction requiring support of the child, the family court may entertain a petition and make an order for its support.: Family Court Act § 461(b) clarifies that, where “an order of the supreme court or of another court of competent jurisdiction requires support of the child,” the Family Court may only entertain applications to enforce or modify the order. Here, the petition sought, inter alia, to establish an order of support rather than modify or enforce an existing order. Because there was already an order of support in effect that was issued by the Supreme Court, the Support Magistrate did not have jurisdiction to entertain that branch of the petition.
Family Court Act § 1046(a)(ii) permits findings of abuse against more than one caretaker where multiple individuals had access to the child in the period in which the injury occurred, and, in such cases, the petitioner is not required to establish which caregiver actually inflicted the injury or whether they did so together.
In Matter of Erica H.-J, --- N.Y.S.3d ----, 2023 WL 3486499, 2023 N.Y. Slip Op. 02661 (2d dept.,2023) on the morning of Monday, January 18, 2016, the child Erica H.-J., who was then 23 months old, was admitted to a hospital with a lacerated liver, which was potentially life-threatening, and various other injuries. The petitioner commenced a child protective proceeding against Erica’s mother, Erica’s father, and the father’s girlfriend, Aisha B., alleging that they had abused Erica. The petitioner commenced a separate proceeding against the mother, alleging that she had, by the same conduct, derivatively neglected her child Nadia H. The Family Court conducted a fact-finding hearing, at which the evidence indicated that on the weekend immediately preceding her hospitalization, Erica had visitation with the father, and she spent some of the weekend with the father and Aisha B., and the remainder of the weekend with the mother. Family Court determined that the mother, the father, and Aisha B. were responsible for the care of Erica during the weekend preceding her hospitalization, and, while it could not be determined which of them had inflicted Erica’s injuries, they could all be held responsible for the abuse, on a theory of res ipsa loquitur. The court found, inter alia, that the mother abused Erica, and derivatively neglected Nadia H. The Appellate Division affirmed. It noted that under Family Court Act § 1046(a)(ii), a prima facie case of child abuse or neglect may be established by evidence of (1) an injury to a child that would ordinarily not occur absent an act or omission of the respondents, and (2) that the respondents were the caretakers of the child at the time the injury occurred. Once the petitioner has established by a preponderance of the evidence that child abuse has occurred, Family Court Act § 1046(a)(ii) “authorizes a method of proof which is closely analogous to the negligence rule of res ipsa loquitur” (Matter of Philip M., 82 N.Y.2d 238). The statute “permits findings of abuse against more than one caretaker where multiple individuals had access to the child in the period in which the injury occurred, and, in such cases, “the petitioner is not required to establish which caregiver actually inflicted the injury or whether they did so together”. Once the petitioner establishes a prima facie case, “the burden of going forward shifts to respondents to rebut the evidence of parental culpability. Petitioner established a prima facie case of child abuse against the mother through medical records and expert medical testimony showing that the injuries sustained by Erica would not ordinarily occur absent an act or omission of the caregiver, and that the mother was a caretaker of Erica during the relevant time period. In response to this showing, the mother did not demonstrate that Erica’s injuries occurred when she was in the exclusive care of the father, or otherwise rebut the presumption of culpability. Accordingly, the Family Court properly determined that the petitioner established, by a preponderance of the evidence, that the mother abused Erica. Moreover, the court properly found that the mother’s derivative neglect of Nadia H. was established by a preponderance of the evidence.
A person is a proper respondent in an article 10 proceeding as an other person legally responsible for the child’s care if that person acts as the functional equivalent of a parent in a familial or household setting. The determination is a discretionary, fact-intensive inquiry.
In Matter of Serenity R, --- N.Y.S.3d ----, 215 A.D.3d 854, 2023 WL 2994938, 2023 N.Y. Slip Op. 02009 (2d Dept.,2023) the Appellate Division found that Truman C. abused the child Serenity R. and derivatively neglected the child Lorenzo C. The Appellate Division affirmed. It held that Family Court correctly found that he was a person legally responsible for Serenity R. Child protective proceedings encompass only abuse or neglect by a person who is a parent or other person legally responsible for the child’s care. A person legally responsible is defined as the child’s custodian, guardian, [or] any other person responsible for the child’s care at the relevant time. (Family Ct Act § 1012[g]). A person is a proper respondent in [a Family Court Act] article 10 proceeding as an other person legally responsible for the child’s care if that person acts as the functional equivalent of a parent in a familial or household setting (Matter of Yolanda D., 88 N.Y.2d 790). “Determining whether a particular person has acted as the functional equivalent of a parent is a discretionary, fact-intensive inquiry which will vary according to the particular circumstances of each case. Factors such as the frequency and nature of the contact between the child and respondent, the nature and extent of the control exercised by the respondent over the child’s environment, the duration of the respondent’s contact with the child, and the respondent’s relationship to the child’s parent[s] are some of the variables which should be considered and weighed by a court”. “The definition expressly encompasses paramours who regularly participate in the family setting and who therefore share to some degree in the supervisory responsibility for the children”. Here, Serenity R.’s credible testimony established that the appellant, who was the boyfriend of Serenity R.’s mother, lived in the same home as her for two months prior to the sexual abuse, and would assist in watching her and cooking for her. Moreover, the evidence adduced at the fact-finding hearing was sufficient to prove, by a preponderance of the evidence, that the appellant sexually abused Serenity R. Further, the Family Court correctly concluded that the appellant derivatively neglected Lorenzo C. “Where a person’s conduct toward one child demonstrates a fundamental defect in the parent’s understanding of the duties of parenthood, or demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in his or her care, an adjudication of derivative neglect with respect to the other children is warranted.” “In determining whether a child born after the underlying acts of abuse should be adjudicated derivatively neglected, the ‘determinative factor is whether, taking into account the nature of the conduct and any other pertinent considerations, the conduct which formed the basis for a finding of abuse or neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists. The court correctly determined that, given the seriousness of his conduct in sexually abusing Serenity R., the risk to Lorenzo C. remained despite the fact that approximately two years had passed between the sexual abuse of Serenity R. and the birth of Lorenzo C.
Appellate Divison, Third Department
A parent's lack of respect for a transgender child’s gender identity, chosen name, and preferred pronouns are factors in a custody determination
In Matter of Laura E v John D., --- N.Y.S.3d ----, 2023 WL 3355656, 2023 N.Y. Slip Op. 02568 (3d Dept.,2023) the Appellate Division, inter alia, affirmed an order which modified a consent order and granted the mother sole legal custody and primary physical custody of the child. In focusing on whether Family Court’s custody and parenting time determinations served the bests interests of the child the Court observed that the subject child identified as male and used the gender-neutral pronouns they/them. The child’s gender identity, and their chosen name and preferred pronouns, were also a point of major contention between the parties. The father explained that addressing the child by their chosen name or preferred pronouns was contrary to his Catholic faith. Although the father initially agreed to engage in family counseling with the child and the mother, the counselor testified that this was short-lived. During the third family counseling session, the father took issue with the counselor addressing the child with the child’s preferred pronouns (they/them), which led to an argument between the father and the child. The father then stormed out of the family session. The counselor continued to treat the child and revealed that the child often reported distress at the father’s refusal to respect the child’s chosen name and preferred pronouns. The counselor further testified regarding a study that showed that suicide rates among transgender and gender nonbinary people are halved if the individual feels that their pronouns are respected in their daily lives.
May 10, 2023
Appellate Division, First Department
The parties’ unsuccessful investments into various business interests during the marriage are not subject to scrutiny for wasteful dissipation in the absence of any evidence that the defendant acted recklessly or in bad faith
In Parker v Parker, 2023 WL 3236134 (1st Dept.,2023) the Appellate Division affirmed a judgment which to the extent appealed from determined that SICM Management LLC, Far East Restaurant Partners/Bice Australia, Green Partners LLC, and KNIC Properties LP had no value as of date of commencement, thus making no distribution of these businesses, and credited plaintiff wife $2,440,618.03 representing 30% of the value of Next Jump LLC as of date of commencement and $818,693.20 representing 40% of the value of Maris–Cathare Wines as of date of commencement; declined to credit the wife for defendant husband’s alleged wasteful dissipation of marital assets; declined to award the wife any spousal maintenance; determined that the apartment located at 4 East 66th Street was marital property to be immediately sold, with the net proceeds subject to equal distribution; declined to award the wife counsel fees, and declined to impose sanctions on the wife, except that it modified the judgment to the extent of crediting the wife 50% of the value of Next Jump and Cathare, and otherwise affirmed, without costs.
The Appellate Division found that the marital share of Next Jump was valued based on a buyout offer near the date of commencement, which was declined by the parties, for $8,135,393.42, and the husband testified that the marital share of assets owned by Cathare were worth approximately $2 million. The remaining business interests were assigned zero value, and in the absence of any evidence to the contrary, there was no basis to reverse this finding.
The Appellate Division held that where both spouses equally contribute to a marriage of long duration, the division should be as equal as possible. The parties were married for 17 years, during which the plaintiff managed the parties’ households and acted as the children’s primary caretaker, and she held title with the defendant to Cathare and Next Jump, reflecting their intention to jointly own these investments fueled by marital funds. It found that the plaintiff should have been credited 50% of the value of these business interests.
The Appellate Division held that the court properly rejected the plaintiff’s wasteful dissipation claims. The parties’ unsuccessful investments into various business interests during the marriage are not subject to scrutiny in the absence of any evidence that the defendant acted recklessly or in bad faith.
The Appellate Division held that in declining to award maintenance, the court properly considered the factors set forth in Domestic Relations Law § 236(B)(6), including the considerable equitable distribution award at her disposal. The parties’ lavish marital lifestyle came to an end in 2012, years prior to the commencement of the divorce, when the defendant left his position at Deutsche Bank to embark on his own business endeavors.
The Appellate Division held that the court providently exercised its discretion in ordering that plaintiff pay her own counsel fees in view her distributive award, and the unreasonable positions she adopted during the litigation, which delayed the proceedings and incurred additional counsel fees
Appellate Division, Second Department
The court properly considered the financial assistance the plaintiff received from his parents in deciding whether he was the monied spouse. He had the resources to pay far more than the defendant incurred in counsel fees, and he had a net worth that was exponentially greater than that of the defendant at the outset of the marriage
In Plotkin v Esposito-Plotkin, --- N.Y.S.3d ----, 2023 WL 3215307, 2023 N.Y. Slip Op. 02336(2d Dept.,2023) shortly before their marriage in 2011, the parties executed a prenuptial agreement, which stated that the defendant had a net worth of approximately $350,000 while the plaintiff’s net worth was approximately $11.5 million, primarily based upon his beneficial interests in two irrevocable trusts valued at $11 million. The defendant stopped working in 2013 after the birth of the parties’ first child. In November 2018, the plaintiff moved out of the marital home. In December 2018, the plaintiff commenced the action for a divorce. In February 2019, the parties executed a pendente lite stipulation in which the plaintiff agreed to pay for the vast majority of the defendant’s and the children’s living expenses, in addition to $20,000 in counsel fees to the defendant’s attorneys. In October 2019, the defendant moved, inter alia, for an award of interim counsel fees of $75,000. At that point, the defendant had incurred approximately $50,000 in counsel fees and costs, while the plaintiff had incurred more than $100,000 in counsel fees. Supreme Court directed the plaintiff to pay interim counsel fees to the defendant’s attorneys of $50,000. The plaintiff failed to pay the fee award. In June 2020, the defendant moved, inter alia, to hold the plaintiff in criminal contempt. The plaintiff opposed, arguing that he was financially unable to pay the award. Supreme Court held the plaintiff in civil contempt without a hearing for his failure to pay the interim counsel fees. The Appellate Division affirmed. It held that Supreme Court properly determined that the plaintiff was the monied spouse. Since the defendant stopped working after the birth of the parties’ first child the plaintiff supported the family, either through his employment with his father’s business or through direct assistance from his parents. The court properly considered the financial assistance the plaintiff received from his parents in deciding whether he was the monied spouse. The plaintiff had the resources to pay far more than the defendant incurred in counsel fees, and he had a net worth that was exponentially greater than that of the defendant at the outset of the marriage. The Appellate Division held that the defendant did not clearly violate 22 NYCRR 202.16(k)(2) by submitting an eight-month-old statement of net worth with her motion, for interim counsel fees, nor did the Supreme Court improvidently exercise its discretion in accepting it. The plaintiff’s contention that the defendant’s statement of net worth failed to accurately describe her financial circumstances because it did not include benefits she received under the parties’ pendente lite stipulation was without merit. The defendant included the pendente lite stipulation with her moving papers and, as a result, the information contained in it was before the court. Moreover, the defendant submitted “appropriate evidence” demonstrating substantial compliance with 22 NYCRR 1400.2 and 1400.3, which, among other things, require attorneys in domestic relations matters “to provide [their] client[s] with written, itemized bills at least every 60 days”.
Regarding the Supreme Court’s civil contempt finding, in the absence of a material factual issue, the plaintiff was not entitled to an evidentiary hearing before being held in civil contempt.
Appellate Divison, Third Department
One parent may be held accountable for the neglectful acts of the other if he or she knew or should reasonably have known that the child was in danger
In Matter of Nina W, --- N.Y.S.3d ----, 2023 WL 3235311, 2023 N.Y. Slip Op. 02355 (3d Dept.,2023) Respondent was the mother of a child (born in 2003). The child lived with the mother “on and off” for the first half of her life, otherwise residing with a maternal aunt. Following one extended absence on the mother’s part, the father was awarded physical custody of the child, with the mother retaining joint legal custody. In July 2020, petitioner commenced this neglect proceeding against the mother, alleging, as relevant here, that she placed the child at imminent risk of harm by allowing the child to remain in the father’s home. After a fact-finding hearing, Family Court determined that the child’s condition was impaired or in imminent danger of being impaired and that the harm to the child arose from the mother’s abdication of her parental responsibilities and failure to exercise a minimum degree of care in providing the child with proper supervision, and the court accordingly adjudged the child neglected. The Appellate Division affirmed. It pointed out that, one parent may be held accountable for the neglectful acts of the other if he or she knew or should reasonably have known that the child was in danger. The mother did not dispute that the child suffered physical, mental or emotional impairment while living in the father’s home, nor did she deny her contemporaneous knowledge of the child’s impairment. Rather, she asserted that she could not neglect the child while the child was out of her physical custody. The Appellate Division held that parents may not avoid their responsibilities to their children merely because the children are not in their custody. One of the allegations of neglect was based on events that occurred the same year the petition was filed: when approached by a caseworker to see whether the mother would be willing to allow the child to temporarily reside with her, the mother declined, despite knowing that the child’s residence in the father’s home was exposing her to the father’s drug and alcohol abuse. The mother also declined to otherwise plan for the child, preferring that she go to a group home or adolescent facility. By failing to plan for her child and allowing her to remain in the father’s home, the mother did not act as a reasonable and prudent parent, and this failure exposed the child to the imminent threat of further impairment. “The fact that the child had disciplinary problems and [the mother] had initially sought assistance does not foreclose a finding of neglect where the parent thereafter refuses to act reasonably or to cooperate in efforts at addressing the child’s problems.
Appellate Divison, Fourth Department
Screenshots of text messages between the mother and two of the children were admissible where the identity of the senders and receivers of the messages was sufficiently authenticated by the content of the text messages ”as well as grandmother’s testimony that she observed one of the children using his phone at the times the text messages were sent.
In Matter of Thompson v Thompson, --- N.Y.S.3d ----, 2023 WL 3160145, 2023 N.Y. Slip Op. 02202 (4th Dept., 2023) the Appellate Division rejected the mother’s contention that Family Court erred in admitting into evidence two exhibits containing screenshots of text messages between the mother and two of the children. The identity of the senders and receivers of the messages was sufficiently authenticated by the content of the text messages ”as well as by the maternal grandmother’s testimony that she observed one of the children using his phone at the times the text messages were sent. Further, there was no evidence ... that any omitted material was necessary for explanatory purposes, and the mother was free to introduce other text messages between herself and the child that would have resolved any purported distortion caused by admitting in evidence only portions of the text conversation.
The Appellate Division rejected the mother’s contention that the AFC improperly substituted her judgment for that of the children. Pursuant to 22 NYCRR 7.2 (d), an attorney for the child must zealously advocate the child’s position. However, an attorney for the child is entitled to advocate a position that is contrary to a child’s wishes when the attorney is “convinced ... that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child (22 NYCRR 7.2 [d] [3]). In circumstances when an attorney for the child advocates for a position that is contrary to the child’s wishes, the attorney is still required to inform the court of the child’s articulated wishes if the child wants the attorney to do so, notwithstanding the attorney’s position. Here, the children’s wishes were made known to the court during the Lincoln hearing. Further, although the AFC substituted her judgment for that of the children, she was entitled to do so because the record established that the mother engaged in a pattern of alienating the children from the father, which was likely to result in a substantial risk of imminent, serious harm to the children.
Supreme Court
In awarding possession of a companion animal in a divorce action the best interest of the animal, a dog, warranted a time-sharing schedule
In Conte v Conte, 2023 WL 3239943 (Table), 2023 N.Y. Slip Op. 50409(U) (Sup Ct, 2023) the parties to this divorce action had been living apart since July 17, 2022. On April 18, 2023 a hearing was held to determine custody of the parties’ dog, “King”. The Court observed that pursuant to DRL § 236(B)(5)(15), in awarding possession of a companion animal in a divorce action the court shall consider the best interest of such animal. In determining the best interests of a companion animal under DRL § 236(B)(5)(15), the reviewing court should consider the totality of circumstances by weighing relevant factors applicable to the care of a companion animal. Salient factors for a court to consider include: the involvement, or absence, of each party in the companion animal’s day-to-day life; the availability and willingness of each party to care for the companion animal; each party’s involvement in health and veterinary care decisions; the quality of each party’s respective home environment; the care and affection shown towards the companion animal; and each party’s fitness and caretaking abilities. No single factor is dispositive.” L.B. v. C.C.B. 77 Misc 3d 429 [Kings County Supreme Court, 2022]. The Court found that both parties had been involved in King’s life, although the wife had been more involved in his medical care. Both parties were available and willing to care for King. The court determined that a time-sharing schedule was in King’s best interest.
May 1. 2023
Appellate Division, First Department
Executive Order 8.202.8 tolled the statute of limitations until that order and subsequent Executive Orders extending the tolling period were rescinded. Since the period of the toll must be excluded from the calculation of the filing deadline, the juvenile delinquency petitions were timely filed on July 2, 2021
In Matter of Isaiah H., --- N.Y.S.3d ----, 2023 WL 2603170, 2023 N.Y. Slip Op. 01587 (1st Dept.,2023) the Appellate Division, reversed an order which granted the respondent’s motion to dismiss the petitions charging him with acts, which, if committed by an adult, would constitute crimes, and the matter was remanded to Family Court for further proceedings. It held that Family Court erred in dismissing the petitions as untimely filed. By Executive Order No. 8.202.8, issued on March 20, 2020, due to the Covid–19 pandemic, the “time limit[s] for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state” were “tolled” (9 NYCRR 8.202.8; see Matter of Oustatcher v. Clark, 198 A.D.3d 420, 421, 155 N.Y.S.3d 12 [1st Dept. 2021]). “A toll suspends the running of the applicable period of limitation for a finite time period, and the period of the toll is excluded from the calculation of the relevant time period. However, a suspension “simply delays expiration of the time period until the end date of the suspension”. By its plain terms, Executive Order 8.202.8 tolled the statute of limitations, until that order and subsequent Executive Orders extending the tolling period were rescinded by Executive Order 8.210, issued on June 24, 2021, and effective the next day (9 NYCRR 8.210). Since the period of the toll must be excluded from the calculation of the filing deadline, the juvenile delinquency petitions were timely filed on July 2, 2021. Respondent allegedly committed his first unlawful act on December 21, 2019. Normally, the filing deadline for the petitions would have been the respondent’s 18th birthday – June 7, 2021, which was 534 days after he allegedly committed the first act. When the first executive order took effect on March 20, 2020, there were 444 days remaining before the respondent’s 18th birthday. By adding 444 days to June 24, 2021, when the executive order’s tolling provisions were terminated, the Agency’s deadline for filing the petitions was August 25, 2022. Here, the Agency refiled and served the second set of petitions on July 2, 2021, only eight days after the executive orders were rescinded. The order rescinding the prior Executive Orders meant that the statute of limitations would start running again, “picking up where it left off” (Artis v. District of Columbia, ––– U.S. ––––, 138 S. Ct. 594, 601, 199 L.Ed.2d 473 [2018]).
Appellate Division, Second Department
Where the plaintiff advised the defendant in an email that he would be “willing to cover the entire cost of [the child’s] education” if the child attended a particular school Supreme Court providently exercised its discretion in directing the plaintiff to pay 100% of the child’s tuition
In Abayomi v Guevara, --- N.Y.S.3d ----, 2023 WL 2904377, 2023 N.Y. Slip Op. 01880 (2d Dept.,2023) the plaintiff moved, inter alia, to modify the judgment of divorce to permit him to pay a portion of his child support obligation directly to the private school in which the child had been enrolled to cover his share of the tuition payment. There are no provisions in the order of support pertaining specifically to educational expenses or apportioning responsibility for that add-on expense between the parties. Supreme Court, denied his motion and, sua sponte, directed the plaintiff to pay 100% of the child’s tuition. The Appellate Division affirmed and rejected the plaintiffs argument that the Supreme Court improvidently exercised its discretion by requiring him to pay 100% of the child’s tuition. The evidence demonstrated that the plaintiff decided that the child should be enrolled in a particular private school, he commenced the application procedures for that school, and when he sought the defendant’s cooperation in the process, he advised the defendant in an email that he would be “willing to cover the entire cost of [the child’s] education” if the child attended that school. Further, the plaintiff did not contend that he was unable to support himself and pay 100% of the child’s tuition. Under the circumstances, it held that the Supreme Court providently exercised its discretion in directing the plaintiff to pay 100% of the child’s tuition (see Sinnott v. Sinnott, 194 A.D.3d at 877, 149 N.Y.S.3d 441; Matter of Weissbach v. Weissbach, 169 A.D.3d at 704, 95 N.Y.S.3d 85).
The presumption that parental access is in the best interests of the child, even when that parent is incarcerated, was overcome by a showing, that parental access would be harmful to the child’s welfare or not in the child’s best interests
In Matter of Romero-Flores v Hernandez, --- N.Y.S.3d ----, 2023 WL 2590751, 2023 N.Y. Slip Op. 01516(2d Dept.,2023) the father and the mother were the parents of one child. In January 2019, the father, who had been incarcerated since August 2011, filed a petition seeking parental access to the child. At the close of the father’s case at a hearing on his petition, the Family Court granted the motion of the attorney for the child to dismiss the petition. The Appellate Division affirmed. It held that parental access with a noncustodial parent is presumed to be in the best interests of the child, even when that parent is incarcerated. However, the presumption may be overcome upon a showing, by a preponderance of the evidence, that parental access would be “harmful to the child’s welfare or not in the child’s best interests.” The evidence demonstrated that the father had been incarcerated since 2011 for attempted murder and arson. The father had set fire to the mother’s vehicle and that fire spread to the mother’s family’s house. The fire caused the death of the child’s uncle and endangered the child as well as the mother, who the father knew were inside the house at the time. Additionally, the child was eight months of age at the time the father was incarcerated, and the father has had no contact with the child since that time. At the time of the hearing, the child was 11 years old and would be more than 18 years of age at the time of the father’s earliest release date. Under these circumstances, the court properly granted the motion
Where the plaintiff demonstrated that three years had passed since the judgment of divorce was entered, Supreme Court erred in summarily denying the plaintiff’s motion to upwardly modify the defendant’s basic child support obligation
In Cooper v Oliver --- N.Y.S.3d ----, 2023 WL 2994847, 2023 N.Y. Slip Op. 01981(2d Dept.,2023) the plaintiff moved, to modify the judgment of divorce to, among other things, upwardly modify the defendant’s basic child support obligation. Supreme Court, denied the motion. The Appellate Division held that as relevant here, a court may modify an award of child support where three years have passed since the award was entered, last modified, or adjusted (see Domestic Relations Law § 236[B][9][b][2][ii][A]). In support of the plaintiff’s motion, the plaintiff demonstrated that three years had passed since the judgment of divorce was entered. Under these circumstances, regardless of whether the plaintiff demonstrated a substantial change in circumstances, the Supreme Court erred in summarily denying that branch of the plaintiff’s motion which was to modify the judgment of divorce to upwardly modify the defendant’s basic child support obligation.
Consent to adoption is not required of a parent who evinces an intent to forego his or her parental rights and obligations by his or her failure for a period of six months to contact or communicate with the child or the person having legal custody of the child although able to do so
In Matter of Ryan --- N.Y.S.3d ----, 2023 WL 2994924, 2023 N.Y. Slip Op. 02010 (2d Dept.,2023) the child was born in March 2017. The child’s mother was killed in November 2018. In April 2021, the father was convicted of murder in the second degree for the killing of the mother. In June 2020, the petitioners filed a petition to adopt the child, alleging, inter alia, that pursuant to Domestic Relations Law § 111(2)(a), the father’s consent to adoption was not required. After a hearing, Family Court determined that the father had abandoned the child and that the father’s consent to the adoption of the child, therefore, was not required. The Appellate Division affirmed. It held that the petitioners met their burden of establishing, by clear and convincing evidence, that the father abandoned the child, and that the father’s consent to the adoption therefore was not required. Under Domestic Relations Law § 111(2)(a), consent to adoption is not required of a parent who evinces an intent to forego his or her parental rights and obligations by his or her failure for a period of six months to contact or communicate with the child or the person having legal custody of the child although able to do so. Here, the evidence at the hearing established that the father had no contact with the child since 2018. The father’s incarceration did not absolve him of the responsibility to maintain contact with the child. In addition, the evidence established that between March 2019, when the petitioners obtained custody of the child, and March 2022, when the hearing occurred, the father did not send any letters or gifts to the child or provide any financial support.
Custody determinations should generally be made only after a full and plenary hearing and inquiry. A court opting to forgo a plenary hearing must take care to clearly articulate which factors were or were not material to its determination, and the evidence supporting its decision
In Matter of Baez-Delgadillo v Moya, --- N.Y.S.3d ----, 2023 WL 2994903 (Mem), 2023 N.Y. Slip Op. 01994 (2d Dept.,2023) the parties, who were never married to each other, were the parents of a child born in 2012. The child had been in the physical custody of the mother since his birth. In September 2019, the mother filed a petition for sole legal and physical custody of the child. On December 16, 2021, the Supreme Court awarded the mother temporary custody of the child, awarded the father supervised parental access and directed the father to enroll in therapy. On the record that day, the court directed the father to enroll in batterer’s intervention and alcohol treatment programs. The father failed to comply with the court’s directives. In an order dated March 2, 2022, the court, without a hearing, granted the mother’s petition for sole legal and physical custody and suspended the father’s parental access to the child based on his failure to attend alcohol treatment and therapy. The Appellate Division reversed, It held that custody determinations should generally be made only after a full and plenary hearing and inquiry” (see S.L. v. J.R., 27 N.Y.3d 558, 563, 36 N.Y.S.3d 411, 56 N.E.3d 193). A court opting to forgo a plenary hearing must take care to clearly articulate which factors were—or were not—material to its determination, and the evidence supporting its decision. Similarly, visitation determinations should generally be made after a full evidentiary hearing to ascertain the best interests of the child”. Here, the Supreme Court erred in making a final custody determination without a hearing and without inquiring into the best interests of the parties' child. Moreover, the court failed to articulate the factors and evidence material to its determination The Supreme Court also erred in suspending the father’s parental access without determining the best interests of the child. Furthermore, the court improperly conditioned the father’s future parental access or reapplication for parental access rights upon his compliance with treatment The matter was remitted to the Supreme Court, to conduct a hearing and for new determinations.
Where a willful violation of an order of support is found, the determination as to the appropriate sanction lies within the Family Court’s discretion
In O’Keeffe, v O’Keeffe, --- N.Y.S.3d ----, 2023 WL 2994936, 2023 N.Y. Slip Op. 02006 (2d Dept.,2023) the Support Magistrate, inter alia, found that the father willfully failed to comply with his child support obligations and in an order of commitment the Family Court, in effect, confirmed so much of the order of disposition as found that the father willfully failed to comply with his child support obligations, and committed the father to the Nassau County Correctional Facility for a period of 90 days unless he paid the purge amount of $15,000. The Appellate Division rejected the father’s argument on appeal that the Family Court improperly issued an order of commitment since less drastic enforcement remedies were available, and that the purge amount set by the court was excessive. It held that where, as here, a willful violation of an order of support is found, the determination as to the appropriate sanction lies within the Family Court’s discretion. Under the circumstances of this case, the court did not improvidently exercise its discretion.
Appellate Divison, Fourth Department
Mother neglected the children by, among other things, failing to provide a safe environment for them.
In Matter of Cameron J.S., --- N.Y.S.3d ----, 2023 WL 2547887, 2023 N.Y. Slip Op. 01416 (4th Dept.,2023) the Appellate Division affirmed an order which adjudged that the mother neglected the children by, among other things, failing to provide a safe environment for them. (Family Ct Act § 1012 [f] [i] [B]). The evidence presented by the petitioner established that one of the mother’s adult children had previously sexually abused one of the subject children over the course of several years. That adult child was also mentally unstable, volatile, and violent, having physically fought with others in the home, punched holes in walls, and destroyed other property in the home. The evidence further established that the children witnessed those events and were, at times, the victims of those events. The police were repeatedly called to the residence to address issues involving the adult child, and his mere presence at the house left the subject children “uncomfortable” and “terrified.” Despite the petitioner’s requests that the mother adhere to a safety plan and ask the adult child to move from the residence, the evidence established that the adult child remained a constant presence in the home and that the mother refused to cooperate with the petitioner. It concluded that the evidence supported the determination that the mother failed to provide adequate supervision of the children. The mother’s actions in continuing to allow the adult child to reside in or visit the home placed the children “at substantial risk of harm.
April 16, 2023
Appellate Division, First Department
Appeal was rendered moot by the entry of the judgment of divorce in the underlying matrimonial matter, which terminated the automatic orders for the purpose of enforcement
In Bloom v Hilpert, --- N.Y.S.3d ----, 2023 WL 2875314 (Mem), 2023 N.Y. Slip Op. 01859 (1st Dept, 2023) the appeal from the order which denied defendant’s motion to direct plaintiff to reinstate family health insurance coverage pendente lite was dismissed as moot. The appeal was rendered moot by the entry of the judgment of divorce in the underlying matrimonial matter, which terminated the automatic orders for the purpose of enforcement and rendered the parties ineligible for joint health coverage
Appellate Division, Second Department
The award maintenance award was not improper even though it exceeded the amount the defendant requested in her statement of proposed disposition. 22 NYCRR 202.16[h) which requires the submission of a statement of proposed disposition does not abrogate judicial statutory authority to determine the amount of maintenance
In Novick v Novick, --- N.Y.S.3d ----, 2023 WL 2669469, 2023 N.Y. Slip Op. 01684 (2d Dept.,2023) the parties were married in 1992, and had three emancipated children. The plaintiff commenced this action for divorce in January 2017. The plaintiff, who was 57 years old at the time of trial, was self-employed in a dental practice and was the primary wage earner during the parties’ 24–year marriage. The defendant was a homemaker and the primary caretaker of the parties’ children and was not employed outside the home during the majority of the duration of the parties’ marriage. The judgment of divorce, dated August 7, 2019, inter alia, (1) awarded the defendant maintenance of $12,000 per month for nine years, based on income imputed to the defendant of $40,000 per year and income imputed to the plaintiff of $375,000 per year, (2) awarded the defendant 33% of the fair market value of the plaintiff’s dental practice, (3) awarded the defendant pendente lite arrears of $29,245.76, (4) awarded the defendant counsel fees of $55,000, and (5) awarded the plaintiff one half of the defendant’s Morgan Stanley IRA account. The Appellate Division affirmed these awards.
The Appellate Division affirmed the maintenance award and held that the court providently exercised its discretion in imputing income of only $40,000 per year to the defendant. The evidence established that while the defendant had earned two master’s degrees during the marriage, she was only employed outside the home for a brief time during the 24–year marriage during which time her earnings were not substantial. The award was not improper even though it exceeded the amount the defendant requested in her statement of proposed disposition (see 22 NYCRR 202.16[h). The court rule which requires the submission of a statement of proposed disposition does not abrogate judicial statutory authority to determine the amount of maintenance (see generally N.Y. Const art VI, § 30; People v. Ramos, 85 N.Y.2d 678, 687–688, 628 N.Y.S.2d 27 ).
The Appellate Division held that the Supreme Court providently exercised its discretion in awarding the defendant 33% of the value of the plaintiff’s dental practice. The 33% share accounted for the defendant’s direct and indirect contributions, including that of primary caretaker of the parties’ three children. The court did not overvalue the plaintiff’s dental practice by applying a 35% capitalization rate. The court appointed a forensic expert, who explained that the capitalization rate for professional service companies is typically 33.33% and that he applied a slightly higher capitalization rate to account for the “slightly above-average risk” associated with the plaintiff’s dental practice, and the court providently exercised its discretion in crediting the expert. It held that Supreme Court did not engage in impermissible double counting by distributing to the defendant a share of the dental practice in addition to maintenance, as the plaintiff’s dental practice constituted a tangible, income-producing asset, rather than an intangible asset (see Keane v. Keane, 8 N.Y.3d 115, 828 N.Y.S.2d 283).
However, the Supreme Court improvidently exercised its discretion in failing to provide for the distribution of the funds in the T.D. Ameritrade account titled in the defendant’s name. The defendant failed to provide any evidence that the account was her separate property, and thus, it was subject to equitable distribution. It modified the judgment of divorce to equally divide the proceeds from that account between the parties. And, since Supreme Court failed to explain how it arrived at its determination that the plaintiff owed the defendant $29,245.67 for pendente lite arrears, it remitted the matter to the Supreme Court for a hearing on the issue.
While the expressed wishes of the children to remain in Long Island with the father was not controlling, they were entitled to great weight, as the children were 12 and 13 years old, respectively, at the time of the hearing
In Matter of Morgan v Eckles, --- N.Y.S.3d ----, 2023 WL 2669284, 2023 N.Y. Slip Op. 01678 (2d Dept., 2023) the Appellate Division held that Family Court properly denied the mother’s petition to modify the custody provisions of the judgment of divorce to allow her to relocate with the children to Rhode Island, and granted the father’s petition, in effect, to modify the custody provisions of the judgment of divorce to award him sole residential custody of the children, with certain parental access to the mother. The Family Court’s determination was supported by a sound and substantial basis in the record. Moreover, while the expressed wishes of the children to remain in Long Island with the father was not controlling, they were entitled to great weight, as the children were 12 and 13 years old, respectively, at the time of the hearing (see Matter of Guerra v. Oakes, 160 A.D.3d 855, 857, 74 N.Y.S.3d 102).
Where the matter has been submitted to the court, the court may not order an action discontinued except upon the stipulation of all parties appearing in the action
In Matter of Johnson v Lomax, --- N.Y.S.3d ----, 2023 WL 2669267 (Mem), 2023 N.Y. Slip Op. 01675(2d Dept.,2023) the petitioner commenced a family offense proceeding against the respondent, his sister. The Family Court issued a temporary order of protection, in favor of the petitioner and against the respondent. A hearing was held on April 16, 2021, and after the hearing, the court found that the petitioner established, by a preponderance of the evidence, that the respondent committed a family offense. Thereafter, in an order dated April 26, 2021, the court vacated the temporary order of protection and directed that the petition was withdrawn. The Appellate Division reinstated the petition. It held that where, as here, the matter has been submitted to the court, the court may not order an action discontinued except upon the stipulation of all parties appearing in the action (CPLR 3217[b]). In this case, there was no stipulation from the parties. Thus, the court erred in directing that the petition was withdrawn. The petition was reinstated, and the matter was remitted to the Family Court, for further proceedings consistent herewith.
Trial courts are without authority to vacate or modify orders of the Appellate Division
In Greco v Greco, --- N.Y.S.3d ----, 2023 WL 2669251 (Mem), 2023 N.Y. Slip Op. 01666 (2d Dept.,2023) the defendant moved in the Supreme Court, to modify a decision and order of the Appellate Division dated May 16, 2018, which affirmed, a prior order of the Supreme Court, dated April 20, 2016, which, inter alia, directed the plaintiff to pay certain counsel fees incurred by the defendant directly to the defendant’s counsel. Supreme Court denied the defendant’s motion on the ground that it lacks authority to modify an order of the Appellate Division. The Appellate Division held that Supreme Court properly denied the defendant’s motion which to modify the May 2018 order. Trial courts are without authority to vacate or modify orders of the Appellate Division. (Wiener v. Wiener, 10 A.D.3d 362, 363, 780 N.Y.S.2d 759).
The court did not improvidently exercise its discretion in declining to impute as income the cost of the apartment that the defendant’s corporate employer maintained for him in Los Angeles where he was traveling there for business on a regular basis
In Lieberman-Massoni v Massoni, --- N.Y.S.3d ----, 2023 WL 2778332, 2023 N.Y. Slip Op. 01786 (2d Dept., 2022) the parties were married on August 31, 1997, and had two children. In February 2012, the plaintiff commenced the action for a divorce. A trial on the issues of equitable distribution, maintenance, and child support commenced in June 2014. Evidence at the first trial showed that the defendant, a high-ranking executive at his corporate employer, had received several grants of shares in the company, called B–Units, throughout his employment. The parties’ neutral appraiser testified that the value of the defendant’s B–Units as of the date of commencement of this action was $1,126,000, based upon a formula value set forth in the employer’s operating agreement and a discount for lack of marketability and control. The defendant testified that the business as of the time of trial was “horrendous.” However, approximately two weeks after the close of the first trial, the plaintiff discovered that the defendant’s corporate employer had sold one of its divisions which yielded the defendant a distribution of more than $8 million, based upon his B–Units. The plaintiff moved, inter alia, to reopen the trial. In an order dated December 4, 2014 Supreme Court granted the motion. The court also reopened discovery. The defendant appealed and the order was affirmed. The new trial was held in September 2017. The Supreme Court issued a decision after trial dated October 5, 2018 and a judgment of divorce dated December 21, 2018, was entered.
The Appellate Divison held that the Supreme Court providently exercised its discretion in determining that the defendant’s B–Units that were granted before 2015 should be valued as of June 2017, immediately prior to the second trial, but that the plaintiff should be awarded only a percentage of the value of the B–Units as of that date, not a percentage of the B–Units themselves. Although the defendant was a high-ranking executive at his corporate employer, the court correctly determined that the value of these B–Units was not solely attributable to his actions. The court providently exercised its discretion, based on equitable and other considerations, to set the valuation date as of June 2017, rather than at the commencement of this action. Moreover, the Supreme Court did not improvidently exercise its discretion in awarding the plaintiff a percentage of the value of the defendant’s B–Units rather than a percentage of the B-units themselves as the record did not demonstrate that the distribution of the B–Units in-kind by transferring a percentage of the B–Units to her, by assigning a percentage of the interest to her, or by distributing a percentage of the defendant’s future distributions to her would be practicable and not unduly burdensome. The court’s determination that the plaintiff should not share in future distributions, nor benefit in any value increases of the B–Units subsequent to June 2017, was a provident exercise of discretion in light of the defendant’s promotion in 2015 which provided him a more active role in the operation of his corporate employer. Nor did the Supreme Court improvidently exercise its discretion in crediting the defendant’s expert valuation of the B–Units over the valuation of the plaintiff’s experts. Since the plaintiff’s experts failed to discount the valuation of the B–Units based upon a lack of marketability and control, the court did not improvidently exercise its discretion in adopting the valuation of the defendant’s expert. Further, the court did not improvidently exercise its discretion in determining that the formula value testified to by the defendant’s expert more closely approximated the fair market value of the defendant’s B–Units than the value based upon a potential sale of the company, where there was no evidence that the sale of the corporate employer was imminent.
Considering the plaintiff’s substantial indirect contributions to the defendant’s business, including caring for the parties’ children and maintaining the parties’ residence in New York while the defendant worked for the majority of the time in Los Angeles, the Supreme Court providently exercised its discretion in awarding the plaintiff 35% of the value of the defendant’s B–Units as of the date of commencement of the second trial, as well as 35% of the defendant’s distribution from the 2014 sale of one of the divisions of the defendant’s corporate employer . The Supreme Court also providently exercised its discretion in determining that certain other B–Units that the defendant was granted in 2015 were his separate property. Bonus payments, though paid after commencement of a matrimonial action, may be viewed as marital property where such payments are compensation for past performance and are not tied to future performance. However, where a bonus is an incentive for future services to be rendered after commencement of an action, the bonus is separate property. Here, the evidence showed that the B–Units granted to the defendant in 2015, three years after the commencement of this action, were an incentive for future performance, not compensation for work done during the marriage.
The Appellate Division found that the court did not improvidently exercise its discretion in declining to impute as income the cost of the apartment that the defendant’s corporate employer maintained for him in Los Angeles. The defendant testified at the second trial that he was again traveling there for business on a regular basis
Although the defendant paid for all of the parties’ household expenses out of a joint checking account, it was undisputed that the defendant funded the account with post-commencement earnings. The plaintiff’s spending during the pendency of the action, which far exceeded the parties’ agreed-to “pre-commencement standard of living,” had nearly depleted all of the parties’ joint accounts. Accordingly, the Supreme Court did not improvidently exercise its discretion when it awarded the defendant a credit of 50% of the reduction in the mortgage principal made during the pendency of the action.
The Appellate Division held that Supreme Court providently exercised its discretion in directing the defendant to pay 70% of the plaintiff’s reasonable and necessary attorney’s fees and expert fees (see e.g. Weiss v. Nelson, 196 A.D.3d 722, 726, 152 N.Y.S.3d 143).
No appeal lies from an order denying reargument of a decision
In Lieberman-Massoni v Massoni, 2023 WL 2778342 (2d Dept.,2023) the Appellate Division held that no appeal lies from an order denying reargument of a decision, or from an order made upon reargument of a decision.
The competence of an expert in a particular subject may derive from long observation and real world experience and is not dependent upon formal training or attainment of an academic degree in the subject
In Lieberman-Massoni v Massoni, --- N.Y.S.3d ----, 2023 WL 2778339, 2023 N.Y. Slip Op. 01788(2d Dept.,2023) the Appellate Division affirmed an order which awarded the plaintiff $716,931.50 in attorney’s fees and $72,110 in expert fees. It held, inter alia, that it is within the Supreme Court’s sound discretion to determine whether a particular witness is qualified to testify as an expert, and its determination will not be disturbed in the absence of serious mistake, an error of law, or an improvident exercise of discretion. An expert is qualified to proffer an opinion if he or she possesses ‘the requisite skill, training, education, knowledge, or experience to render a reliable opinion. The competence of an expert in a particular subject may derive from long observation and real world experience, and is not dependent upon formal training or attainment of an academic degree in the subject.
Supreme Court
Where the mother abducted the child to India, a country that is not a member to the Hague Convention, during the midst of an ongoing custody and divorce proceeding in New York, custody was awarded to the father and she was denied all relief.
In S.C. v. R.N.,--- N.Y.S.3d ----, 2023 WL 2801971, 2023 N.Y. Slip Op. 23092 (Sup Ct, 2023) the mother abducted the child to India, a country that is not a member to the Hague Convention,- during the midst of an ongoing custody and divorce proceeding in New York. The child was autistic and had special needs which were being met by various services provided to her in New York, but which had now been terminated. On November 10, 2022, Plaintiff fled with the child to India. On November 17, 2022, the Court issued an order directing Plaintiff to return the child to New York within 72 hours, and granting Defendant sole interim custody in the event Plaintiff failed to comply. On December 19, 2022, the Court granted the motion of Plaintiff’s prior counsel to be relieved. The Court also found Plaintiff in contempt of Court, issued a warrant for her arrest, deemed Defendant to have sole custody of the child, and granted Defendant exclusive use and occupancy of the marital apartment. .A warrant for Plaintiff’s arrest was issued on December 20, 2022, as was a separate order granting Defendant a final order of sole legal and physical custody of the child. An inquest was held on April 4, 2023. Defendant was granted sole legal and physical custody of the child. No parental access was awarded to Plaintiff until such time as she participates in proceedings in New York. Considering the various relevant factors, and especially in consideration of Plaintiff’s outrageous and egregious conduct in absconding with the child, a distributive award of marital assets 100% to Defendant and 0% to Plaintiff was equitable and just. The Court noted that in K.K. v. P.K.M., 52 Misc.3d 1220(A), 2016 WL 4441387 (Supreme Court, Westchester County 2016), the Court was faced with identical circumstances — the abduction of a child to India. The Court there found that the mother’s abduction of the child to India, refusal to return to the marital home, and disobedience of Court orders to return, shocked the conscience and should be considered in equitable distribution. Similar to this matter, the mother there also severely limited the father’s ability to communicate with the child. This Court adopted the reasoning of the K.K. Court and found it significant that not only had Plaintiff refused to return and disobeyed orders of the Court, but had the gall to e-mail the Court to indicate she considered this action withdrawn and had commenced proceedings in India. In light of her egregious marital fault, the Plaintiff forfeited her right to a share of the marital assets. The Court concluded that the Plaintiff was not entitled to maintenance and directed Defendant to pay a counsel fee award of $125,000.
April 1, 2023
Appellate Division, Second Department
Improvident exercise of discretion in failing to conduct an in camera interview given the mother’s testimony that the child’s fear of visiting her in person was due to outside influence and the child was of such an age and maturity that his preferences were necessary to create a sufficient record
In Badal v Wilkinson, --- N.Y.S.3d ----, 213 A.D.3d 926, 2023 WL 2147225, 2023 N.Y. Slip Op. 00997 (2d Dept.,2023) the mother and the father had one child together, born in 2013. When the child was one year and three months old, the mother was arrested. She was detained and subsequently deported to Trinidad and Tobago. In 2019, the mother filed a petition seeking telephone, video, and in-person parental access in Trinidad and Tobago. After a hearing, the Family Court granted the mother’s petition for phone and video parental access with the child and, in effect, denied in-person parental access in Trinidad and Tobago. The Appellate Division reversed. It held that the decision to conduct an in camera interview to determine the best interests of the child is within the discretion of the hearing court. Here, the court improvidently exercised its discretion in failing to conduct an in camera interview of the child, particularly given the mother’s testimony that the child’s fear of visiting her in person was due to outside influence. The child was of such an age and maturity that his preferences were necessary to create a sufficient record to determine his best interests. It remitted the matter to Family Court to conduct an evidentiary hearing and an in camera interview with the child, to develop a sufficient record, including the practical effect of the COVID–19 pandemic on the parties, vaccination status of the mother and child, the mother and maternal grandmother’s ability and willingness to coordinate travel arrangements, and factual details as to the mother’s criminal history, and for a new determination of the mother’s petition for in-person parental access.
Supreme Court erred in awarding the plaintiff counsel fees, as neither the plaintiff nor her attorney submitted any documentation or evidence that would have supported such an award.
In Kao v Bonalle, --- N.Y.S.3d ----, 2023 WL 2590953, 2023 N.Y. Slip Op. 01543 (2d Dept., 2023) the parties were married on July 26, 2007, and had one child together, born in 2008. The plaintiff commenced this action for a divorce in July 2013. Supreme Court determined that the defendant had made certain excessive charges on his American Express credit card from January 2015 to May 2017. The court determined that the plaintiff was entitled to $138,870.84, which is equal to 50% of the excessive charges as calculated by the court. The court also determined that, in contemplation of this matrimonial action, the defendant transferred $150,000 into two 529 tuition plan accounts held on behalf of his two children from a previous marriage and that the plaintiff was entitled to $75,000, which was equal to 50% of the total funds transferred. The court also determined that the parties were to equally divide the net proceeds of the sale of a condominium located in Ohio, and determined that the defendant was to pay two-thirds of the plaintiff’s counsel fees, excluding the costs associated with the plaintiff’s appeal of a prior order in this action. The Appellate Division held, inter alia, that (1) Supreme Court providently exercised its discretion in awarding the plaintiff 50% of the excessive charges made by the defendant on his American Express card during the subject post-commencement period of time but recalculated the amount of the award due to errors in calculation; (2) Supreme Court also properly awarded each party 50% of the net proceeds of the sale of the Ohio condominium; and (3) the Supreme Court erred in awarding the plaintiff counsel fees, as neither the plaintiff nor her attorney submitted any documentation or evidence that would have supported such an award.
An order imposing a prior restraint on speech must be tailored as precisely as possible to the exact needs of the case. A party seeking to impose such a restraint must demonstrate that the speech sought to be restrained is likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.
In Walsh v Russell, --- N.Y.S.3d ----, 2023 WL 2590848, 2023 N.Y. Slip Op. 01522(2d Dept., 2023) the mother commenced a proceeding seeking sole legal and physical custody of the child and subsequently commenced a family offense proceeding against the father. In October 2021, the attorney for the child (AFC) moved to prohibit the father from posting, uploading blogs, and displaying the likeness of the child regarding the proceedings, and from disparaging the child’s relatives in any and all public or social media forums, and to direct the father to erase, deactivate, and delete all existing postings, blogs, and likenesses of the child. In an affirmation, the AFC asserted that the father had “embarked on a social media/public campaign” with respect to the instant proceedings, and that the father had posted the child’s image, name, and allegations regarding the mother and the mother’s family members in various public forums. Family Court, inter alia, granted the AFC’s motion upon the father’s default. In January 2022, the Family Court held a hearing on the mother’s petitions. Although the father failed to appear at the hearing, the father’s attorney participated in the hearing by making objections and cross-examining the mother. In an order dated February 2, 2022, the Family Court, in effect, granted the mother’s custody petition and awarded her sole legal and physical custody of the child. The order, inter alia, prohibited the father from “posting, uploading blogs, and displaying the likeness of the child ... regarding these proceedings and disparaging the child’s relatives in any and all public forums and/or social media platforms,” and directed the father to erase, deactivate, and delete “any existing blogs and likenesses.” The Appellate Division held that the order appealed from was not entered upon the father’s default. Although the father failed to appear in person at the hearing, his counsel appeared on his behalf and participated in the hearing. It then observed that a prior restraint on speech is a law, regulation or judicial order that suppresses speech on the basis of the speech’s content and in advance of its actual expression. A party seeking to impose such a restraint bears a heavy burden of demonstrating justification for its imposition. Such party must demonstrate that the speech sought to be restrained is likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. An order imposing a prior restraint on speech must be tailored as precisely as possible to the exact needs of the case (Karantinidis v. Karantinidis, 186 A.D.3d at 1503, 131 N.Y.S.3d 363). It found that the that portion of the order which directed the father to erase, deactivate, and delete “any existing blogs and likenesses” was “not tailored as precisely as possible to the exact needs of the case”. This restriction required the father to delete “any existing blogs and likenesses,” regardless of whether the blogs or likenesses relate to the child, the mother, the mother’s family, or the instant proceedings. It rejected the father’s contention that the order’s remaining restrictions on his ability to post blogs, display the likeness of the child, and disparage the child’s relatives, were constitutionally impermissible. The prior restraint was narrowly tailored to the exact needs of the case (see Kassenoff v. Kassenoff, 213 A.D.3d 822, 2023 N.Y. Slip Op. 00850, 183 N.Y.S.3d 533 [2d Dept.]).
Unlike a final award of counsel fees, a detailed inquiry or evidentiary hearing is not required prior to an award of interim counsel fees
In Chiarello v Chiarello, --- N.Y.S.3d ----, 2023 WL 2590863, 2023 N.Y. Slip Op. 01498 (2d Dept.,2023) in 2016, the plaintiff commenced this action for a divorce and in September 2018, the defendant moved for interim counsel fees of $25,000. On December 20, 2018, the Supreme Court directed the plaintiff to pay interim counsel fees of $20,000. The Appellate Division affirmed. It observed that the purpose of an award of interim counsel fees is to ensure that the less monied spouse will be able to litigate the action on equal footing with the monied spouse. Unlike a final award of counsel fees, a detailed inquiry or evidentiary hearing is not required prior to an award of interim counsel fees. Under the circumstances here, including the disparity of income between the parties, the plaintiff’s litigation tactics, and the evidence showing that the defendant lacked the resources necessary to continue litigating the action, the Supreme Court providently exercised its discretion in granting the defendant’s motion
The length of time after the end of the relationship and before the filing of the family offense petition during which the petitioner refrained from having contact with the respondent as a result of events giving rise to the commencement of the proceeding does not deprive the court of subject matter jurisdiction under Family Court Act § 812(1)(e).
In Matter of Eno v Illovsky, --- N.Y.S.3d ----, 2023 WL 2590808, 2023 N.Y. Slip Op. 01506 (2d Dept.,2023) petitioner was married to Lawrence Eno, who was the brother of the respondent. In December 2020, Lawrence Eno died. In February 2022, the petitioner commenced this family offense proceeding. Supreme Court issued an order granting the respondents motion to dismiss. The Appellate Division reversed and reinstated the petition. It found that Family Court correctly determined that, after Lawrence Eno’s death, the petitioner and the respondent no longer had a relationship of affinity pursuant to Family Court Act § 812(1)(a). However, the petitioner demonstrated that the parties had been in an “intimate relationship” within the meaning of Family Court Act § 812(1)(e), so as to confer subject matter jurisdiction upon the court. The petitioner demonstrated that the parties had known each other for more than 30 years, that they had a close relationship as sisters-in-law for most of this period, during which they lived within one mile of one another, frequently had dinner together, engaged in social activities in each other’s homes, attended most holiday celebrations together, supported each other during times of devastating family illnesses, and assisted each other with their respective children. That relationship need not have ended at a time relatively recent to the filing of the petition. Thus, the length of time before the filing of the petition during which the petitioner refrained from having contact with the respondent as a result of events giving rise to the commencement of this proceeding did not deprive the court of subject matter jurisdiction under Family Court Act § 812(1)(e).
Appellate Division, Third Department
Where the parties' stipulation modifying the judgment of divorce was signed, notarized and filed with the County Clerk, Family Court lacked jurisdiction to enforce it because the parties failed to obtain a court order incorporating its terms. Family Court may only enforce or modify child support provisions contained in a valid court order or judgment.
In Barra v Barra, --- N.Y.S.3d ----, 2023 WL 2602640, 2023 N.Y. Slip Op. 01557 (3d Dept., 2023) Petitioner ( mother) and respondent ( father) were married in 1986, and they had six children. The parties entered into a separation and settlement agreement in 2011, which was incorporated but not merged into a 2015 judgment of divorce. Pursuant to the terms of the separation agreement, the parties agreed that any modifications to the terms of the separation agreement had to take place “in writing duly subscribed and acknowledged with the same formality” as the separation agreement.” In June 2018, through a written stipulation (hereinafter the 2018 stipulation), the parties agreed that the child support section of the separation agreement “shall be stricken and replaced with” the 2018 stipulation. On February 1, 2021, the mother filed a petition seeking to enforce the child support provisions of the judgment of divorce. The mother alleged that the father owed child support arrears pursuant to the separation agreement and judgment of divorce and that he failed to pay his share of the children’s uncovered medical expenses. The matter proceeded to a fact-finding hearing. Following the mother’s proof, the Support Magistrate found that, pursuant to the 2018 stipulation, the father had complied with his child support obligations, and that the mother failed to present a prima facie case establishing a violation of any of the pertinent terms. The Support Magistrate dismissed the mother’s petition. The Appellate Division, inter alia, agreed with the mother’s contention that Family Court erred in considering the 2018 stipulation. Family Court is a court of limited jurisdiction and may only exert the powers granted to it by the State Constitution or by statute. Family Court may only enforce or modify child support provisions contained in a valid court order or judgment. Although the 2018 stipulation was signed, notarized, and then filed in the office of the Albany County Clerk, the parties failed to obtain a court order incorporating its terms. Accordingly, Family Court lacked subject matter jurisdiction to consider the 2018 stipulation to determine whether the father had failed to comply with his child support obligations. The proper inquiry was whether the father had complied with his child support obligations pursuant to a lawful order of support (see Family Ct Act § 453) – in this case, the judgment of divorce.
Appellate Division, Fourth Department
A parent who has been prohibited from direct contact with the child continues to have an obligation to maintain contact with the person having legal custody of the child
In Matter of Maria R., --- N.Y.S.3d ----, 2023 WL 2549146 (Mem), 2023 N.Y. Slip Op. 01453 (4th Dept., 2022) the Appellate Division affirmed an order which terminated the parental rights of respondent with respect to the subject child on the ground of abandonment. It held that a “parent who has been prohibited from direct contact with the child, in the child’s best interest[s], continues to have an obligation to maintain contact with the person having legal custody of the child” (Matter of Lucas B., 60 A.D.3d 1352, 1352, 876 N.Y.S.2d 255 [4th Dept. 2009)]). Petitioner had legal custody of the child, and there was no evidence that the father made any effort to maintain contact with petitioner.
March 16, 2023
Recent Legislation
Laws of 2023, Ch 23 §2 enacted on March 3, 2023 amended newly enacted Domestic Relations Law 240 subdivision 1 (a-3) of to add subdivision 5. Domestic Relations Law 240 subdivision 1 (a-3) is now effective December 23, 2023 and now reads as follows:
(a-3) Court ordered forensic evaluations involving child custody and
visitation. (1) The court may appoint a forensic evaluator on behalf of
the court to evaluate and investigate the parties and a child or
children in a proceeding involving child custody and visitation provided
that the child custody forensic evaluator is a psychologist, social
worker or psychiatrist who is licensed in the state of New York and has
received within the last two years, a certification of completion for
completing the training program pursuant to paragraph (o) of subdivision
three of section five hundred seventy-five of the executive law.
(2) Notwithstanding any provision of law to the contrary, no
individual shall be appointed by a court to conduct a forensic
evaluation in a proceeding involving child custody and visitation
pursuant to this paragraph unless such individual has received within
the last two years, a certification of completion for completing the
training program pursuant to paragraph (o) of subdivision three of
section five hundred seventy-five of the executive law.
(3) A psychologist, social worker or psychiatrist authorized to
conduct court ordered child custody forensic evaluations pursuant to
this section shall notify the court in which such individual requests to
be considered for such court ordered evaluations. Any psychologist,
social worker or psychiatrist who no longer meets the requirements of
this section in regards to completing within the last two years the
training program pursuant to paragraph (o) of subdivision three of
section five hundred seventy-five of the executive law shall be
obligated to inform such courts within seventy-two hours of
noncompliance so as to be removed from consideration for court ordered
evaluations.
(4) Upon appointment, the court shall require such child custody
forensic evaluator to show proof of certification for completing within
the last two years the training program pursuant to paragraph (o) of
subdivision three of section five hundred seventy-five of the executive
law.
(5) A court shall appoint a forensic evaluator who has completed the
training program pursuant to paragraph (o) of subdivision three of
section five hundred seventy-five of the executive law when the child is
living out-of-state and is farther than one hundred miles from the New
York state border; provided, however, that such forensic custody
evaluation may be conducted remotely utilizing videoconferencing
technology. The evaluator must take all steps reasonably available to
protect the confidentiality of the child's disclosures for any
evaluation conducted remotely utilizing videoconferencing technology, as
needed.
Executive law (3)(o)was amended accordingly to replace the reference to the New York State Coalition Against Domestic Violence with the “organization designated by the federal department of health and human services to coordinate statewide improvements within local communities, social services systems, and programming regarding the prevention and intervention of domestic violence in New York state.. Laws of 2023, Ch 23, §2.
Laws of 2023 Chapter 68 enacted on March 3, 2023 and effective March 28, 2023 amended Chapter 798 of the Laws of 2022, which provides for one-day marriage officiants. It makes technical changes to the underlying chapter to effectuate the intent of the law to authorize town and city clerks to issue one day marriage officiant licenses pursuant to new Domestic Relations law § 11-d.
Technical changes were made to Domestic Relations law § 11 Subdivisions 1, 2, 3-a and 3-b to include references to one-day marriage officiants in section 11 of the Domestic Relations law.
Domestic Relations law § 11 Subdivisions 1, 2, 3-a and 3-b were amended to read as follows:
1. A clergyman or minister of any religion, or by the senior leader,
or any of the other leaders, of The Society for Ethical Culture in the
city of New York, having its principal office in the borough of Manhat-
tan, or by the leader of The Brooklyn Society for Ethical Culture,
having its principal office in the borough of Brooklyn of the city of
New York, or of the Westchester Ethical Society, having its principal
office in Westchester county, or of the Ethical Culture Society of Long
Island, having its principal office in Nassau county, or of the River-
dale-Yonkers Ethical Society having its principal office in Bronx coun-
ty, or by the leader of any other Ethical Culture Society affiliated
with the American Ethical Union; provided that no clergyman or minister
as defined in section two of the religious corporations law, or Society
for Ethical Culture leader shall be required to solemnize any marriage
when acting in his or her capacity under this subdivision.
1-a. A refusal by a clergyman or minister as defined in section two of
the religious corporations law, or Society for Ethical Culture leader to
solemnize any marriage under this subdivision shall not create a civil
claim or cause of action or result in any state or local government
action to penalize, withhold benefits or discriminate against such cler-
gyman or minister.
2. The current or a former governor, a mayor of a village, a county
executive of a county, or a mayor, recorder, city magistrate, police
justice or police magistrate of a city, a former mayor or the city clerk
of a city of the first class of over one million inhabitants or any of
his or her deputies or not more than four regular clerks, designated by
him or her for such purpose as provided in section eleven-a of this
article, except that in cities which contain more than one hundred thou-
sand and less than one million inhabitants, a marriage shall be solem-
nized by the mayor, or police justice, and by no other officer of such
city, except as provided in subdivisions one and three of this section.
3-a. A judge or peacemaker judge of any Indian tribal court, a chief,
a headman, or any member of any tribal council or other governing body
of any nation, tribe or band of Indians in this state duly designated by
such body for the purpose of officiating at marriages, or any other
persons duly designated by such body, in keeping with the culture and
traditions of any such nation, tribe or band of Indians in this state,
to officiate at marriages.
3-b. A one-day marriage officiant, as designated by a town or city clerk pursuant to section eleven-d of this article; or,
Domestic Relations law § 12 was amended to clarify the designation of one-day marriage officiants by a town or city clerk rather than the secretary of state.
Domestic Relations law § 12 was amended to read as follows:
§ 12. Marriage, how solemnized. No particular form or ceremony is
required when a marriage is solemnized as herein provided by a clergy-
man or magistrate, or one-day marriage officiant as designated by
a town or city clerk pursuant to section eleven-d of this article, but the parties must solemnly declare in the presence of a
clergyman, magistrate, or such one-day marriage officiant and the
attending witness or witnesses that they take each other as spouses. In
every case, at least one witness beside the clergyman, magistrate, or
such one-day marriage officiant must be present at the ceremony.
The preceding provisions of this chapter, so far as they relate to the
manner of solemnizing marriages, shall not affect marriages among the
people called friends or quakers; nor marriages among the people of any
other denominations having as such any particular mode of solemnizing
marriages; but such marriages must be solemnized in the manner hereto-
fore used and practiced in their respective societies or denominations,
and marriages so solemnized shall be as valid as if this article had not
been enacted.
Domestic Relations law § 13 was amended to make conforming changes referencing the designation of town or city clerks to issue one-day marriage officiant licenses.
Domestic Relations law § 13 was amended to read as follows:
§ 13. Marriage licenses. It shall be necessary for all persons
intended to be married in New York state to obtain a marriage license
from a town or city clerk in New York state and to deliver said license,
within sixty days, to the clergyman, magistrate, or one-day marriage
officiant as designated by a town or city clerk pursuant to section eleven-d of this article who is to officiate before the marriage
ceremony may be performed. In case of a marriage contracted pursuant to
subdivision four of section eleven of this chapter, such license shall
be delivered to the judge of the court of record before whom the
acknowledgment is to be taken. If either party to the marriage resides
upon an island located not less than twenty-five miles from the office
or residence of the town clerk of the town of which such island is a
part, and if such office or residence is not on such island such license
may be obtained from any justice of the peace residing on such island,
and such justice, in respect to powers and duties relating to marriage
licenses, shall be subject to the provisions of this article governing
town clerks and shall file all statements or affidavits received by him
while acting under the provisions of this section with the town clerk of
such town. No application for a marriage license shall be denied on the
ground that the parties are of the same, or a different, sex.
Domestic Relations Law § 13-b was amended to make conforming changes regarding designating one-day marriage officiants.
Domestic Relations Law § 13-b was amended to read as follows:
§ 13-b. Time within which marriage may be solemnized. A marriage shall
not be solemnized within twenty-four hours after the issuance of the
marriage license, unless authorized by an order of a court of record as
hereinafter provided, nor shall it be solemnized after sixty days from
the date of the issuance of the marriage license unless authorized
pursuant to section three hundred fifty-four-d of the executive law.
Every license to marry hereafter issued by a town or city clerk, in
addition to other requirements specified by this chapter, must contain a
statement of the day and the hour the license is issued and the period
during which the marriage may be solemnized. It shall be the duty of the
clergyman, magistrate, or one-day marriage officiant, as designated by
a town or city clerk pursuant to section eleven-d of this
article, performing the marriage ceremony, or if the marriage is solem-
nized by written contract, of the judge before whom the contract is
acknowledged, to annex to or endorse upon the marriage license the date
and hour the marriage is solemnized. A judge or justice of the supreme
court of this state or the county judge of the county in which either
party to be married resides, or the judge of the family court of such
county, if it shall appear from an examination of the license and any
other proofs submitted by the parties that one of the parties is in
danger of imminent death, or by reason of other emergency public inter-
est will be promoted thereby, or that such delay will work irreparable
injury or great hardship upon the contracting parties, or one of them,
may, make an order authorizing the immediate solemnization of the
marriage and upon filing such order with the clergyman, magistrate, or
one-day marriage officiant performing the marriage ceremony, or if the
marriage is to be solemnized by written contract, with the judge before
whom the contract is acknowledged, such clergyman, magistrate or such
one-day marriage officiant may solemnize such marriage, or such judge
may take such acknowledgment as the case may be, without waiting for
such three day period and twenty-four hour period to elapse. The clergy-
man, magistrate, judge, or such one-day marriage officiant, as desig-
nated by a town or city clerk pursuant to section eleven-d of this article, must file such order with the town or city clerk who
issued the license within five days after the marriage is solemnized.
Such town or city clerk must record and index the order in the book
required to be kept by him or her for recording affidavits, statements,
consents and licenses, and when so recorded the order shall become a
public record and available in any prosecution under this section. A
person who shall solemnize a marriage in violation of this section shall
be guilty of a misdemeanor and upon conviction thereof shall be punished
by a fine of fifty dollars for each offense, and in addition thereto,
his or her right to solemnize a marriage shall be suspended for ninety
days.
Section 110 of the executive law regarding one-day marriage officiants was repealed.
Domestic Relations law § 11-d was added to authorize town or city clerks to issue one-day marriage officiant licenses and lays out the requirements for a one-day marriage officiant license.
Domestic Relations law § 11-d was added to read as follows:
§ 11-d. One-day marriage officiant license. 1. A town or city clerk
shall issue a one-day marriage officiant license upon request. Such
one-day marriage officiant shall have the authority to solemnize a
marriage which marriage shall be valid if performed in accordance with
other provisions of law. Nothing herein contained shall nullify the
authority of other persons authorized to solemnize marriages.
2. Such one-day marriage officiant shall be eighteen years of age or
over and need not be a resident of the town or city to which they apply
or a resident of the state. A one-day marriage officiant shall have the
authority to solemnize a marriage anywhere in the state.
3. An applicant for a one-day marriage officiant license must apply
for such license in the same town or city clerk's office as the couple
to be married. Such applicant shall not be required to personally
appear.
4. A town or city clerk shall be entitled to a fee of twenty-five
dollars for issuing a one-day marriage officiant license. Such license
shall be issued only after payment of such fee and submission of a
completed application form.
5. The application form shall require the following information of the
applicant: name, date of birth, address, email address and telephone
number. The application form shall also require the following informa-
tion of the parties to be married: names, dates of birth, and addresses
as they appear on the application for a marriage license.
6. Such license shall only be valid for the parties to be married as
stated on the application and shall expire upon the earlier of either
completion of such solemnization or the expiration of the marriage
license.
7. One-day marriage officiants shall be exempt from registration as
required pursuant to section eleven-b of this article.
Appellate Division, Second Department
Parties’ agreement in their stipulation did not provide an appropriate rationale for the court’s calculation of child support on parental income over the statutory cap.
In Monaco v Monaco, --- N.Y.S.3d ----, 2023 WL 2290584, 2023 N.Y. Slip Op. 01091 (2d Dept.,2023) the parties were married in 1996 and had three children. In February 2013, they executed a stipulation of settlement, which was incorporated but not merged into their judgment of divorce entered June 24, 2013. Pursuant to the parties’ stipulation, the father’s child support obligation was $1,618.02 every two weeks. In determining the father’s child support obligation, the parties agreed to apply the statutory percentage under the Child Support Standards Act ( CSSA) to their total combined parental income of $185,980. In September 2020, the father filed a petition seeking a downward modification of his child support obligation. Subsequently, the mother filed a petition for an upward modification. After a hearing, in an order dated December 3, 2021, a Support Magistrate, in effect, granted the father’s petition. The Support Magistrate found that the parties’ combined parental income under the CSSA was $251,708.46, which exceeded the statutory cap of $154,000. The Support Magistrate determined that it was appropriate to apply the statutory percentages to the combined parental income up to the statutory cap. The Family Court determined that the Support Magistrate should have used the entire combined parental income, including the amount exceeding the statutory cap, in calculating the father’s child support obligation. The Appellate Division held that Family Court should have denied the mother’s objection to the Support Magistrate’s determination to calculate child support based on the combined parental income up to the statutory cap. It observed that where, as here, the combined parental income exceeds the statutory cap, in fixing the basic child support obligation on income over the cap, the court has the discretion to apply the factors set forth in Family Court Act § 413(1)(f), or to apply the statutory percentages, or to apply both. The Family Court based its decision to calculate child support on combined parental income in excess of the statutory cap on the parties’ agreement in their stipulation of settlement to apply the statutory percentage to their total combined parental income. The court found that the parties intended for their children to enjoy the standard of living that the children would have enjoyed had the family remained intact. However, the parties’ agreement in their stipulation did not provide an appropriate rationale for the court’s calculation of child support on parental income over the statutory cap. The record supported the Support Magistrate’s determination that it was appropriate to apply the statutory percentages to the statutory cap of $154,000, with no further support obligation based on the combined parental income over that amount. When determining an appropriate amount of child support, a court should consider the children’s actual needs and the amount required for them to live an appropriate lifestyle” (Hepheastou v. Spaliaras, 201 A.D.3d at 795, 162 N.Y.S.3d 75; see Kaufman v. Kaufman, 189 A.D.3d at 72, 133 N.Y.S.3d 54). The parties’ testimony at the hearing established that the two older children were no longer attending school, and that the oldest child was employed. The mother reported in her financial disclosure affidavit that she had no tuition or child care expenses, and there was no indication that the children are engaged in extracurricular activities. Moreover, although the father’s gross income was higher than the mother’s gross income, the record did not establish that the difference between the parties’ gross incomes warranted applying the statutory percentages to the parties’ combined income in excess of the statutory cap.
Appellate Division, Third Department
Family Court may not, upon request by an AFC, prohibit a child protective agency from discussing the issues of surrender and adoption with a child in its custody
In Matter of Michael H., --- N.Y.S.3d ----, 2023 WL 2315550, 2023 N.Y. Slip Op. 01119 (3d Dept.,2023), a termination of parental rights case the question presented on appeal was whether Family Court may, upon request by an AFC, prohibit a child protective agency from discussing the issues of surrender and adoption with a child in its custody. The Appellate Division observed that a ”child protective agencies have “a duty to conduct family assessments and to develop a plan of services made in consultation with the family and each child over 10 years old, whenever possible. A child protective agency must “provide casework contact services” to, among others, children under its care (18 NYCRR 441.21[a]). Under the statutory and regulatory scheme, child protective agencies and their caseworkers have an obligation to discuss matters of permanency, which include adoption, with the child. Here, during the judicial surrender appearance, the AFC requested that Family Court issue an order that, “until I’ve spoken to [the child], no one is to speak to [the child] about surrender and adoption.” The Appellate Division observed that although circumstances may arise where it may be appropriate to allow an attorney for children reasonable time to discuss sensitive matters of importance, such as adoption or surrender, with their child-client before anyone else does, Family Court’s order was not a temporal arrangement to allow the AFC an opportunity to broach the issue with the child. Instead, the order was an outright ban on anyone, including petitioner’s caseworkers, having a discussion with the child regarding issues that are central to the child’s permanency (see Family Ct Act § 1089[c][1][ii]). Although the child has a right to meaningful representation and to learn about legal issues from the AFC, attorneys for children cannot transform such responsibility into a roadblock, as occurred here, preventing petitioner from fulfilling its mandates and planning for the child’s permanency and well-being (see 18 NYCRR 428.6; 441.21). Therefore, it found that Family Court erred when, through the order on appeal interfered with petitioner’s statutory obligations and responsibilities. The order was reversed on the law and vacated.
March 1, 2023
Child Support Standards Chart Revised March 1, 2023 and Revised Forms
Child Support Standards Chart Revised March 1, 2023
Revised Forms for Use in Matrimonial Actions in Supreme Court were adopted effective March 1, 2023. The revised forms reflect the increases as of March 1, 2023 in the Self Support Reserve from $18,346.50 to $19,683 and in the federal Poverty Level Income for a single person from $13,590 to $14,580.
Forms and Calculators for both Contested and Uncontested Divorces revised March 1, 2023 reflecting these changes are posted.
Uncontested Divorce Forms revised March 1, 2023 reflecting these changes are also posted.
Appellate Division, First Department
Family Court erred when it denied the mother’s motion without a hearing, asking Family Court to convert its temporary emergency jurisdiction to permanent jurisdiction under the (UCCJEA)
In Matter of Nathaniel H., --- N.Y.S.3d ----, 2023 WL 2025651, 2023 N.Y. Slip Op. 00927 (1st Dept.,2023) the petition alleged that the father neglected the child by committing acts of domestic violence against the mother, including in the child’s presence, when they resided together in Texas, and that the mother had fled Texas with the child and moved to Virginia in September 2020, and then to New York in January 2021. Based on these allegations, Family Court properly exercised temporary emergency jurisdiction on May 3, 2021, when it issued a limited temporary order of protection in favor of the mother and child against the father, and ordered that the child be released to the mother with ACS supervision (Domestic Relations Law § 76–c[1]). The Appellate Division held that Family Court erred when, by order dated September 15, 2021, without first holding a hearing, it denied the mother’s motion asking Family Court to convert its temporary emergency jurisdiction to permanent jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) or to continue its temporary emergency jurisdiction, and relinquished temporary emergency jurisdiction based on the existence of a custody proceeding filed by the father in Texas. Family Court improperly relinquished emergency jurisdiction for three reasons. First, there is no evidence in this record, and Family Court’s order fails to state any basis for finding, that the Texas court had “home state” jurisdiction, since the child had not resided there for six months immediately preceding commencement of the father’s Texas custody proceeding (Domestic Relations Law §§ 75–a[7]; 76[1][a]). Second, the record and Family Court’s order are also devoid of any factual basis for finding that any of the alternative jurisdictional bases applied to Texas. There is no evidence that the child at that time had a “significant connection” with Texas or that “substantial evidence . . . concerning the child’s care, protection, training and personal relationships” was available in Texas (Domestic Relations Law § 76[1][b]). Finally, given the allegations in the neglect petition and the fact that Family Court had been informed on or about June 3, 2021 that the Texas Department of Family and Protective Services would not investigate whether the father was a danger to the child because the mother and child resided in New York, Family Court should not have relinquished emergency jurisdiction “in the absence of any orders from the Texas court safeguarding the child. It held that Family Court should not have denied the mother’s motion without first holding a hearing.
Appellate Division, Second Department
An order imposing a prior restraint on speech must be tailored as precisely as possible to the exact needs of the case.
In Kassenoff v Kassenoff, --- N.Y.S.3d ----, 2023 WL 2000546, 2023 N.Y. Slip Op. 00850(2d Dept.,2023) the parties to this action for a divorce, who were the parents of three children, appeared for a conference to discuss, among other things, certain communications between the defendant and the plaintiff’s employer. On March 9, 2020, the plaintiff’s attorney submitted a proposed order to the Supreme Court which included provisions prohibiting the defendant from communicating with any employee of the plaintiff’s employer “regarding the Plaintiff, ... the facts and circumstances of this divorce (in the broadest meaning of the terms), the facts and circumstances of the parties’ marriage prior to the filing of this divorce, or the parties’ children,” and further prohibiting both parties from “criticizing, denigrating or disparaging the other on any form of social media.” On May 25, 2021, the court signed the order. The defendant moved to vacate the order and Supreme Court denied the defendant’s motion. The defendant contended on appeal that the order dated May 25, 2021, was an unconstitutional prior restraint and content-based restriction on her First Amendment right to free speech. The Appellate Division modified the order. It held that a prior restraint on speech is a law, regulation or judicial order that suppresses speech on the basis of the speech’s content and in advance of its actual expression. A party seeking to impose such a restraint bears a heavy burden of demonstrating justification for its imposition. Such a party must demonstrate that the speech sought to be restrained is likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. An order imposing a prior restraint on speech must be tailored as precisely as possible to the exact needs of the case. It agreed with the defendant that the restrictions placed upon her communications with employees of the plaintiff’s employer were not tailored as precisely as possible to the exact needs of this case. Specifically, the restriction prohibiting the defendant from discussing the children with any employee of the plaintiff’s employer was not necessary to prevent professional reputational harm to the plaintiff or financial or emotional harm to the children. It vacated the restriction on the defendant’s ability to discuss the children with any employee of the plaintiff’s employer.
Attorney-client privilege shields confidential communications between an attorney and client made for the purpose of obtaining or facilitating legal advice
In Kassenoff v Kassenoff, --- N.Y.S.3d ----, 2023 WL 2000604, 2023 N.Y. Slip Op. 00849 (2d Dept.,2023) in May 2019, the plaintiff commenced an action for a divorce. In June 2019, the plaintiff moved, inter alia, for temporary sole legal and physical custody of the parties’ three children, relying on certain text messages between the defendant and nonparty Cynthia Monaco, a friend of the defendant and an attorney. The defendant then moved, among other things, to compel the plaintiff to return or destroy those electronic communications between her and Monaco, on the basis of the attorney-client privilege. Supreme Court, inter alia, denied the defendant’s motion. The Appellate Division affirmed. It observed that Article 45 of the CPLR contains, inter alia, the evidentiary privileges based on confidential communications between, among others, attorney and client (see CPLR 4503). The attorney-client privilege shields from disclosure any confidential communications between an attorney and his or her client made for the purpose of obtaining or facilitating legal advice in the course of a professional relationship. The critical inquiry is whether, viewing the lawyer’s communication in its full content and context, it was made in order to render legal advice or services to the client. The party asserting the privilege has the burden of demonstrating that it is applicable. Here, the Supreme Court properly determined that the defendant failed to establish that an attorney-client relationship existed between her and Monaco, and that the subject electronic communications were therefore privileged based on such a relationship.
Appellate Division, Third Department
The parties’ ability to enter into an enforceable settlement agreement is specifically conditioned upon the provisions of GOL § 5–311 which prohibits spouses from contracting to “relieve either of his or her liability to support the other in such a manner that he or she will become incapable of self-support and therefore is likely to become a public charge.”
In Majid v Hasson, 2023 WL 2168397 (3d Dept.,2023) Plaintiff (husband) and defendant ( wife) were married in Iraq in 1988 and had one unemancipated child (born in 2010). The husband commenced an action for divorce in April 2019. The wife applied for poor person status and appointment of counsel, which Supreme Court granted. The parties executed a settlement agreement. According to the wife, she immediately rescinded her assent and demanded the return of the agreement. When it was not returned to her, she sought, and was appointed, new counsel. The wife moved to set aside the settlement agreement asserting that her lack of English proficiency and the general economic unfairness of the terms rendered the agreement unjust and unconscionable. Supreme Court denied the wife’s motion and entered a judgment of divorce incorporating, but not merging, the settlement agreement. The Appellate Division observed, inter alia, that the parties’ ability to enter into an enforceable settlement agreement is specifically conditioned upon the provisions of General Obligations Law § 5–311 which prohibits spouses from contracting to dissolve a marriage and “relieve either of his or her liability to support the other in such a manner that he or she will become incapable of self-support and therefore is likely to become a public charge.” The fact that a wife waives spousal support, even in a long-term marriage, does not, in and of itself, render an agreement unconscionable, especially an agreement containing affirmations that the parties have been made aware of the current spousal support guidelines and wherein they both represent that they are capable of self-support. Article four of the settlement agreement, concerning spousal support, set forth the wife’s income as $11,446, which was well below the applicable federal 2020 poverty guidelines. As such, there was a question as to whether this provision was in violation of General Obligations Law § 5–311 in that the wife “is likely to become a public charge.” Because of this, it found that Supreme Court erred when it failed to make an inquiry into the circumstances surrounding the wife’s waiver of spousal support. The matter was remitted for a hearing at which Supreme Court must necessarily also inquire into child support as the Child Support Standards Act requires that “maintenance shall be calculated prior to child support because the amount of maintenance shall be subtracted from the [husband]’s income and added to the [wife]’s income as part of the calculation of the child support obligation. It observed that because the settlement agreement contained a severability clause it saw no reason to set aside the judgment of divorce.
Federal stimulus payments are subject to equitable distribution and, therefore, Family Court does not have jurisdiction to direct a father to remit them to the mother.
In Matter of Josefina O. v. Francisco P, 2023 WL 2168447 (3d Dept.,2023)
Petitioner ( mother) and respondent (father) were separated parents of five children. By an order of support on consent entered in August 2019, the father agreed to pay the mother a weekly sum of child support and spousal support. In December 2020, the mother filed a family offense petition against the father. A month later, in January 2021, the mother commenced a divorce action and, in the context of this proceeding, the mother moved, for temporary child support and for the recoupment of federal stimulus payments received by the father for the benefit of the children. Family Court granted the mother’s motion under the guise of its authority “to issue a temporary order for child support ... within a family offense proceeding” pursuant to Family Ct Act § 828(4), and ordered that the father pay the mother a lump sum of money representing the children’s share of the federal stimulus funds that he received. The Appellate Division agreed with the father that the federal stimulus payments were subject to equitable distribution and, therefore, Family Court did not have jurisdiction to direct him to remit them to the mother. The Coronavirus Aid, Relief, and Economic Security Act provided eligible individuals an “advance refund amount” of the applicable tax credit of $500 for each qualifying child. Thereafter, eligible individuals were entitled to an additional “advance refund” of the applicable tax credit of $600 for each qualifying child under the Tax Relief Act of 2020. These federal stimulus payments were not paid “for the benefit of the minor children,” but they were the parties’ advance refund for a tax credit earned pursuant to their last tax return, which was jointly filed, and which was partially measured by the number of children the tax filers had listed as dependents. Generally, a tax refund is marital property and subject to equitable distribution by Supreme Court. Although, within the context of a family offense petition, Family Court may issue an order for temporary child support, and there could be appropriate circumstances where a party’s tax refund may be seized to satisfy child support obligations those circumstances were not present here. Moreover, Family Court’s order lacked the necessary requirements of an order for temporary support, and did not comply with the relevant statute’s requirement to advise the mother regarding services of the support collection unit (see Family Ct Act § 828[4]) – which had already been collecting the father’s regular payments. Nor did the order satisfy the purpose of temporary child support, particularly when further considering the legislative intent behind Family Ct Act § 828(4), which was enacted as part of the Family Protection and Domestic Violence Intervention Act of 1994 (see Senate Introducer’s Mem in Support, Bill Jacket, L 1994, ch 222 at 16, 24). Accordingly, it was an error to order the father to remit these advance tax refunds to the mother under the guise of a temporary order of child support
Resettlement is an appropriate, and preferred, remedy when a party alleges that an order does not accurately incorporate the terms of a stipulation
In Matter of Patrick UU v Francesca VV, --- N.Y.S.3d ----, 2023 WL 2168419, 2023 N.Y. Slip Op. 01040 (3d Dept., 2023) the Appellate Division held that there is no specific time limit in which to move to resettle. Resettlement, which “rest[s] on the inherent power of courts to cure mistakes, defects and irregularities that do not affect substantial rights of the parties”, is an appropriate, and preferred, remedy when a party alleges that an order does not accurately incorporate the terms of a stipulation.
February 16, 2023
Appellate Division, First Department
Expenses for a child’s residential program in a therapeutic boarding school properly treated as medical or therapeutic, rather than educational, where the program did not offer classes or course credit
In Matter of Ning-Yen Y v Karen K, --- N.Y.S.3d ----, 211 A.D.3d 622, 2022 WL 17835664, 2022 N.Y. Slip Op. 07310 (1st Dept.,2023), the parties’ parenting agreement provided that the children’s educational costs were to be allocated 70% to the father and 30% to the mother, while unreimbursed, nonelective medical, therapeutic, and psychiatric expenses were to be allocated 92% to the father and 8% to the mother. The Appellate Division held that it was an improvident exercise of discretion for the Family Court to deny the mother’s objection to the Support Magistrate’s characterization of the residential treatment program in Idaho as an educational expense rather than a therapeutic expense. The evidence presented at the hearing demonstrated that the subject program did not offer classes or course credit, and the father does not dispute that the child took online courses and classes at a local high school from which he received his high school diploma. Moreover, the father’s email to the mother and testimony made clear that the overriding purpose of enrolling the child in the therapeutic boarding school ... was to provide the child with intensive psychiatric and substance abuse treatment in a residential setting. Accordingly, the expenses for the residential program were properly treated as medical or therapeutic rather than educational, and the amount allocated to the mother for the expenses of this program must be recalculated at 8% rather than 30%.
The child does not have full-party status and cannot veto a settlement reached by the parents and force a trial after the attorney for the child had a full a fair opportunity to be heard.
In Matter of Kylie P.--- N.Y.S.3d ----, 2023 WL 1826825 (Mem), 2023 N.Y. Slip Op. 00735 (1st Dept.,2023) after the court determined that there had been a change in circumstances warranting modification of the prior custody order, the parents entered into a settlement agreement, which the court incorporated into a modified custody order over the objection by the attorney for the older child. The Appellate Division held that although the attorney for the child in a custody proceeding has authority to pursue an appeal on behalf of the child, the child does not have full-party status and cannot veto a settlement reached by the parents and force a trial after the attorney for the child had a full a fair opportunity to be heard.
Appellate Division, Second Department
Bonds, purchased during the marriage with separate property and placed in both parties’ names, were not the defendant’s separate property
In Glessing v Glessing,--- N.Y.S.3d ----, 2023 WL 380072, 2023 N.Y. Slip Op. 00306 (2d Dept.,2023) the parties were married in 1992. In 2017, the plaintiff commenced this action for a divorce. A judgment of divorce was entered in 2019. Supreme Court denied the defendant a separate property credit of $220,000 for the purchase of the marital residence; (2) directed the defendant to remit half of the cash in a home safe to the plaintiff; (3) directed the defendant to remit $23,692.64 from a Chase bank account to the plaintiff; (4) directed the distribution of the net proceeds of certain bonds to be divided equally between the parties; (5) directed the defendant to pay the plaintiff half of the parties’ marital credit card debt; and (6) awarded the plaintiff counsel fees.
The Appellate Division affirmed. It rejected the defendant’s contention that the “I” bonds, purchased in both parties’ names, were his separate property because he purchased them with proceeds from his disability pension. Pension benefits, except to the extent that they are earned or acquired before marriage or after commencement of a matrimonial action, constitute marital property because they are “in essence, a form of deferred compensation derived from employment” during the marriage. However, any compensation a spouse receives for personal injuries is not considered marital property and is not subject to equitable distribution. Thus, to the extent a disability pension represents deferred compensation, it is subject to equitable distribution while to the extent that a disability pension constitutes compensation for personal injuries, that compensation is separate property which is not subject to equitable distribution. However, separate property that is commingled with marital property may lose its separate character. Here, although the Supreme Court determined that the plaintiff was not entitled to share in any portion of the defendant’s pension that was attributable to the defendant’s disability pension, it found that the “I” bonds, purchased during the marriage and placed in both parties’ names, were not the defendant’s separate property. Thus, the court providently exercised its discretion in ordering the net proceeds of the bonds to be divided equally between the parties.
Letter of intent between spouses was unenforceable because it did not comply with the DRL§ 236(B)(3) requirement that signatures must be acknowledged or proven in the manner required to record a deed.
In Chin-Cheung v Cheung, --- N.Y.S.3d ----, 2023 WL 379756, 2023 N.Y. Slip Op. 00301 (2d Dept.,2023) the parties were married in 1964. During the marriage, the parties signed an agreement entitled “Letther [sic] of Intent Between [the defendant] and [the plaintiff] Property Ownership Agreement” in which the parties agreed not to share assets with each other in the event of a divorce if the defendant transferred all shares of a certain corporation to their adult son. In 2018, the plaintiff commenced this action for a divorce. The plaintiff moved, inter alia, for a determination that the letter of intent is an invalid and unenforceable postnuptial agreement. Supreme Court, inter alia, granted the plaintiff’s motion. The Appellate Division affirmed. The letter of intent was an agreement between spouses subject to Domestic Relations Law § 236(B)(3). A written agreement between spouses made before or during a marriage concerning the ownership, division, or distribution of property which does not meet the formalities of Domestic Relations Law § 236(B)(3) is not enforceable. The letter of intent was unenforceable because it did not comply with the Domestic Relations Law § 236(B)(3) requirement that signatures must be acknowledged or proven in the manner required to record a deed (see Galetta v. Galetta, 21 N.Y.3d at 192, 969 N.Y.S.2d 826, 991 N.E.2d 684; Matisoff v. Dobi, 90 N.Y.2d at 135, 659 N.Y.S.2d 209, 681 N.E.2d 376).
A suspension of child support payments is warranted where the custodial parent’s actions rise to the level of deliberate frustration or active interference with the noncustodial parent’s visitation rights
In Morgan v Morgan, --- N.Y.S.3d ----, 2023 WL 1425597, 2023 N.Y. Slip Op. 00424 (2d Dept.,2023) the mother was awarded sole custody of the children, and the father was directed to pay child support to the mother. In July 2019, the father moved to suspend his child support obligation, alleging, inter alia, parental alienation on the part of the mother. Family Court suspended his child support obligation on the ground of parental alienation. The Appellate Division affirmed. It held that child support payments may be suspended ‘where the noncustodial parent establishes that his or her right of reasonable access to the child has been unjustifiably frustrated by the custodial parent. A suspension of child support payments is warranted only where the custodial parent’s actions rise to the level of deliberate frustration or active interference with the noncustodial parent’s visitation rights. The evidence adduced at the hearing demonstrated that the children held distorted and illogical views regarding the father and his efforts to develop a relationship with them. There was evidence that the older child, for example, viewed the father’s efforts to develop a relationship with the children as threatening, had homicidal thoughts with regard to the father, and refused to believe that the father had traveled to visit with her even when presented with photographs and the father’s passport demonstrating that he had. There was also evidence that the mother failed to make efforts to assist the children in developing a relationship with the father, and instead encouraged the children’s negative view of the father in an apparent effort to weaponize the children against him. The mother refused to produce the children for parental access on numerous occasions, particularly after sessions of supervised parental access that were seen as successful in moving the children towards reunification with the father, and she discussed the father’s child support payments with one of the children. The mother had also refused to produce the children for an evaluation with the court-ordered forensic evaluator after having initially done so because, according to the mother, one of the children had been traumatized by an earlier session. The evaluator testified that the mother engaged in an intentional “pattern of alienation” in which she would withhold the children from parental access with the father following appropriate and positive interactions between them, claiming that the children had been traumatized by the visit.
There is no per se rule that a finding of abuse or neglect of one sibling requires a finding of derivative abuse or neglect with respect to the other siblings
In Mattter of Destiny R, --- N.Y.S.3d ----, 2023 WL 152067, 2023 N.Y. Slip Op. 00093 (2d Dept.,2023) the Appellate Divison observed that proof of the abuse or neglect of one child is admissible evidence on the issue of the abuse or neglect of any other child of, or the legal responsibility of, the respondent” (Family Ct Act § 1046[a][i]). There is no per se rule that a finding of abuse or neglect of one sibling requires a finding of derivative abuse or neglect with respect to the other siblings. The focus of the inquiry with respect to derivative findings is whether the evidence of abuse or neglect of another child or children demonstrates such an impaired level of parental judgment so as to create a substantial risk of harm for the other child or children in the parent’s care.
Mother’s 911 call fell within the excited utterance exception to the rule against hearsay where she made the call immediately after a startling and disturbing event, while still concerned for the safety of her children, and her demeanor indicated that the statements represented “impulsive and unreflecting responses” to the startling event.
In Matter of Omar G, --- N.Y.S.3d ----, 2023 WL 152056, 2023 N.Y. Slip Op. 00085 (2d Dept.,2023) the appellant, an adolescent offender was charged with criminal possession of a weapon in the second degree, among other offenses. At a fact-finding hearing in the Family Court, a recording of the call placed by the mother to the 911 emergency number during the incident was admitted into evidence under the excited utterance exception to the hearsay rule. During this call, the mother told the 911 operator, in an anxious tone and without being prompted, that “I need police.... My son’s got a gun and he’s waving it.... I have kids in the house.” She indicated that she needed to return to the apartment, which she had left in order to make the call. The Family Court also admitted into evidence, under the excited utterance exception, a video recording of a statement made by the mother during questioning by police officers in the apartment after the appellant had been arrested and taken to a police station, and permitted a police officer to testify as to the contents of the mother’s statement. While being interviewed by police officers, the mother recounted to the police officers that the appellant, while displaying a gun, said to her “I will boom you,” and also said that he would “boom” the mother’s boyfriend. Family Court, inter alia, found that the appellant committed acts which, if committed by an adult, would constitute the crimes of criminal possession of a weapon in the second degree, criminal possession of a firearm, endangering the welfare of a child, and obstructing governmental administration in the second degree, and adjudicated him a juvenile delinquent. The Appellate Division held that the recording of the mother’s 911 call fell within the excited utterance exception to the rule against hearsay. The mother made the call immediately after a startling and disturbing event, while she was still concerned for the safety of the two children in the apartment, and her demeanor indicated that the statements represented “impulsive and unreflecting responses” to the startling event. It erred however, in admitting as excited utterances the statements subsequently made by the mother while being interviewed by police officers in her apartment. Those statements, made after the appellant had been handcuffed and removed from the scene, were not spontaneous, but were made in narrative form and in response to prompting, after sufficient time had passed to render the mother capable of engaging in reasoned reflection. Although the mother raised her voice and became agitated as she recalled the incident, she was no longer acting under the stress of the incident itself, and her tone “did not evidence an inability to reflect upon the events” (People v. Cantave, 21 N.Y.3d 374, 382, 971 N.Y.S.2d 237, 993 N.E.2d 1257). The error in admitting those statements was not harmless with respect to the charge of criminal possession of a weapon in the second degree, and appellant was entitled to a new fact-finding hearing on the count of the petition charging criminal possession of a weapon in the second degree.
When a party has defaulted, the court must order child support based upon the needs or standard of living of the child, whichever is greater
In Rosenbaum v Festinger, --- N.Y.S.3d ----, 2023 WL 1808123, 2023 N.Y. Slip Op. 00684 (2d Dept.,2023) the parties were married in December 2001 and had two children, born in 2003 and 2004, respectively. In January 2013, the plaintiff commenced this action for a divorce. In September 2014, the plaintiff moved, inter alia, to direct the defendant to comply with certain discovery requests and, if the defendant failed to comply, to preclude him from offering evidence at trial relating to financial matters. In an order dated December 23, 2014, after a hearing, the Supreme Court granted the plaintiff’s motion. It stated, inter alia, that, in the event that the defendant failed to comply with the order, the court would determine child support based on the children’s needs as established at trial rather than upon consideration of the formula and factors set forth in the Child Support Standards Act. Subsequently, the defendant failed to comply with the conditional order of preclusion and, consequently, was precluded from presenting evidence at trial regarding his financial circumstances. In a judgment of divorce the Supreme Court, inter alia, directed the defendant to pay child support to the plaintiff of $5,597 per month. The Appellate Division affirmed. It held that when a party has defaulted and/or the court is otherwise presented with insufficient evidence to determine gross income, the court shall order child support based upon the needs or standard of living of the child, whichever is greater” (Domestic Relations Law § 240[1–b][k]). Here, as authorized, the Supreme Court calculated the defendant’s monthly child support obligation on the basis of the children’s needs and did not impute income to the defendant. Thus, the requirement that the court specifically state the amount of income imputed and the resultant calculations did not apply.
Under the UCCJEA, a court of New York shall treat a foreign country as if it were a state of the United States” and may treat a foreign nation as a home state
In Cavez v Maldonado, --- N.Y.S.3d ----, 2023 WL 1808086, 2023 N.Y. Slip Op. 00659 (2 Dept.,2023) the parties have one son, born in March 2009, who had resided in Guatemala with the mother since birth. The father lives in New York. On June 20, 2021, the mother and the child came to the United States on tourist visas. On July 6, 2021, the child came to New York to visit the father. In October 2021, when the father allegedly refused to return the child to the mother, the mother filed two petitions for writs of habeas corpus which were later “marked satisfied.” On October 13, 2021, the father moved, by order to show cause, requesting the Family Court to exercise temporary emergency jurisdiction over the child pursuant to Domestic Relations Law § 76–c; he also filed a petition for custody of the child. On October 25, 2021, the mother cross-petitioned for custody. Subsequently, the court confirmed the referee’s finding that New York is not the child’s home state and that there was no basis for the court to exercise temporary emergency jurisdiction. In an order dated December 8, 2021, the court, inter alia, in effect, dismissed the father’s petition on the ground that it lacked jurisdiction and directed that the child be released to the physical custody of the mother for the purpose of returning to Guatemala, the child’s home state. The Appellate Division affirmed. It observed that the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) defines “home state” as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding” (Domestic Relations Law § 75–a[7]) Under the UCCJEA, a court of New York “shall treat a foreign country as if it were a state of the United States” (Domestic Relations Law § 75–d[1]) and thus, may treat a foreign nation as a home state. When the parties commenced their custody proceedings in October 2021, Guatemala was the child’s home state for the purposes of the statute, and New York had never been the home state of the child. The Family Court therefore lacked jurisdiction to make an initial custody determination (see Domestic Relations Law § 76[1][a]).
Since the father testified that he was paying the mortgage and utility bills for the house in which the mother and the child were residing, the Support Magistrate erred in failing to ascertain and deduct from his child support obligation the shelter costs incurred by the father in providing housing for the mother and the child
In Glaudin v Glaudin, --- N.Y.S.3d ----, 2023 WL 1808087, 2023 N.Y. Slip Op. 00662 (2d Dept.,2023) the parties had one child together, who was born in November 2018 while the parties were in the process of obtaining a divorce. The father moved out of the marital residence, which was owned by him as separate property, and the mother and the child continued to live there. In January 2020, the mother filed a petition against the father for child support. After conducting a hearing, the Support Magistrate determined that the father’s assertion that he was unable to procure employment lacked credibility and imputed certain income to him based on his reported monthly expenses. In an order dated January 13, 2021, the Support Magistrate, inter alia, directed the father to pay basic child support of $211 per week. The father filed objections to the Support Magistrate’s order, asserting that he had lost his last job due to absences resulting from being required to attend Family Court proceedings, and that the mother was residing in his home without paying rent or utility bills. In an order dated February 19, 2021, the Family Court denied the father’s objections. The Appellate Division held that the Support Magistrate providently exercised her discretion in imputing income to the father based on his work experience and earning capacity, and her assessment of his credibility. However, since the father testified without contradiction that he was responsible for paying the mortgage and utility bills for the house in which the mother and the child were residing, the Support Magistrate erred in “failing to ascertain and deduct from his child support obligation the shelter costs incurred by the [father] in providing housing for [the mother and the child]” As a result of the failure to award him a credit for the carrying charges he has incurred during the mother’s exclusive occupancy of the marital residence, the father “was making double shelter payments”. The father’s objection to the failure to award him such a credit should have been granted. It remitted the matter to the Family Court for a recalculation of the father’s child support obligation and child support arrears, with the father receiving a credit for any carrying charges incurred by him in providing housing to the mother and the child.
Appellate Division, Third Department
Visitation denied where exposing the children further to the mother, who continued to deny that sexual abuse took place, would retraumatize them and be harmful to their welfare
In Matter of William Z v Kimberly Z, --- N.Y.S.3d ----, 2023 WL 402039, 2023 N.Y. Slip Op. 00352 (3d Dept.,2023) Family Court granted sole custody to the father and denied the mother visitation. The Appellate Division affirmed. It found that the testimony of the children’s three mental health counselors provided ample basis for the court’s conclusion that sexual abuse by the grandfather took place and that the mother was aware of it but took no action to investigate the allegations or protect her children from their abuser. It found that exposing the children further to the mother, who continued to deny that the abuse took place, would retraumatize them and be harmful to their welfare. The record made clear that the mother failed to address or even acknowledge her involvement in the abuse via her own existing counseling. A sound and substantial basis in the record supported Family Court’s determination to deny the mother visitation with the children.
Where the court does not identify the family offense(s) proven by the petitioner, the Appellate Division may independently review the record and determine whether the evidence supports Family Court’s finding that the respondent committed one or more family offense.
In Matter of Pauline DD., v. Dawn DD.--- N.Y.S.3d ----, 2023 WL 402052, 2023 N.Y. Slip Op. 00353 (3d Dept.,2023) petitioner commenced a family offense proceeding. At the conclusion of the hearing, Family Court issued a bench decision, which found that the petitioner had committed the family offense of harassment in the second degree. The court also found that the respondent had committed an unspecified family offense and issued a two-year protection order. The Appellate Division held that where, as here, the court does not identify the family offense(s) proven by the petitioner, it may independently review the record and determine whether the evidence supports Family Court’s finding that the respondent committed one or more family offenses.
Where Administrative Law Judge determination was properly before the Support Magistrate and Family Court because it was annexed to the petition and formed a part of that pleading it would not, standing alone, serve as proof of the father’s allegations because it was not formally offered and received into evidence.
In Woodcock v Welt, --- N.Y.S.3d ----, 2023 WL 402096, 2023 N.Y. Slip Op. 00360 (3d Dept.,2023) in July 2019, the filed a support modification petition in which he claimed that he was disabled and unable to work. He provided support for that claim, however, annexing to the petition a May 2019 determination by an Administrative Law Judge (ALJ) who had presided over a hearing on his application for Social Security disability benefits. The ALJ determination included a description of the medical proof presented regarding the father’s physical condition, and findings that the father was disabled as defined by federal law as of November 1, 2016 and entitled to supplemental security income. After a hearing on the father’s petition, where the ALJ determination was a subject of inquiry but the written decision itself was never formally entered into evidence, the Support Magistrate issued a decision finding that the father, who had been laid off from his employment during the pendency of the proceeding, had demonstrated a change in circumstances since the prior support order in that he was physically impaired from working. The Support Magistrate found that the father remained capable of performing some work, imputed a lower annual income of $20,280 to him and, relying upon that figure, reduced his support obligation to $50 a month. Family Court denied the mother’s objections. The Appellate Division affirmed. It held that although the ALJ determination was properly before the Support Magistrate and Family Court because it was annexed to the petition and formed a part of that pleading (see CPLR 3014), it would not, standing alone, serve as proof of the father’s allegations because it was not formally offered and received into evidence. However, an order from a Support Magistrate is final and Family Court’s review under Family Ct Act § 439(e) is tantamount to appellate review, and “the absence of timely objection” to evidence at a hearing will result in the waiver of any challenge to its consideration on appeal. The mother offered no objection to the consideration of the ALJ determination during the fact-finding hearing. Both counsel for the mother and the Support Magistrate questioned the father regarding the ALJ determination, and he testified regarding its existence, his purported inability to work and his receipt of SSI. The mother waived her objection to consideration of the ALJ determination under these circumstances and, as such, Family Court properly denied it. The Appellate Division was satisfied that the father demonstrated a sufficient change in circumstances to warrant a downward modification in his child support obligation
Family Court’s allocution in juvenile delinquency proceeding fell short of the statutory mandate warranting dismissal where Family Court failed to question respondent’s mother regarding the acts to which respondent admitted, his waiver of the fact-finding hearing or her awareness of the possible dispositional options.
In Matter of Christian W.,--- N.Y.S.3d ----, 211 A.D.3d 1378, 2022 WL 17835265, 2022 N.Y. Slip Op. 07275 (3d Dept.,2022) petitioner commenced three juvenile delinquency proceedings against respondent (born in 2008). In satisfaction of all three petitions, respondent admitted to the charge of criminal mischief in the fourth degree, as alleged in the first petition, and consented to be placed in a nonsecure facility for one year. Respondent appealed. The Appellate Division held that respondent’s argument that the plea allocution did not comply with Family Ct Act § 321.3 was not moot, despite the expiration of respondent’s placement, because the delinquency determination challenged herein “implicates possible collateral legal consequences. Further, preservation of such a claim is not required. It held that Family Court must “ascertain through allocution of the respondent and his [or her] parent or other person legally responsible for his [or her] care, if present, that (a) he [or she] committed the act or acts to which he [or she] is entering an admission, (b) he [or she] is voluntarily waiving his [or her] right to a fact-finding hearing, and (c) he [or she] is aware of the possible specific dispositional orders” (Family Ct Act § 321.3[1]). Although respondent’s mother was present at the April 2021 allocution, Family Court only asked her whether she had sufficient time to speak to respondent about the proceedings. The record reflected that the court failed to question respondent’s mother regarding the acts to which respondent admitted, his waiver of the fact-finding hearing or her awareness of the possible dispositional options. As a result, Family Court’s allocution fell short of the statutory mandate (see Family Ct Act § 321.3[1]) The order was reversed and the petition dismissed.
Appellate Division, Fourth Department
The Marihuana Regulation and Taxation Act) amended Family [Court] Act § 1046 (a) (iii), in pertinent part, by specifically foreclosing a prima facie neglect finding based solely upon the use of marihuana.
In Matter of Gina R, --- N.Y.S.3d ----, 211 A.D.3d 1483, 2022 WL 17882663, 2022 N.Y. Slip Op. 07321(4th Dept.,2023) a neglect proceeding, the Appellate Division, inter alia, agreed with the mother that the court erred in applying Family Court Act § 1046 (a) former (iii) in determining that petitioner established a prima facie case that the subject children were neglected based solely on the mother’s use of marihuana, without presenting evidence that the children’s condition was impaired or at imminent risk of impairment (see Family Ct Act § 1046 [a] [iii]) and modified the order by vacating that finding. “The Marihuana Regulation and Taxation Act (L 2021, ch 92) amended Family [Court] Act § 1046 (a) (iii), in pertinent part, by specifically foreclosing a prima facie neglect finding based solely upon the use of marihuana, while still allowing for consideration of the use of marihuana to establish neglect, provided that there is a separate finding that the child’s physical mental or emotional condition was impaired or is in imminent danger of becoming impaired.. The amendment to section 1046 (a) (iii) went into effect on March 31, 2021 (see L 2021, ch 92), two days before the court rendered its decision in this case and, as a general matter, a case must be decided upon the law as it exists at the time of the decision. Inasmuch as petitioner’s presentation of evidence was based on the state of the law at the time of the hearing, petitioner may not have fully explored the issue of impairment. It remitted the matter to Family Court to reopen the fact-finding hearing on the issue whether the children’s condition was impaired or at imminent risk of impairment as a result of the mother’s use of marihuana.
Contract is unambiguous if language it uses has a definite and precise meaning, unattended by danger of misconception, and concerning which there is no reasonable basis for a difference of opinion.
In Vella v Vella, 2023 WL 1494924 (4th Dept.,2023) the Appellate Division held that whether an agreement is ambiguous is a question of law for the courts ... Ambiguity is determined by looking within the four corners of the documents, not to outside sources. (Kass v. Kass, 91 N.Y.2d 554, 566, 673 N.Y.S.2d 350, 696 N.E.2d 174 [1998]). A contract is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the [agreement] itself, and concerning which there is no reasonable basis for a difference of opinion’.
Family Court order staying petitions for custody is not appealable as of right
In Feltz v Yanucil, 2023 WL 1495062 (4th Dept.,2023) the father filed a petition seeking, inter alia, modification of the prior custody order and the Family Court determined that New York was an inconvenient forum and issued an order staying the proceedings pending the commencement of custody and visitation proceedings in Mercer County, New Jersey. The Appellate Division held that the order staying the father’s petitions was not appealable as of right. (but granted leave to appeal on its own motion).
The court does not have the right to impose counseling and related conditions as a prerequisite to visitation
In Sharlow v Hughes --- N.Y.S.3d ----, 2023 WL 1495695, 2023 N.Y. Slip Op. 00518 (4th Dept.,2023) the Appellate Division held that the court erred in requiring the mother to participate in counseling, take her medications as prescribed, and provide proof of a negative hair follicle test prior to having therapeutic visitation with her children. Although the court may include such directives as a component of visitation, it does not have the authority to make them a prerequisite to visitation.
Where a party fails to appear in court on a scheduled date but is represented by counsel, the order of protection is not one entered upon the default of the aggrieved party and appeal is not precluded.
In Matter of Bailey v Bailey, --- N.Y.S.3d ----, 2023 WL 1877874, 2023 N.Y. Slip Op. 00780 (4th Dept., 2023) the Appellate Division agreed with the father that Family Court erred in entering an order of protection upon his default based on his failure to appear in court. The record establishes that the father was represented by counsel, and it has previously determined that where a party fails to appear in court on a scheduled date but is represented by counsel, the order is not one entered upon the default of the aggrieved party and appeal is not precluded. It agreed with the father that the court erred in issuing an order of protection without adhering to the procedural requirements of Family Court Act § 154-c (3) ..., inasmuch as the court did not make a finding of fact that the mother was entitled to an order of protection based upon ‘a judicial finding of fact, judicial acceptance of an admission by the father or judicial finding that the father has given knowing, intelligent and voluntary consent to its issuance. The court failed to specify which family offense the father committed. Nevertheless, remittal was not necessary because the record was sufficient for this Court to conduct an independent review of the evidence which was sufficient to establish by a fair preponderance of the evidence that the father committed the family offenses of criminal obstruction of breathing or blood circulation and stalking in the fourth degree warranting the issuance of an order of protection against him (see Family Ct Act § 832).
Effective appellate review, whatever the case but especially in child visitation, custody or neglect proceedings, requires that appropriate factual findings be made by the trial court
In Matter of Ianello v Colonomos, --- N.Y.S.3d ----, 2023 WL 1877715, 2023 N.Y. Slip Op. 00767 (4th Dept., 2023) the father appealed from an order that inter alia, awarded the parties joint legal custody of the child with primary physical custody to petitioner mother. The Appellate Division observed that in the order on appeal, the court failed to make any factual findings whatsoever to support the award of primary physical custody. It is well established that the court is obligated ‘to set forth those facts essential to its decision. Here, the court completely failed to follow that well-established rule when it failed to issue any factual findings to support its initial custody determination, nor did it make any findings with respect to the relevant factors that it considered in making a best interests of the child determination. Effective appellate review, whatever the case but especially in child visitation, custody or neglect proceedings, requires that appropriate factual findings be made by the trial court—the court best able to measure the credibility of the witnesses. It reversed the order and remitted the matter to Family Court to make a determination on the petition and cross petition, including specific findings as to the best interests of the child, following an additional hearing if necessary.
Supreme Court
Supreme Court held that CPLR § 3122(d) was not intended to include reimbursement of attorneys fees within the context of a matrimonial action
In L.F.,v. M.F.,--- N.Y.S.3d ----, 2023 WL 1875169, 2023 N.Y. Slip Op. 23038
(Sup Ct, 2023) the Supreme Court held that CPLR § 3122(d) was not intended to include reimbursement of attorneys fees within the context of a matrimonial action. CPLR § 3122(d) provides as follows: (d) Unless the subpoena duces tecum directs the production of original documents for inspection and copying at the place where such items are usually maintained, it shall be sufficient for the custodian or other qualified person to deliver complete and accurate copies of the items to be produced. The reasonable production expenses of a non-party witness shall be defrayed by the party seeking discovery. After a close and fair reading of the plain language of CPLR § 3122(d), this Court did not find that the statute expressly or implicitly authorizes the reimbursement of attorney’s fees for a non-party witness responding to a lawfully issued subpoena, especially within the context of a matrimonial action. Nowhere in the plain language of CPLR § 3122(d) are the words “legal fees”, “counsel fees”, “attorney’s fees” or “fees”.
New York's priest-penitent privilege belongs only to the penitent and only under circumstances affirmed by the New York Court of Appeals in Lightman v. Flaum, 97 N.Y.2d 128, 134, 736 N.Y.S.2d 300, 761 N.E.2d 1027 [2001] (only information imparted ‘in confidence and to obtain spiritual guidance).
In L.M., v. M.A., 2023 WL 1810035 (Sup Ct, 2023) the Supreme Court declined to quash a subpoena requiring a Coptic Orthodox Church Bishop to testify in a matrimonial action over his objection, allegedly based on religious doctrine, where his testimony was necessary to determine whether or not he conducted a wedding ceremony for the two parties to this action. The parties disagreed about whether they were married in 2017, with the plaintiff stating that they were married, and the defendant stating that the Bishop “blessed” their relationship, but did not marry them. The Bishop refused to testify as to which ceremony he performed, allegedly because his religious conviction prevents him from testifying in a civil action involving church members, and the parties and their witnesses have testified to diametrically conflicting views as to which ceremony took place. The Court and the parties all asked the Bishop to testify. Defendant served a valid subpoena upon the Bishop and the Bishop, through counsel, moved to quash the subpoena, stating through counsel and an affidavit from a Coptic theologian, that it is contrary to the tenets of the religion for the Bishop to testify in civilian court “brother against brother.”Both parties expressly waived any privilege and sought to compel the Bishop’s testimony. The court found that Bishop A.B.’s testimony was necessary to make that “compelling State interest” determination of whether or not the parties were married.
Family Court
In Matter of I.M., N.M., J.A.D., D.M., K.D., B.M.,--- N.Y.S.3d ----, 2022 WL 18107290, 2022 N.Y. Slip Op. 22398 (Family Court, 2022) Administration for Children’s Services ( “ACS”) filed an abuse petition against the respondent P.D. (“RF”) on behalf of the children I.M., N.M., J.A.D., D.M. and K.D. A finding of abuse and neglect was entered against RF on behalf of all those children on August 2, 2022. On August 25, 2022, ACS filed another abuse petition against RF and T.M. ( “RM”). On August 29, 2022, the attorney for SC B.M. and the attorney for SC D.M. filed separate applications for DNA testing to be done on RF to determine if he was the biological father of their respective clients. On September 1, 2022, ACS filed a separate application for DNA testing under separate legal grounds but indicated that they fully supported the motions filed by the attorneys for the children. On September 8, 2022, RM filed an application in opposition to the motions filed by the attorneys for the children and ACS. RF filed a response on October 24, 2022, after requesting extensions. Family Court granted the motion. It observed that Family Court Act 1038-a is clear that “upon the motion of a petitioner or attorney for the child, the court may order a respondent to provide non-testimonial evidence, only if the court finds probable cause that the evidence is reasonably related to establishing the allegations in a petition filed pursuant to this article. Such order may include, but not be limited to, provision for the taking of samples of blood, urine, hair or other materials from the respondent’s body in a manner not involving an unreasonable intrusion or risk of serious physical injury to the respondent.” In Matter of Abe A., 56 N.Y.2d 288, 452 N.Y.S.2d 6, 437 N.E.2d 265 (1982), the Court held that an order to obtain a blood sample of a suspect may be issued provided the People establish (1) probable cause to believe the suspect has committed the crime, (2) a “clear indication” that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable.” In re Anthony M., supra, the Court upheld that the agency had the ability to intervene and request paternity testing where paternity was disputed during a pending abuse matter. However, courts have not found probable cause in cases where the request for nontestimonial evidence was not related to the allegations. The Court granted the motions of the attorneys for the children and ACS and ordered RF and SC D.M. and B.M. to submit to DNA testing forthwith at an approved laboratory and in compliance with all regulations. The Court found probable cause to order RF to submit to DNA testing for the purpose of determining the paternity of both D.M. and B.M. The Court heard and credited the testimony of I.M. during the 2020 fact-finding against RF and his testimony established that RF repeatedly sexually assaulted RM and that both RM and RF made statements claiming that D.M. was their child together. Thus, this put D.M. paternity at issue, as there are conflicting statements from the parties as to his paternity. Establishing his paternity is in his best interests, as he will then know who his father is and there will be no uncertainty surrounding the father/child relationship. As to B.M., ACS alluded in their motion and had previously stated on the record that RF may have made statements in another forum about being the father of B.M. This put his paternity at issue as well and it is in the best interest of the child for him to know his father.
February 1, 2023
Appellate Division, First Department
Aggravating circumstances exist when the evidence shows that the child was present during a number of violent incidents directed at the petitioner. Aggravating circumstances also exist when the record demonstrates repeated violations of prior orders of protection.
In Matter of Marta M., v. Gopal M., --- N.Y.S.3d ----, 2023 WL 362984 (1st Dept., 2023) a family offense proceeding, the Appellate Division held that it was not an abuse of discretion for Family Court to conclude that a five-year order of protection for the mother’s benefit, and a two-year order of protection for the children’s benefit was warranted. The finding of aggravating circumstances was supported by a preponderance of the evidence showing that the child was present during a number of violent incidents directed at the petitioner (see Family Court Act § 827[a][vii]; 842). Aggravating circumstances also exist when the record demonstrates repeated violations of prior orders of protection.
Statements of net worth need only be in “substantial compliance” with the prescribed form (22 NYCRR 202.16[b])
In Matter of Antoine L v Virginie F., --- N.Y.S.3d ----, 2023 WL 305694, 2023 N.Y. Slip Op. 00252 (1st Dept.,2023) the Appellate Division affirmed an order of the Family Court which to the extent appealed from, awarded the respondent mother $75,000 in interim counsel fees. It held that the court providently exercised its discretion in awarding the mother interim counsel fees (see Domestic Relations Law § 237[b]). Contrary to the father’s contention, the mother’s failure to include with her counsel fee application a statement of net worth in the prescribed form (see 22 NYCRR 202.16[k][2]) did not mandate denial of the application as a matter of law. Although 22 NYCRR 202.16(k)(2) provides that a motion for counsel fees shall not be heard “unless the moving papers include a statement of net worth in the official form prescribed by subdivision (b) of this section,” subdivision (b) states that statements of net worth need only be in “substantial compliance” with the prescribed form (22 NYCRR 202.16[b]). The financial disclosure affidavit submitted by the mother substantially complied with the official form.
In Neglect proceeding a Suspended judgment for a period not exceeding six months, with no minimum period specified, is authorized by Family Court Act § 841(b)
In Matter of Annissa D v Martha D., --- N.Y.S.3d ----, 2023 WL 362978 (Mem), 2023 N.Y. Slip Op. 00264 (1st Dept.,2023) the Appellate Division affirmed an order of the Family Court which found that the respondent committed acts constituting the family offenses of disorderly conduct and harassment in the second degree, entered a suspended judgment set to expire immediately, vacated the temporary order of protection, and marked the matter off the calendar. It held that Family Court’s disposition was authorized by Family Court Act § 841(b), which provides for the issuance of a suspended judgment for a period not exceeding six months, with no minimum period specified. Under the circumstances of the case, Family Court providently exercised its discretion in imposing such a limit on the suspension period. At the close of the fact-finding hearing, the matter had been pending for nearly two years with a temporary order of protection in place against the respondent, and there had been no allegations that the respondent failed to comply with the order or engaged in any behavior that would warrant an extension. Moreover, in making its determination, the court properly considered the relationship of the parties. Based on the same factors that supported the limit on the suspension period, Family Court providently determined that there was good cause to dismiss the petition.
Appellate Division, Second Department
A party seeking a downward modification of an unallocated order of child support based on the emancipation of one of the children has the burden of proving that the amount of unallocated child support is excessive based on the needs of the remaining children
In Martinez v Carpanzano, --- N.Y.S.3d ----, 2023 WL 152045 (Mem), 2023 N.Y. Slip Op. 00088 (2d Dept., 2023) the Appellate Division affirmed an order which denied the father petition for a downward modification of his child support obligation on the basis that there had been a substantial change in circumstances, namely, that the parties’ older child had reached the age of twenty-one and was now emancipated. The Appellate Division held that while the eldest child’s reaching the age of twenty-one constituted emancipation, this did not automatically reduce the unallocated amount of monthly child support owed by the father, considering the express terms of the parties’ judgment of divorce and the fact that the parties’ other child remained unemancipated. Rather, a party seeking a downward modification of an unallocated order of child support based on the emancipation of one of the children has the burden of proving that the amount of unallocated child support is excessive based on the needs of the remaining children. The father failed to make the requisite showing.
Emancipation occurs once the child becomes economically independent through employment and is self-supporting. A child cannot be deemed economically independent if he or she still relies upon a parent for significant economic support.
In Vayner v Tselniker, --- N.Y.S.3d ----, 2023 WL 152093, 2023 N.Y. Slip Op. 00099 (2d Dpt., 2023 the parties’ stipulation of settlement which was incorporated into the judgment of divorce provided that the child would be emancipated if he attained the age of 18 years and became employed full-time and self-supporting. After a hearing, the Support Magistrate issued an order finding that the child was not emancipated during the period of time from December 14, 2020, to November 27, 2021. The Appellate Division affirmed. It observed that emancipation of the child suspends the parent’s support obligation. Emancipation occurs once the child becomes economically independent through employment and is self-supporting. The fact that a child may work full time is not determinative, as a child cannot be deemed economically independent if he or she still relies upon a parent for significant economic support. The evidence demonstrated that, although the child worked full-time and paid for his own car insurance, his mother still paid for his food, shelter, clothing, laundry, cell phone service, and an income tax preparation service, and his father provided the child with cash and purchased parts that were used to repair the child’s cars.
Order in neglect proceeding relating to the father’s access to the children had to be reversed and the matter remitted where no court proceeding occurred, nor was father present for a discharge conference that was to be held by the petitioner.
In Matter of Fatuma I. --- N.Y.S.3d ----, 2022 WL 17824593, 2022 N.Y. Slip Op. 07234 (2d Dept.,2022) a neglect proceeding Family Court which directed that the father shall not be present with the children unsupervised, that the father’s parental access with the children shall be supervised by the mother or the maternal grandfather, and that the father shall not reside in or spend the night in the children’s home while the children are present. It found that the Family Court did not hold a hearing before entering the provisions of the order regarding the father’s access to the children, and the father had no opportunity to be heard with respect to those provisions in the order, The court issued the order, apparently with the consent of the petitioner and the mother. No court proceeding occurred, nor did the record reflect that the father was present for a discharge conference that was to be held by the petitioner. Under these circumstances, the provisions of the order relating to the father’s access to the children had to be reversed and the matter remitted to the Family Court, to conduct a new permanency hearing with respect to the father’s access to the children
Supreme Court erred by declining to distribute any portion of the husband’s 401(k) account to the wife. Husband directed to obtain a letter from his employer setting forth the value of his 401(k) account as of date of commencement and pay to the wife 50% of the amount
In Westbrook v Westbrook, --- N.Y.S.3d ----, 2023 WL 305712, 2023 N.Y. Slip Op. 00255 (3d Dept.,2023) Plaintiff (husband) and defendant (wife) were married in April 2010 and hade three minor children. In August 2020, the husband commenced the action for divorce. At trial, both parties proceeded in a self-represented capacity. The court ordered the husband to pay maintenance to the wife of $150 per week for three years and six months. Supreme Court ordered that the husband continue to pay the mortgage until 30 days after the judgment of divorce, at which time either party could buy out the other’s interest for $7,500 or the house was to be sold. The court did not distribute the husband’s 401(k) account due to a lack of proof regarding the account’s accrual. The husband was to retain and be responsible for a Dodge Ram 1500, and the wife would retain possession and be responsible for maintaining a Jeep Grand Cherokee. Supreme Court ordered that each party also be responsible for all debts solely in his or her name. The court determined that neither party was entitled to an award of counsel fees. The wife appealed.
The Appellate Division found that Supreme Court erred by declining to distribute any portion of the husband’s 401(k) account to the wife. The parties did not dispute that the amount in the husband’s 401(k) account was approximately $1,000 and that those funds accumulated during the marriage and were thus marital property subject to equitable distribution. Although the valuation of the husband’s 401(k) account was not entirely clear, it found that the wife was entitled to her equitable share. It directed the husband, within 60 days of the date of this decision, to obtain a letter from his employer setting forth the value of his 401(k) account as of August 28, 2020 – which is the date the husband commenced this action. The husband was then directed, within 90 days of the date of receipt of this letter, to pay to the wife 50% of the amount set forth by the employer pursuant to the Majauskas formula
Real property that is separate property cannot be transformed or transmuted into marital property by the efforts and contributions of the nontitled spouse. Appreciation in the value of [that] separate property due to the contributions or efforts of the nontitled spouse will be considered marital property.
In George JJ., v. Shannon JJ., --- N.Y.S.3d ----, 2023 WL 306135, 2023 N.Y. Slip Op. 00256 (3d Dept.,2023) Plaintiff (husband) and defendant (wife) were married in 2012 and had four unemancipated children. In 2018, the husband commenced the divorce action. The wife joined issue and asserted a counterclaim alleging an irretrievable breakdown of the parties’ relationship (see Domestic Relations Law § 170[7]). Following a bench trial, Supreme Court issued a decision where it, among other things, granted the husband a financial interest in a property purchased by the wife before the marriage ( Hancock property) and in a certain number of livestock.
The Appellate Division held that Supreme Court erred in awarding the husband a financial interest in the Hancock property. Whether a particular asset is marital or separate property is a question of law that a trial court must initially address to ascertain the marital estate. Although a parcel of real property that is separate property cannot be transformed or transmuted into marital property by the efforts and contributions of the nontitled spouse any appreciation in the value of [that] separate property due to the contributions or efforts of the nontitled spouse will be considered marital property. The “nontitled spouse seeking an interest in the appreciation of separate property occurring during the marriage bears the burden of establishing that the increased value was due in part to his or her efforts as opposed to market forces or other unrelated factors. It was undisputed that the Hancock property was purchased by the wife prior to the marriage. Although the parties also purchased a mobile home for the property and the husband testified that he used his skill as a union carpenter to pour the foundation and place the electric, these events also occurred prior to the marriage and did not transmute the property into marital property. Even though Supreme Court credited the wife’s testimony that a market analysis valued the Hancock property at $49,000, the husband did not dispute the wife’s further testimony that they received an insurance policy on the Hancock property in the amount of $45,000 before the marriage – thereby resulting in a marginal increase in value over the span of the marriage. Despite that the husband offered testimony as to the renovations and general upkeep that he performed at the various other properties owned or managed by the parties during their marriage, he did not indicate what specific efforts he made on the Hancock property after the date of their marriage. Based on this record, the husband did not satisfy his burden of establishing that the value of the Hancock property increased due to his efforts, as opposed to market forces or other unrelated factors. Accordingly, it was an abuse of discretion to award the husband a financial interest in same (see Ceravolo v. DeSantis, 125 A.D.3d at 117, 1 N.Y.S.3d 468; Macaluso v. Macaluso, 124 A.D.3d at 961, 1 N.Y.S.3d 464).
The Appellate Division found that the record did not support Supreme Court’s valuation of livestock and, therefore, it was an abuse of discretion to award the husband a $40,000 distribution for the cows jointly owned by the parties. Neither party offered any evidence relating to the value of the cows.
The Appellate Division pointed out that although, when the record is sufficiently developed, this Court may, in the interest of judicial economy, make any adjustments necessary for the equitable distribution of the marital estate” absent a detailed record, the Court may remit the matter to Supreme Court for a new determination. Inasmuch as the husband was not entitled to any portion of the value of the Hancock property, and the Supreme Court’s distribution of that asset and of the livestock, both of which were significant assets in the marital estate, may have affected the court’s overall scheme of distribution, it remitted for Supreme Court to reconsider equitable distribution
Family Ct Act § 625(a) provides that if all parties consent the court may, dispense with the dispositional hearing in neglect proceeding. Family Court improperly dispensed with the dispositional hearing where no indication respondent affirmatively consented
In Matter of Harmony F., --- N.Y.S.3d ----, 2023 WL 305710, 2023 N.Y. Slip Op. 00259 (3d Dept.,2023) the Appellate Division found that petitioner clearly and convincingly established that the respondent had not sufficiently planned for the child’s future and had taken insufficient steps to correct the conditions that led to the child’s removal and, accordingly, that Family Court properly adjudicated the child as permanently neglected by the father. However, it agreed with respondent that Family Court improperly dispensed with the dispositional hearing under the circumstances presented. Family Ct Act § 625(a) expressly provides that, “[u]pon completion of [a] fact-finding hearing, [a] dispositional hearing may commence immediately after the required findings are made; provided, however, that if all parties consent the court may, upon motion of any party or upon its own motion, dispense with the dispositional hearing and make an order of disposition on the basis of competent evidence admitted at the fact-finding hearing”. Here, the court stated that there was no need for a further or separate dispositional hearing before rendering its determination that the respondent had permanently neglected the child and terminating his parental rights. However, there was no indication that the respondent affirmatively consented to dispense with the hearing, and, absent consent, the requirement of a dispositional hearing may not be circumvented. Even though the record provided adequate support for Family Court’s disposition, it remitted the matter for the court to conduct a dispositional hearing or to otherwise affirmatively gain the parties’ consent to dispense of the matter without one.
Petitioner failed to establish by clear and convincing evidence that respondent evinced an intent to forego his parental rights, where among other things, the caseworker provided incorrect information to the court.
In Matter of Syri’annah PP.--- N.Y.S.3d ----, 2023 WL 305694, 2023 N.Y. Slip Op. 00252 (3d Dept.,2023) the Appellate Division reversed an order which granted petitioner’s application, in a proceeding pursuant to Social Services Law § 384–b, to adjudicate the subject children to be abandoned, and terminated respondent’s parental rights. It found that petitioner failed to establish by clear and convincing evidence that respondent evinced an intent to forego his parental rights. The record demonstrated that respondent filed numerous motions to resume visitation, return his children, intervene in the neglect proceeding against the mother and terminate the children’s placement. During at least one appearance, respondent remarked that he would continue to “battle” for the return of his children, even prompting Family Court to candidly admit that respondent had been an active participant during the entire proceeding. Respondent had several visits with the children where he inquired if he could obtain their school records and asked what clothing or supplies they needed. The respondent made several inquiries to the caseworker and the mother, including during the delay caused by the pandemic. The record demonstrated that petitioner acted in a manner that has prevented or discouraged respondent’s ability to visit and communicate with the children. There were several troubling instances in the record where the caseworker or the coordinator cancelled respondent’s scheduled visitation with the children due to his late confirmation of the scheduled visit or arrival including one egregious incident where respondent was three minutes late to confirm an appointment for later that day. Respondent contended that his employment imposed inherent difficulties for him to confirm the appointments pursuant to the coordinator’s self-imposed deadline, including due to cell phone use restrictions at work and a lack of cellular service at the job site, but that the caseworker and the coordinator refused to consider his requests for additional time or accommodations to confirm the visits. The appellate AFC echoed this argument, adding that petitioner knew that respondent worked during the time he was required to confirm his visits but that the caseworker and the coordinator refused to accommodate his reasonable requests to extend the window he had to confirm the visits, which were scheduled to occur several hours later. Notwithstanding the fact that respondent cancelled one visit due to illness, attended five visits and had seven visits cancelled on him in the foregoing manner, the caseworker then reported to Family Court that respondent had only attended 4 out of 20 scheduled visits. Based on the incorrect information presented by the caseworker, who relied on text messages from the coordinator, who did not testify at the hearing, petitioner was successful in obtaining an order suspending respondent’s visitation with the children in December 2019, thereby making it more difficult for respondent to visit and communicate with the children.
January 16, 2023
Appellate Division, Third Department
Where May 2022 custody order did not indicate that the 2021 order was being superseded, vacated or that it relinquished the grandmother’s right to pursue a custody appeal, the grandmother’s appeal from the 2021 custody order was not moot
In the Matter of Linda UU.,v. Dana VV., 2023 WL 95177 (3d Dept.,2022) following a fact-finding hearing on all petitions, in 2021 Family Court found that the grandmother failed to establish the existence of extraordinary circumstances to supplant the mother’s right to custody of the child, and ordered the mother to have sole legal and residential custody of the child and awarded the grandmother visitation every other weekend. Family Court also determined that the grandmother failed to establish a family offense and failed to establish a willful violation of an order of protection or the custody order. While the grandmothers appeal was pending, Family Court issued a custody order in May 2022. The Appellate Division took judicial notice of the order. It disagreed with the mother that the 2022 order rendered the grandmother’s appeal moot. The 2022 order continued sole legal and residential custody of the child with the mother and modified the grandmother’s visitation. The May 2022 order did not indicate that the 2021 order was being superseded, vacated or that it relinquished the grandmother’s right to pursue a custody appeal. Accordingly, the grandmother’s appeal was not moot
Appellate Division, Fourth Department
A child in a custody proceeding is entitled to effective assistance of counsel which requires the AFC to take an active role in the proceeding. The child received ineffective assistance where the AFC made his client’s wish that there be a change in custody known to the court, but he did not “zealously advocate the child’s position.”
In Matter of Sloma v Saya, --- N.Y.S.3d ----, 210 A.D.3d 1494, 2022 WL 17075260, 2022 N.Y. Slip Op. 06587 (4th Dept.,2022) the Attorney for the Child (AFC) appealed from an order of the Family Court which determined at the conclusion of the father’s presentation of evidence at a trial that he failed to establish a change in circumstances and granted the mother’s motion to dismiss the father’s custody modification petition. The Appellate Division held that under the circumstances of this case, she had standing to appeal the order (see Matter of Newton v. McFarlane, 174 A.D.3d 67, 71-74, 103 N.Y.S.3d 445 [2d Dept. 2019]) and that the child received ineffective assistance of counsel. It reversed the order and remitted the matter for a new trial. The Appellate Division pointed out that Section 7.2 of the Rules of the Chief Judge provides that, in proceedings such as an article 6 custody proceeding where the child is the subject and an AFC has been appointed pursuant to Family Court Act § 249, the AFC “must zealously advocate the child’s position” (22 NYCRR 7.2 [d]). “[I]n ascertaining the child’s position, the [AFC] must consult with and advise the child to the extent of and in a manner consistent with the child’s capacities, and have a thorough knowledge of the child’s circumstances” (22 NYCRR 7.2[d] [1]). “[I]f the child is capable of knowing, voluntary and considered judgment, the [AFC] should be directed by the wishes of the child, even if the [AFC] believes that what the child wants is not in the child’s best interests” (22 NYCRR 7.2 [d] [2]). Moreover, a child in an article 6 custody proceeding is entitled to effective assistance of counsel which requires the AFC to take an active role in the proceeding. Here, the AFC at trial made his client’s wish that there be a change in custody known to the court, but he did not “zealously advocate the child’s position.” He did not cross-examine the mother, the police officers, or the school social worker called by the father. It agreed with the AFC on appeal that the trial AFC’s cross-examination of the father was designed to elicit unfavorable testimony related to the father, thus undermining the child’s position. His questioning also seemed designed to show that there was no change in circumstances since the entry of the last order. Further, he submitted an email to the court in response to the mother’s motion to dismiss in which he stated his opinion that there had been no change in circumstances, which again went against his client’s wishes. While the AFC’s actions may have been the result of good intentions, he did not “zealously advocate the child’s position” (22 NYCRR 7.2 [d]), and the child was denied effective assistance of counsel.
Family Court
For a petition for an order and judgment of parentage to be granted when there is a case involving assisted reproduction and the parties are not married, the consent to the assisted reproduction must be in a record in such a manner as to indicate the mutual agreement of the intended parents to conceive and parent a child together
In A.B., v. M.S., 2022 WL 18141596 (Fam. Ct., 2022), M.S. sought an Order and Judgment of Parentage (Assisted Reproduction) for a baby being carried by A.B., due to be born on or about May 28, 2022. The parties appeared before a Support Magistrate on April 22, 2022. On that date, Ms. S. was unrepresented, and Ms. B. appeared with her attorney. The Support Magistrate adjourned the matter and appointed counsel to Ms. S., and parties and counsel appeared on April 29, 2022. On that date, Ms. B. indicated that she was not consenting to an order of parentage, but that she was waiving her right to a hearing and consenting to the Support Magistrate deciding the matter based upon the papers that had been filed. The Support Magistrate entered an Order and Judgment of Parentage (Assisted Reproduction), holding that “upon the child’s birth, A.B. and M.S. will be the legal parents of the child who is expected to be born on May 31, 2022, and upon the birth of such child, they shall forthwith assume responsibility for the child’s maintenance and support”. A.B. objected to the entry of the Order and Judgment of Parentage (Assisted Reproduction), asserting the Support “Magistrate have conducted a fact-finding to fully flesh out the record.” The Objection was denied. Family Court found that Ms. B. made an informed decision to waive her right to a hearing. It observed that the “Child Parent Security Act”, set forth at Article 5-C of the Family Court, is intended to “legally establish a child’s relationship to his or her parents where the child is conceived through assisted reproduction” (Family Court Act Section 581-101). In order for a petition for an order and judgment of parentage to be granted when there is a case involving assisted reproduction and the parties are not married, “the consent to the assisted reproduction must be in a record in such a manner as to indicate the mutual agreement of the intended parents to conceive and parent a child together.” (Family Court Act Section 581-304(b)). Attached to the petition in this matter was an “Intrauterine Insemination Consent Form” where A.B. was listed as the “patient” and M.S. was listed as the “partner.” Both Ms. B. and Ms. S. placed their initials in several locations throughout the document in spaces calling for the initials of both the “patient” and the “partner.” Paragraph 7 of the form read as follows: “Responsibility of Offspring. I/We understand that, if a woman undergoes intrauterine insemination with the consent of her husband/partner, the husband/partner is treated in law as if he were the natural father of a child thereby conceived. I/We further agree a) That any child or children conceived or born as a result of the intrauterine insemination shall be my/our legitimate child and heirs of my/our body; and b) That such child or children conceived or both shall be considered in all respects including descent and distribution of my property, a child or children or my/our body(ies).” Both parties signed the form. The Support Magistrate made it clear to both parties on April 29, 2022, that he considered the language in the form as sufficient to establish the mutual agreement, intent and consent required to enter an order of judgment and parentage. The Support Magistrate stated unequivocally to Ms. B. that “If you waive that right to a hearing, based on the evidence presented to me, the documents presented to me, I will make an order of parentage.” By waiving her right to present evidence to the contrary, Ms. B. lost the ability to claim, after the fact, that the form failed to establish the requisite mutual consent and intent. The court refused to consider any factual arguments set forth in either the objection or the rebuttal as the time to make such arguments would have been at a hearing. However, the right to a hearing was waived.
January 1, 2023
Appellate Division, Second Department
Supreme Court should have denied the defendant’s motion to resettle the judgment of divorce where the amendment proposed by the defendant was a substantive modification beyond the court’s inherent authority to correct a mistake, defect, or irregularity in the original judgment “not affecting a substantial right of a party” (CPLR 5019[a]).
In Ferrigan v Ferrigan, --- N.Y.S.3d ----, 2022 WL 17660436, 2022 N.Y. Slip Op. 07058 (2d Dept.,2022) the parties were married in March 1996. Their judgment of divorced entered August 12, 2003 included a stipulation of settlement dated February 27, 2003 which was incorporated but not merged into the judgment. In August 2018, the defendant moved, inter alia, pursuant to CPLR 5019(a) to resettle the judgment of divorce on the ground that a provision in the judgment of divorce requiring him to provide health insurance for the parties’ children was inconsistent with the provision in the stipulation which provided that the plaintiff would provide health insurance for the children through her employer, but if she were unemployed, the defendant would do so through his employer. In an order dated April 1, 2019, the Supreme Court, inter alia, granted the defendant’s motion so as to replace the provision requiring the defendant to provide health insurance for the parties’ children with a provision requiring the plaintiff to provide health insurance for the parties’ children..
The Appellate Division modified. It held that the defense of laches is not a basis to preclude the resettlement of the judgment of divorce as the plaintiff failed to show that she was prejudiced by the defendant’s delay in seeking to correct the error. Since the plaintiff failed to show a change in circumstances making it inequitable to grant the requested relief, t]he mere lapse of time without a showing of prejudice will not sustain a defense of laches. Resettlement of a judgment of divorce pursuant to CPLR 5019(a) is an appropriate remedy when the judgment does not accurately incorporate the terms of a stipulation of settlement. Although the judgment of divorce provided that the defendant was responsible for providing health insurance for the parties’ children, that provision was inconsistent with the terms of the stipulation which contained a provision which set forth that the plaintiff was responsible for providing health insurance for the parties’ children through her employer unless she became unemployed, and then the defendant would be responsible for providing health insurance for them through his employer. Supreme Court properly granted defendant’s motion to resettle the judgment of divorce to the extent that it was inconsistent with the stipulation. However, the Supreme Court should have denied the defendant’s motion to resettle the judgment of divorce to the extent it sought to replace the provision requiring the defendant to provide health insurance for the parties’ children with a provision requiring the plaintiff to be solely responsible to provide health insurance for the parties’ children. The amendment proposed by the defendant failed to comport with the terms of the stipulation regarding the responsibility of the parties as to the health insurance for their children and was a substantive modification beyond the court’s inherent authority to correct a mistake, defect, or irregularity in the original judgment “not affecting a substantial right of a party” (CPLR 5019[a]).
Appellate Division, Third Department
Argument that his change in residence constituted a change in circumstances was unpreserved for appellate review “absent a motion to conform the pleadings to the proof”
In Matter of Anthony JJ, v Angelin JJ, --- N.Y.S.3d ----, 2022 WL 17835304 (3d Dept.,2022) Family Court dismissed the father’s custody modification petition, finding that the father had failed to demonstrate a change in circumstances warranting a best interests analysis. The Appellate Division affirmed. It held that the required change in circumstances may be found to exist where the parties’ relationship has deteriorated to a point where there is no meaningful communication or cooperation for the sake of the children. Here, the record as a whole reflected a level of hostility and mutual distrust between the parties that demonstrated that the parties were incapable of working together in a cooperative fashion for the good of their children. However, as Family Court found, this hostility and failure to cooperate existed at the time of the prior order – serving as the basis, at least in part, for awarding the mother sole legal and primary physical custody of the children, and was therefore not a new development. The father’s argument that his change in residence constituted a change in circumstances was unpreserved for appellate review “absent a motion to conform the pleadings to the proof” before Family Court.
Condition in dispositional neglect order requiring Respondent to “maintain and provide documentation of legal income source(s) sufficient to support the child” did not violate her constitutional rights where Respondent admitted to engaging in illegal prostitution and testified as to a desire to no longer earn money this way
In Matter of Y. SS.,--- N.Y.S.3d ----, 2022 WL 17835259(3d Dept.,2022) after a hearing Family Court issued a decision finding the subject child to be a neglected child. A dispositional hearing was held, after which Family Court issued a dispositional order indicating that respondent has yet to achieve any insight that she engaged in any wrongful and neglectful behavior and ordering that the subject child remain in petitioner’s custody. The Appellate Division affirmed. It was established that respondent had a friend with whom she sometimes performed sexual services for money. At some point, in text messages, the friend began asking for things involving the subject child. Respondent testified that she “knew he wanted something with my daughter, but he wasn’t getting it.” On one occasion, respondent sent a naked photograph of the subject child to the friend. On another occasion, during a telephone call with the friend, respondent offered to perform oral sex on him while allowing him to look at the subject child naked while she slept. In text messages, respondent provided her address to the friend. The Appellate Division held that the willingness of respondent to involve the subject child in the performance of her sexual services for money put the subject child’s physical, emotional and mental health in imminent danger and we cannot say that “a reasonable and prudent parent [would] have so acted ... under the circumstances” (Nicholson v. Scoppetta, 3 N.Y.3d 357, 370, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004]). Although respondent testified that she took the photograph to send to the child’s doctor, Family Court found respondent’s testimony incredible. Family Court properly adjudicated the subject child to be neglected. The Appellate Division rejected Respondents argument that some of the conditions of Family Court’s dispositional order were unconstitutional. Respondent challenged the condition that she “maintain and provide documentation of legal income source(s) sufficient to support the child.” Respondent admitted to engaging in illegal prostitution and testified as to a desire to no longer earn money this way. It was unclear how this condition, which encouraged her not to engage in prostitution as a means of income, violated her constitutional rights. Respondent also challenged the condition that she “acknowledge and demonstrate an understanding of her role in the neglect of the subject child ..., specifically how her prostitution and involvement of [the subject child] in that prostitution as sexual bait for a pedophile harmed [the subject child] and placed [her] at risk of further harm.” Contrary to respondent’s argument, this condition did not require her to admit to a finding of neglect, but rather that she recognize and understand how involving the subject child in her prostitution put the child at risk. A demonstration of understanding would decrease the chance of such behavior recurring. It did not find that this condition implicated respondent’s right to due process of law.
Appellate Division, Fourth Department
Although the burden of proof in a Neglect proceeding rests with the petitioner, once the petitioner has established a prima facie case, the burden of going forward shifts to respondents to rebut the evidence of parental culpability.
In Matter of Mea V, 210 A.D.3d 1408 (4th Dept, 2022) a neglect proceeding, the Appellate Division observed that a prima facie case of child abuse or neglect may be established by evidence that a child sustained an injury that would ordinarily not occur absent an act or omission of respondents and that respondents were the caretakers of the child at the time the injury occurred (Family Ct Act § 1046 [a] [ii]; Matter of Philip M., 82 N.Y.2d 238, 243, 604 N.Y.S.2d 40 [1993]). Although the burden of proof rests with the petitioner, once the petitioner “has established a prima facie case, the burden of going forward shifts to respondents to rebut the evidence of parental culpability. To rebut the presumption of parental culpability, the respondents may present evidence to (1) establish that during the time period when the child was injured, the child was not in respondents care; (2) demonstrate that the injury or condition could reasonably have occurred accidentally, without the acts or omission of respondents; or (3) counter the evidence that the child had the condition which was the basis for the finding of injury . In determining whether to rely on the presumption, the court should consider such factors as the strength of the prima facie case and the credibility of the witnesses testifying in support of it, the nature of the injury, the age of the child, relevant medical or scientific evidence and the reasonableness of the caretakers explanation in light of all the circumstances. The Appellate Division rejected respondents contention that, inter alia, they rebutted the presumption of parental culpability by providing a reasonable explanation for how the child’s injuries could have occurred without any act or omission on their part. Respondents originally claimed to the pediatrician and the Child Protective Services caseworker that the child’s injuries, which included 28 rib fractures and an injured lung, were accidental, but none of the medical evidence supported that claim. It concluded that Family Court properly rejected respondents’ subsequent claim at trial that the injuries were due to an underlying medical condition: the testimony of respondents’ expert witnesses was incredible and their conclusions were not consistent with the other evidence.
Family Court
Where, no other State could properly assume custody jurisdiction it was appropriate for New York to assume “vacuum jurisdiction”
In Olaide O v Oluseun O, 2022 WL 17727139 (unreported disposition) (Fam Ct, 2022) the child F. had resided in Nigeria with relatives for his entire life. During the custody hearing, Ms. O., who resided in New York testified that she and her husband had resided in Nigeria and that Mr. O. left Nigeria in 2016 with the intention that she and the children would follow as soon as possible. Based on testimony presented at the hearing, the Court found that Ms. O. never consented to the child’s permanent residence in Nigeria, that the relatives caring for the child in Nigeria were not persons acting as a parent and that it was the intention of both parties to bring the child to the United States. Therefore, the Court held that: “Here, no other State can properly assume jurisdiction. Nor can jurisdiction properly lie in Nigeria when both parents, who have a superior right to custody, reside in New York. Additionally, the Children who reside here in NY have rights to visit with their sibling that cannot be effectuated without the court assuming jurisdiction. Therefore, it was appropriate for New York to assume “vacuum jurisdiction” in this case. Nusrat C. v. Muhammed R., 67 AD3d 419 (1st Dept 2009) (finding that subject matter jurisdiction existed under both DRL § 70 (a) and DRL 76(1)(d) even though the child lived abroad, because both parents lived in the state and were personally before the court). Pursuant to DRL 76(1)(d), this Court has jurisdiction over the child F. O.”
Domestic Relations Law § 240, subd.1 (a-3). Appointment of a child custody forensic evaluator on behalf of the court.
Domestic Relations Law § 240, subd.1 was amended to add subdivision (a-3) which provides that the court may appoint a child custody forensic evaluator on behalf of the court to evaluate and investigate the parties and a child or children in a proceeding involving child custody and visitation, provided the individual is a psychologist, social worker or psychiatrist who is licensed in the state of New York and has undergone the required biennial domestic violence-related training and has received within the last two years, a certification of completion for completing the training program pursuant to Executive Law § 575, subdivision 3 (O). No individual may be appointed by a court to conduct a forensic evaluation in a proceeding involving child custody and visitation pursuant to this paragraph unless the individual has received within the last two years, a certification of completion for completing the training program pursuant to Executive Law § 575 subdivision 3 (O).
Laws of 2022, Chapter 740, § 1 enacted on December 23, 2022 amended Domestic Relations Law § 240 Subdivision 1 by adding a new paragraph (a-3), effective as provided in § 4 on the 180th day after it shall have become a law (June 25, 2023). It provides as follows:
(a-3) Court ordered forensic evaluations involving child custody and
visitation. (1) The court may appoint a forensic evaluator on behalf of
the court to evaluate and investigate the parties and a child or chil-
dren in a proceeding involving child custody and visitation provided
that the child custody forensic evaluator is a psychologist, social
worker or psychiatrist who is licensed in the state of New York and has
received within the last two years, a certification of completion for
completing the training program pursuant to paragraph (o) of subdivision
three of section five hundred seventy-five of the executive law.
(2) Notwithstanding any provision of law to the contrary, no individ-
ual shall be appointed by a court to conduct a forensic evaluation in a
proceeding involving child custody and visitation pursuant to this para-
graph unless such individual has received within the last two years, a
certification of completion for completing the training program pursuant
to paragraph (o) of subdivision three of section five hundred seventy-
five of the executive law.
(3) A psychologist, social worker or psychiatrist authorized to
conduct court ordered child custody forensic evaluations pursuant to
this section shall notify the court in which such individual requests to
be considered for such court ordered evaluations. Any psychologist,
social worker or psychiatrist who no longer meets the requirements of
this section in regards to completing within the last two years the
training program pursuant to paragraph (o) of subdivision three of
section five hundred seventy-five of the executive law shall be obli-
gated to inform such courts within seventy-two hours of noncompliance so
as to be removed from consideration for court ordered evaluations.
(4) Upon appointment, the court shall require such child custody
forensic evaluator to show proof of certification for completing within
the last two years the training program pursuant to paragraph (o) of
subdivision three of section five hundred seventy-five of the executive
law.
Laws of 2022, Ch 798, effective March 29, 2023 amended Domestic Relations Law, §11, Subd.1, 1-a, 2 and 3-a, 12, 13 and 13-b. One-day marriage officiants
The Domestic Relations Law was amended to allow individuals to be designated as one-day marriage officiants in order to solemnize marriages. The Executive Law was amended by adding Executive Law §110 that outlines the requirements that must be met to designate a lay person as a one-day marriage officiant.
Domestic Relations Law, §11, Subd.1, 1-a, 2 and 3-a was amended on December 28, 2022 by Laws of 2022, Ch 798, §1, effective March 29, 2023 to read as follows:
1. A clergyman or minister of any religion, or by the senior leader,
or any of the other leaders, of The Society for Ethical Culture in the
city of New York, having its principal office in the borough of Manhat-
tan, or by the leader of The Brooklyn Society for Ethical Culture,
having its principal office in the borough of Brooklyn of the city of
New York, or of the Westchester Ethical Society, having its principal
office in Westchester county, or of the Ethical Culture Society of Long
Island, having its principal office in Nassau county, or of the River-
dale-Yonkers Ethical Society having its principal office in Bronx coun-
ty, or by the leader of any other Ethical Culture Society affiliated
with the American Ethical Union; provided that no clergyman or minister
as defined in section two of the religious corporations law, or Society
for Ethical Culture leader shall be required to solemnize any marriage
when acting in his or her capacity under this subdivision. [1-a.] A
refusal by a clergyman or minister as defined in section two of the
religious corporations law, or Society for Ethical Culture leader to
solemnize any marriage under this subdivision shall not create a civil
claim or cause of action or result in any state or local government
action to penalize, withhold benefits or discriminate against such cler-
gyman or minister[.]; or,
2. The current or a former governor, a mayor of a village, a county
executive of a county, or a mayor, recorder, city magistrate, police
justice or police magistrate of a city, a former mayor or the city clerk
of a city of the first class of over one million inhabitants or any of
his or her deputies or not more than four regular clerks, designated by
him or her for such purpose as provided in section eleven-a of this
article, except that in cities which contain more than one hundred thou-
sand and less than one million inhabitants, a marriage shall be solem-
nized by the mayor, or police justice, and by no other officer of such
city, except as provided in subdivisions one and three of this
section[.]; or,
3-a. A judge or peacemaker judge of any Indian tribal court, a chief,
a headman, or any member of any tribal council or other governing body
of any nation, tribe or band of Indians in this state duly designated by
such body for the purpose of officiating at marriages, or any other
persons duly designated by such body, in keeping with the culture and
traditions of any such nation, tribe or band of Indians in this state,
to officiate at marriages[.]; or,
3-b. A one-day marriage officiant, as designated by the secretary of
state pursuant to section one hundred ten of the executive law; or,
Matter in italics is new; matter in brackets [ ] is old law to be omitted.
Domestic Relations Law, §12 was amended on December 28, 2022 by Laws of 2022, Ch 798, §2, effective March 29, 2023 to read as follows:
§ 12. Marriage, how solemnized. No particular form or ceremony is
required when a marriage is solemnized as herein provided by a clergyman
[or], magistrate, or one-day marriage officiant as designated by the
secretary of state pursuant to section one hundred ten of the executive
law but the parties must solemnly declare in the presence of a clergyman
[or], magistrate, or one-day marriage officiant and the attending
witness or witnesses that they take each other as [husband and wife]
spouses. In every case, at least one witness beside the clergyman [or],
magistrate, or one-day marriage officiant must be present at the ceremo-
ny.
The preceding provisions of this chapter, so far as they relate to the
manner of solemnizing marriages, shall not affect marriages among the
people called friends or quakers; nor marriages among the people of any
other denominations having as such any particular mode of solemnizing
marriages; but such marriages must be solemnized in the manner hereto-
fore used and practiced in their respective societies or denominations,
and marriages so solemnized shall be as valid as if this article had not
been enacted.
Matter in italics is new; matter in brackets [ ] is old law to be omitted.
Domestic Relations Law, §13 was amended on December 28, 2022 by Laws of 2022, Ch 798, §3, effective March 29, 2023 to read as follows:
§ 13. Marriage licenses. It shall be necessary for all persons
intended to be married in New York state to obtain a marriage license
from a town or city clerk in New York state and to deliver said license,
within sixty days, to the clergyman [or], magistrate, or one-day
marriage officiant as designated by the secretary of state pursuant to
section one hundred ten of the executive law who is to officiate before
the marriage ceremony may be performed. In case of a marriage contracted
pursuant to subdivision four of section eleven of this chapter, such
license shall be delivered to the judge of the court of record before
whom the acknowledgment is to be taken. If either party to the marriage
resides upon an island located not less than twenty-five miles from the
office or residence of the town clerk of the town of which such island
is a part, and if such office or residence is not on such island such
license may be obtained from any justice of the peace residing on such
island, and such justice, in respect to powers and duties relating to
marriage licenses, shall be subject to the provisions of this article
governing town clerks and shall file all statements or affidavits
received by him while acting under the provisions of this section with
the town clerk of such town. No application for a marriage license shall
be denied on the ground that the parties are of the same, or a differ-
ent, sex.
Matter in italics is new; matter in brackets [ ] is old law to be omitted.
Domestic Relations Law, §13-b was amended on December 28, 2022 by Laws of 2022, Ch 798, §4, effective March 29, 2023 to read as follows:
§ 13-b. Time within which marriage may be solemnized. A marriage shall
not be solemnized within twenty-four hours after the issuance of the
marriage license, unless authorized by an order of a court of record as
hereinafter provided, nor shall it be solemnized after sixty days from
the date of the issuance of the marriage license unless authorized
pursuant to section three hundred fifty-four-d of the executive law.
Every license to marry hereafter issued by a town or city clerk, in
addition to other requirements specified by this chapter, must contain a
statement of the day and the hour the license is issued and the period
during which the marriage may be solemnized. It shall be the duty of the
clergyman [or], magistrate, or one-day marriage officiant, as designated
by the secretary of state pursuant to section one hundred ten of the
executive law, performing the marriage ceremony, or if the marriage is
solemnized by written contract, of the judge before whom the contract is
acknowledged, to annex to or endorse upon the marriage license the date
and hour the marriage is solemnized. A judge or justice of the supreme
court of this state or the county judge of the county in which either
party to be married resides, or the judge of the family court of such
county, if it shall appear from an examination of the license and any
other proofs submitted by the parties that one of the parties is in
danger of imminent death, or by reason of other emergency public inter-
est will be promoted thereby, or that such delay will work irreparable
injury or great hardship upon the contracting parties, or one of them,
may, make an order authorizing the immediate solemnization of the
marriage and upon filing such order with the clergyman [or], magistrate,
or one-day marriage officiant performing the marriage ceremony, or if
the marriage is to be solemnized by written contract, with the judge
before whom the contract is acknowledged, such clergyman [or], magis-
trate or one-day marriage officiant may solemnize such marriage, or such
judge may take such acknowledgment as the case may be, without waiting
for such three day period and twenty-four hour period to elapse. The
clergyman, magistrate [or], judge, or one-day marriage officiant, as
designated by the secretary of state pursuant to section one hundred ten
of the executive law, must file such order with the town or city clerk
who issued the license within five days after the marriage is solem-
nized. Such town or city clerk must record and index the order in the
book required to be kept by him or her for recording affidavits, state-
ments, consents and licenses, and when so recorded the order shall
become a public record and available in any prosecution under this
section. A person who shall solemnize a marriage in violation of this
section shall be guilty of a misdemeanor and upon conviction thereof
shall be punished by a fine of fifty dollars for each offense, and in
addition thereto, his or her right to solemnize a marriage shall be
suspended for ninety days.
Matter in italics is new; matter in brackets [ ] is old law to be omitted.
Executive Law was amended on December 28, 2022 by Laws of 2022, Ch 798, §5, effective March 29, 2023 to add a new section 110 to read as follows:
§ 110. Designation of one-day marriage officiant. The secretary, or
his or her designee, shall issue one-day marriage officiant designations
to laypersons over the age of eighteen regardless of state residence who
intend to perform a marriage solemnization ceremony within the state.
Such designations shall only be issued after an applicant remits a
completed application form and fee, both to be determined by the secre-
tary. The application form shall require the following information and
be accompanied by legal proof of identification. From the applicant
requesting designation: applicant name, date of birth, legal address,
email address and telephone number. The application form shall also
require the names, addresses and birth dates of the parties to be
married as they appear on the application for a marriage license issued
by a town or city clerk in the state, the name of the city, town or
village in which such solemnization will be performed and the exact date
of the solemnization. The application and fee must be received by the
department at least thirty days before the date of the ceremony. The
department shall notify the applicant of approval of such designation no
later than seven days prior to the date of the marriage ceremony stated
on the application. Such designations shall only be valid for the cere-
mony stated on the application and shall expire upon completion of such
solemnization.
Matter in italics is new; matter in brackets [ ] is old law to be omitted.
Domestic Relations Law and the Social Services Law Amendments
The Domestic Relations Law and the Social Services Law were amended effective December30, 2022 to give full parental rights in adoption, surrender, and termination of parental rights proceedings to fathers of children in foster care who have been adjudicated or are in the process of being adjudicated a parent, have executed an unrevoked acknowledgement of parentage, or have filed an unrevoked notice of intent to claim parentage.
Adoption
The requirement of notice of adoption proceedings to fathers of children in foster care who do not have full parental rights has been rescinded and relevant provisions of the Social Services Law and the Domestic Relations Law have been modified to make them consistent with the modifications.
In New York an adoption may take place in either of two ways. An adoption may be by means of a private transaction between individuals, which is referred to as a “private-placement” adoption. In a private placement adoption, the biological parents have voluntarily given up their parental rights and have placed the child with the agency for adoption. The adoption agency will place the child with prospective adoptive parents.
In New York an adoption may also be arranged between an agency set up for the care, custody, and placement of children and prospective adoptive parents, which is referred to as an “authorized agency adoption.” “Authorized agency adoptions are adoptions of children who are already in the care of the state through a foster care agency or a private adoption agency. In a foster care adoption, when a child is in the care of the state and living with foster parents, the agency will usually file a petition to terminate the parental rights of the child's parents so that the child can be adopted. In authorized-agency adoptions, all preliminary procedures up to the petition for adoption are governed by the Social Services Law. Any adoption that is not an agency adoption is a private placement adoption
Consent to an adoption in an agency adoption,
In an agency adoption, the foster care agency or the private adoption agency consents to the adoption of the child in its care and guardianship. If the child is 14 years old or older, the child must also consent to the adoption.
Under the Domestic Relations Law, in cases of " agency adoptions, only certain fathers have the right to consent to or prevent the adoption of their child.
The only fathers who have "consent" rights if the child was placed for adoption at over six months of age are:
(1) those fathers who were married to the child's mother at the time of the child's birth;
(2) those fathers of a child born out of wedlock who have maintained substantial and continuous or repeated contact with the child as manifested by:
(i) the payment by the father toward the support of the child of a fair and reasonable sum, according to the father's means, and either
(ii) the father's visiting the child at least monthly when physically and financially able to do so and not prevented from doing so by the person or authorized agency having lawful custody of the child, or
(iii) the father's regular communication with the child or with the person or agency having the care or custody of the child, when physically and financially unable to visit the child or prevented from doing so by the person or authorized agency having lawful custody of the child.
(3) Those fathers of a child born out-of-wedlock, who openly lived with the child for a period of 6 months within the 1 year period immediately preceding the placement of the child for adoption and who during that period openly held himself out to be the father of the child.
Laws of 2022, Ch 798 broadens the definition of "consent" fathers in cases of agency adoptions, so that fathers who have been legally adjudicated to be the parent of the child or have timely executed a formal acknowledgment of parentage have full parental rights.
This law does not affect "private-placement" adoptions. It applies only to adoptions that occur after a child has been involuntarily separated from their family by the state, and the state seeks to sever the parent-child relationship for an unmarried father. The state will still be able to terminate such an unmarried father's parental rights in appropriate cases on the grounds of abandonment, permanent neglect, mental illness, intellectual disability, and severe and repeated abuse, just as it would in the case of a mother or married father who failed to meet those obligations. The local child protective agencies will similarly still have the ability to seek child support from the parents of children in foster care, if they choose to do so. This legislation simply alters the potential consequence of an unmarried father's failure to comply with his obligation to pay support to a third party agency, so that his continued relation-ship to his child does not hinge on such payment alone.
Domestic Relations Law, §111, subd. 1 (d), (e), and (f) were amended by Laws of 2022, Ch 828, §1, effective December 30, 2022 to read as follows:
(d) Of any person or authorized agency having lawful custody or guar-
7 dianship of the adoptive child;
8 (e) In the case of the adoption of a child transferred to the custody
9 and guardianship of an authorized agency, foster parent, or relative
10 pursuant to section three hundred eighty-four-b of the social services
11 law or a child transferred to the custody and guardianship of an author-
12 ized agency pursuant to section three hundred eighty-three-c of the
13 social services law:
14 (i) Of any person adjudicated by a court of this state or a court of
15 any other state or territory of the United States to be the father of
16 the child prior to the filing of a petition to terminate parental rights
17 to the child pursuant to section three hundred eighty-four-b of the
18 social services law, an application to execute a judicial surrender of
19 rights to the child pursuant to subdivision three of section three
20 hundred eighty-three-c of the social services law, or an application for
21 approval of an extra-judicial surrender pursuant to subdivision four of
22 section three hundred eighty-three-c of the social services law;
1 (ii) Of any person who filed a petition in a court in this state seek-
2 ing to be adjudicated the father of the child prior to the filing of a
3 petition to terminate parental rights to the child pursuant to section
4 three hundred eighty-four-b of the social services law, an application
5 to execute a judicial surrender of rights to the child pursuant to
6 subdivision three of section three hundred eighty-three-c of the social
7 services law, or an application for approval of an extra-judicial
8 surrender pursuant to subdivision four of section three hundred eighty-
9 three-c of the social services law, provided that the parentage petition
10 has been resolved in the petitioner's favor or remains pending at the
11 conclusion of the proceedings pursuant to section three hundred eighty-
12 four-b, three hundred eighty-three-c, or three hundred eighty-four of
13 the social services law;
14 (iii) Of any person who has executed an acknowledgment of parentage
15 pursuant to section one hundred eleven-k of the social services law,
16 section five hundred sixteen-a of the family court act, or section
17 forty-one hundred thirty-five-b of the public health law prior to the
18 filing of a petition to terminate parental rights to the child pursuant
19 to section three hundred eighty-four-b of the social services law, an
20 application to execute a judicial surrender of rights to the child
21 pursuant to subdivision three of section three hundred eighty-three-c of
22 the social services law, or an application for approval of an extra-ju-
23 dicial surrender pursuant to subdivision four of section three hundred
24 eighty-three-c of the social services law, provided that such acknowl-
25 edgement has not been vacated;
26 (iv) Of any person who filed an unrevoked notice of intent to claim
27 parentage of the child pursuant to section three hundred seventy-two-c
28 of the social services law prior to the filing of a petition to termi-
29 nate parental rights to the child pursuant to section three hundred
30 eighty-four-b of the social services law, an application to execute a
31 judicial surrender of rights to the child pursuant to subdivision three
32 of section three hundred eighty-three-c of the social services law, or
33 an application for approval of an extra-judicial surrender pursuant to
34 subdivision four of section three hundred eighty-three-c of the social
35 services law;
36 (f) In any other adoption proceeding:
37 (i) Of the father, whether adult or infant, of a child born out-of-
38 wedlock and placed with the adoptive parents more than six months after
39 birth, but only if such father shall have maintained substantial and
40 continuous or repeated contact with the child as manifested by: [(i)]
41 (A) the payment by the father toward the support of the child of a fair
42 and reasonable sum, according to the father's means, and either [(ii)]
43 (B) the father's visiting the child at least monthly when physically and
44 financially able to do so and not prevented from doing so by the person
45 or authorized agency having lawful custody of the child, or [(iii)] (C)
46 the father's regular communication with the child or with the person or
47 agency having the care or custody of the child, when physically and
48 financially unable to visit the child or prevented from doing so by the
49 person or authorized agency having lawful custody of the child. The
50 subjective intent of the father, whether expressed or otherwise, unsup-
51 ported by evidence of acts specified in this paragraph manifesting such
52 intent, shall not preclude a determination that the father failed to
53 maintain substantial and continuous or repeated contact with the child.
54 In making such a determination, the court shall not require a showing of
55 diligent efforts by any person or agency to encourage the father to
56 perform the acts specified in this paragraph. A father, whether adult or
1 infant, of a child born out-of-wedlock, who openly lived with the child
2 for a period of six months within the one year period immediately
3 preceding the placement of the child for adoption and who during such
4 period openly held himself out to be the father of such child shall be
5 deemed to have maintained substantial and continuous contact with the
6 child for the purpose of this subdivision[.];
7 [(e)] (ii) Of the father, whether adult or infant, of a child born
8 out-of-wedlock who is under the age of six months at the time he is
9 placed for adoption, but only if: [(i)] (A) such father openly lived
10 with the child or the child's mother for a continuous period of six
11 months immediately preceding the placement of the child for adoption;
12 and [(ii)] (B) such father openly held himself out to be the father of
13 such child during such period; and [(iii)] (C) such father paid a fair
14 and reasonable sum, in accordance with his means, for the medical,
15 hospital and nursing expenses incurred in connection with the mother's
16 pregnancy or with the birth of the child.
17 [(f) Of any person or authorized agency having lawful custody of the
18 adoptive child.]
Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted.
Domestic Relations Law, §111-a, subd. 1 was amended by Laws of 2022, Ch 828, §2, effective December 30, 2022 to read as follows:
22 1. Notwithstanding any inconsistent provisions of this or any other
23 law, and in addition to the notice requirements of any law pertaining to
24 persons other than those specified in subdivision two of this section,
25 notice as provided herein shall be given to the persons specified in
26 subdivision two of this section of any adoption proceeding initiated
27 pursuant to this article or of any proceeding initiated pursuant to
28 section one hundred fifteen-b of this article relating to the revocation
29 of an adoption consent, when such proceeding involves a child born out-
30 of-wedlock provided, however, that such notice shall not be required to
31 be given [to any person who previously has been given notice of any
32 proceeding involving the child, pursuant to section three hundred eight-
33 y-four-c of the social services law, and provided further that notice in
34 an adoption proceeding, pursuant to this section shall not be required
35 to be given]: (a) in the case of the adoption of a child transferred to
36 the custody and guardianship of an authorized agency, foster parent, or
37 relative pursuant to section three hundred eighty-four-b of the social
38 services law or a child transferred to the custody and guardianship of
39 an authorized agency pursuant to section three hundred eighty-three-c of
40 the social services law; or (b) to any person who has previously
41 received notice of any proceeding pursuant to section one hundred
42 fifteen-b of this article. In addition to such other requirements as may
43 be applicable to the petition in any proceeding in which notice must be
44 given pursuant to this section, the petition shall set forth the names
45 and last known addresses of all persons required to be given notice of
46 the proceeding, pursuant to this section, and there shall be shown by
47 the petition or by affidavit or other proof satisfactory to the court
48 that there are no persons other than those set forth in the petition who
49 are entitled to notice. For the purpose of determining persons entitled
50 to notice of adoption proceedings initiated pursuant to this article,
51 persons specified in subdivision two of this section shall not include
52 any person who has been convicted of one or more of the following sexual
53 offenses in this state or convicted of one or more offenses in another
54 jurisdiction which, if committed in this state, would constitute one or
55 more of the following offenses, when the child who is the subject of the
56 proceeding was conceived as a result: (A) rape in first or second
1 degree; (B) course of sexual conduct against a child in the first
2 degree; (C) predatory sexual assault; or (D) predatory sexual assault
3 against a child.
Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted.
Social Services Law §383-c, subd. 4, (b) was amended by Laws of 2022, Ch 828, §3, effective December 30, 2022 to read as follows:
7 (b) Before a judge or surrogate approves a judicial surrender, the
8 judge or surrogate [shall] may order that notice of the surrender
9 proceeding be given to [persons identified in subdivision two of section
10 three hundred eighty-four-c of this title and to] such [other] persons
11 as the judge or surrogate may, in his or her discretion, prescribe. At
12 the time that a parent appears before a judge or surrogate to execute
13 and acknowledge a surrender, the judge or surrogate shall inform such
14 parent of the right to be represented by legal counsel of the parent's
15 own choosing and of the right to obtain supportive counseling and of any
16 right to have counsel assigned pursuant to section two hundred sixty-two
17 of the family court act, section four hundred seven of the surrogate's
18 court procedure act, or section thirty-five of the judiciary law. The
19 judge or surrogate also shall inform the parent of the consequences of
20 such surrender, including informing such parent that the parent is
21 giving up all rights to have custody, visit with, speak with, write to
22 or learn about the child, forever, unless the parties have agreed to
23 different terms pursuant to subdivision two of this section, or, if the
24 parent registers with the adoption information register, as specified in
25 section forty-one hundred thirty-eight-d of the public health law, that
26 the parent may be contacted at any time after the child reaches the age
27 of eighteen years, but only if both the parent and the adult child so
28 choose. The court shall determine whether the terms and conditions
29 agreed to by the parties pursuant to subdivision two of this section are
30 in the child's best interests before approving the surrender. The judge
31 or surrogate shall inform the parent that where a surrender containing
32 conditions has been executed, the parent is obligated to provide the
33 authorized agency with a designated mailing address, as well as any
34 subsequent changes in such address, at which the parent may receive
35 notices regarding any substantial failure of a material condition,
36 unless such notification is expressly waived by a statement written by
37 the parent and appended to or included in such instrument. The judge or
38 surrogate also shall inform the parent that the surrender shall become
39 final and irrevocable immediately upon its execution and acknowledgment.
40 The judge or surrogate shall give the parent a copy of such surrender
41 upon the execution thereof.
Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted.
Social Services Law §383-c, subd. 4 (d) was amended by Laws of 2022, Ch 828, §4, effective December 30, 2022 to read as follows:
45 (d) Before a judge or surrogate approves an extra-judicial surrender,
46 the judge or surrogate shall order notice to be given to the person who
47 executed the surrender[, to persons identified in subdivision two of
48 section three hundred eighty-four-c of this title] and to such other
49 persons as the judge or surrogate may, in his or her discretion,
50 prescribe. [The petition shall set forth the names and last known
51 addresses of all persons required to be given notice of the proceeding,
52 pursuant to section three hundred eighty-four-c, and there shall be
53 shown by the petition or by affidavit or other proof satisfactory to the
54 court that there are no persons other than those set forth in the peti-
55 tion who are entitled to notice pursuant to such section.] No person who
56 has received such notice and been afforded an opportunity to be heard
1 may challenge the validity of a surrender approved pursuant to this
2 subdivision in any other proceeding. Nothing in this section shall be
3 deemed to dispense with the consent to adopt if otherwise required of
4 any person who has not executed the surrender.
Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted
Social Services Law §383-c, subd. 5 (h) was amended by Laws of 2022, Ch 828, §5, effective December 30, 2022 to read as follows:
9 (h) Upon execution of a surrender instrument, the parent executing the
10 surrender shall provide information to the extent known regarding the
11 other parent, any person to whom the surrendering parent had been
12 married at the time of the conception or birth of the child and any
13 other person who would be entitled to [notice of a proceeding to termi-
14 nate parental rights pursuant to section three hundred eighty-four-c of
15 this title] consent to the adoption of the child pursuant to subdivision
16 one of section one hundred eleven of the domestic relations law. Such
17 information shall include, but not be limited to, such parent's or
18 person's name, last-known address, social security number, employer's
19 address and any other identifying information. Any information provided
20 pursuant to this paragraph shall be recorded in the uniform case record
21 maintained pursuant to section four hundred nine-f of this article;
22 provided, however, that the failure to provide such information shall
23 not invalidate the surrender.
Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted
Social Services Law §384, subd. 8 was amended by Laws of 2022, Ch 828, §6, effective December 30, 2022 to read as follows:
27 8. Upon execution of a surrender instrument, the parent executing the
28 surrender shall provide information to the extent known regarding the
29 other parent, any person to whom the surrendering parent had been
30 married at the time of the conception or birth of the child and any
31 other person [who would be entitled to notice of a proceeding to termi-
32 nate parental rights pursuant to] listed in subdivision two of section
33 three hundred eighty-four-c of this title. Such information shall
34 include, but not be limited to, such parent's or person's name, last-
35 known address, social security number, employer's address and any other
36 identifying information. Any information provided pursuant to this
37 subdivision shall be recorded in the uniform case record maintained
38 pursuant to section four hundred nine-f of this article; provided,
39 however, that the failure to provide such information shall not invali-
40 date the surrender.
Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted
Social Services Law §384-a, subd. 1-b was amended by Laws of 2022, Ch 828, §7, effective December 30, 2022 to read as follows:
44 1-b. Upon accepting the transfer of care and custody of a child from
45 the parent, guardian or other person to whom care of the child has been
46 entrusted, a local social services official shall obtain information to
47 the extent known from such person regarding the other parent, any person
48 to whom the parent transferring care and custody had been married at the
49 time of the conception or birth of the child, any person who would be
50 entitled to consent to the adoption of the child pursuant to subdivision
51 one of section one hundred eleven of the domestic relations law, and any
52 other person [who would be entitled to notice of a proceeding to termi-
53 nate parental rights pursuant to] listed in subdivision two of section
54 three hundred eighty-four-c of this title. Such information shall
55 include, but not be limited to, such parent's or person's name, last-
56 known address, social security number, employer's address and any other
1 identifying information. Any information provided pursuant to this
2 subdivision shall be recorded in the uniform case record maintained
3 pursuant to section four hundred nine-f of this article; provided,
4 however, that the failure to provide such information shall not invali-
5 date the transfer of care and custody.
Social Services Law §384-b, subd. 3 was amended by Laws of 2022, Ch 828, §8, effective December 30, 2022 to read as follows:
9 (e) A proceeding under this section is originated by a petition on
10 notice served upon the child's parent or parents, the attorney for the
11 child's parent or parents and upon such other persons as the court may
12 in its discretion prescribe. Such notice shall inform the parents and
13 such other persons that the proceeding may result in an order freeing
14 the child for adoption without the consent of or notice to the parents
15 or such other persons. Such notice also shall inform the parents and
16 such other persons of their right to the assistance of counsel, includ-
17 ing any right they may have to have counsel assigned by the court in any
18 case where they are financially unable to obtain counsel. [The petition
19 shall set forth the names and last known addresses of all persons
20 required to be given notice of the proceeding, pursuant to this section
21 and section three hundred eighty-four-c of this title, and there shall
22 be shown by the petition or by affidavit or other proof satisfactory to
23 the court that there are no persons other than those set forth in the
24 petition who are entitled to notice pursuant to the provisions of this
25 section or of section three hundred eighty-four-c of this title.] When
26 the proceeding is initiated in family court service of the petition and
27 other process shall be made in accordance with the provisions of section
28 six hundred seventeen of the family court act, and when the proceeding
29 is initiated in surrogate's court, service shall be made in accordance
30 with the provisions of section three hundred seven of the surrogate's
31 court procedure act. When the proceeding is initiated on the grounds of
32 abandonment of a child less than one year of age at the time of the
33 transfer of the care and custody of such child to a local social
34 services official, the court shall take judicial notice of efforts to
35 locate the child's parents or other known relatives or other persons
36 legally responsible pursuant to paragraph (ii) of subdivision (b) of
37 section one thousand fifty-five of the family court act.
Social Services Law §384-a, subd. 12 was repealed by Laws of 2022, Ch 828, §9, effective December 30, 2022. It formerly provided:
12. If the court determines to commit the custody and guardianship of the child pursuant to this section, or if the court determines to suspend judgement pursuant to section six hundred thirty-three of the family court act, the court in its order shall determine if there is any parent to whom notice of an adoption would be required pursuant to section one hundred eleven-a of the domestic relations law. In its order the court shall indicate whether such person or persons were given notice of the proceeding and whether such person or persons appeared. Such determinations shall be conclusive in all subsequent proceedings relating to the custody, guardianship or adoption of the child.
Social Services Law §384-c, subd. 1 was amended by Laws of 2022, Ch 828, §10, effective December 30, 2022 to read as follows:
43 1. Notwithstanding any inconsistent provision of this or any other
44 law, and in addition to the notice requirements of any law pertaining to
45 persons other than those specified in subdivision two of this section,
46 notice as provided herein shall be given to the persons specified in
47 subdivision two of this section of any proceeding initiated pursuant to
48 sections three hundred fifty-eight-a[,] and three hundred eighty-four[,
49 and three hundred eighty-four-b] of this [chapter] title, involving a
50 child born out-of-wedlock. Persons specified in subdivision two of this
51 section shall not include any person who has been convicted of one or
52 more of the following sexual offenses in this state or convicted of one
53 or more offenses in another jurisdiction which, if committed in this
54 state, would constitute one or more of the following offenses, when the
55 child who is the subject of the proceeding was conceived as a result:
56 [(A)] (a) rape in first or second degree; [(B)] (b) course of sexual
1 conduct against a child in the first degree; [(C)] (c) predatory sexual
2 assault; or [(D)] (d) predatory sexual assault against a child.
Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted
Social Services Law §384-c, subd. 3 was amended by Laws of 2022, Ch 828, §11, effective December 30, 2022 to read as follows:
6 3. The provisions of this section shall not apply to persons entitled
7 to notice pursuant to section one hundred eleven of the domestic
8 relations law. The sole purpose of notice under this section shall be to
9 enable the person served pursuant to subdivision two of this section to
10 present evidence to the court relevant to the best interests of the
11 child. [In any proceeding brought upon the ground specified in paragraph
12 (d) of subdivision four of section three hundred eighty-four-b, a person
13 served pursuant to this section may appear and present evidence only in
14 the dispositional hearing.]
Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted
Social Services Law §384-c, subd. 7 was amended by Laws of 2022, Ch 828, §12, effective December 30, 2022 to read as follows:
17 7. No order of the court in any proceeding pursuant to section three
18 hundred fifty-eight-a[,] or three hundred eighty-four [or three hundred
19 eighty-four-b] of this [chapter] title or in any subsequent proceeding
20 involving the child's custody, guardianship or adoption shall be
21 vacated, annulled or reversed upon the application of any person who was
22 properly served with notice in accordance with this section but failed
23 to appear, or who waived notice pursuant to subdivision five of this
24 section. Nor shall any order of the court in any proceeding involving
26 reversed upon the application of any person who was properly served with
27 notice in accordance with this section in any previous proceeding in
28 which the court determined that the transfer or commitment of the
29 child's care, custody or guardianship to an authorized agency was in the
30 child's best interests.
Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted
December 28, 2022
Appellate Division, Second Department
Supreme Court should have denied the defendant’s motion to resettle the judgment of divorce where the amendment proposed by the defendant was a substantive modification beyond the court’s inherent authority to correct a mistake, defect, or irregularity in the original judgment “not affecting a substantial right of a party” (CPLR 5019[a]).
In Ferrigan v Ferrigan, --- N.Y.S.3d ----, 2022 WL 17660436, 2022 N.Y. Slip Op. 07058 (2d Dept.,2022) the parties were married in March 1996. Their judgment of divorced entered August 12, 2003 included a stipulation of settlement dated February 27, 2003 which was incorporated but not merged into the judgment. In August 2018, the defendant moved, inter alia, pursuant to CPLR 5019(a) to resettle the judgment of divorce on the ground that a provision in the judgment of divorce requiring him to provide health insurance for the parties’ children was inconsistent with the provision in the stipulation which provided that the plaintiff would provide health insurance for the children through her employer, but if she were unemployed, the defendant would do so through his employer. In an order dated April 1, 2019, the Supreme Court, inter alia, granted the defendant’s motion so as to replace the provision requiring the defendant to provide health insurance for the parties’ children with a provision requiring the plaintiff to provide health insurance for the parties’ children..
The Appellate Division modified. It held that the defense of laches is not a basis to preclude the resettlement of the judgment of divorce as the plaintiff failed to show that she was prejudiced by the defendant’s delay in seeking to correct the error. Since the plaintiff failed to show a change in circumstances making it inequitable to grant the requested relief, t]he mere lapse of time without a showing of prejudice will not sustain a defense of laches. Resettlement of a judgment of divorce pursuant to CPLR 5019(a) is an appropriate remedy when the judgment does not accurately incorporate the terms of a stipulation of settlement. Although the judgment of divorce provided that the defendant was responsible for providing health insurance for the parties’ children, that provision was inconsistent with the terms of the stipulation which contained a provision which set forth that the plaintiff was responsible for providing health insurance for the parties’ children through her employer unless she became unemployed, and then the defendant would be responsible for providing health insurance for them through his employer. Supreme Court properly granted defendant’s motion to resettle the judgment of divorce to the extent that it was inconsistent with the stipulation. However, the Supreme Court should have denied the defendant’s motion to resettle the judgment of divorce to the extent it sought to replace the provision requiring the defendant to provide health insurance for the parties’ children with a provision requiring the plaintiff to be solely responsible to provide health insurance for the parties’ children. The amendment proposed by the defendant failed to comport with the terms of the stipulation regarding the responsibility of the parties as to the health insurance for their children and was a substantive modification beyond the court’s inherent authority to correct a mistake, defect, or irregularity in the original judgment “not affecting a substantial right of a party” (CPLR 5019[a]).
Appellate Division, Third Department
Argument that his change in residence constituted a change in circumstances was unpreserved for appellate review “absent a motion to conform the pleadings to the proof”
In Matter of Anthony JJ, v Angelin JJ, --- N.Y.S.3d ----, 2022 WL 17835304 (3d Dept.,2022) Family Court dismissed the father’s custody modification petition, finding that the father had failed to demonstrate a change in circumstances warranting a best interests analysis. The Appellate Division affirmed. It held that the required change in circumstances may be found to exist where the parties’ relationship has deteriorated to a point where there is no meaningful communication or cooperation for the sake of the children. Here, the record as a whole reflected a level of hostility and mutual distrust between the parties that demonstrated that the parties were incapable of working together in a cooperative fashion for the good of their children. However, as Family Court found, this hostility and failure to cooperate existed at the time of the prior order – serving as the basis, at least in part, for awarding the mother sole legal and primary physical custody of the children, and was therefore not a new development. The father’s argument that his change in residence constituted a change in circumstances was unpreserved for appellate review “absent a motion to conform the pleadings to the proof” before Family Court.
Condition in dispositional neglect order requiring Respondent to “maintain and provide documentation of legal income source(s) sufficient to support the child” did not violate her constitutional rights where Respondent admitted to engaging in illegal prostitution and testified as to a desire to no longer earn money this way
In Matter of Y. SS.,--- N.Y.S.3d ----, 2022 WL 17835259(3d Dept.,2022) after a hearing Family Court issued a decision finding the subject child to be a neglected child. A dispositional hearing was held, after which Family Court issued a dispositional order indicating that respondent has yet to achieve any insight that she engaged in any wrongful and neglectful behavior and ordering that the subject child remain in petitioner’s custody. The Appellate Division affirmed. It was established that respondent had a friend with whom she sometimes performed sexual services for money. At some point, in text messages, the friend began asking for things involving the subject child. Respondent testified that she “knew he wanted something with my daughter, but he wasn’t getting it.” On one occasion, respondent sent a naked photograph of the subject child to the friend. On another occasion, during a telephone call with the friend, respondent offered to perform oral sex on him while allowing him to look at the subject child naked while she slept. In text messages, respondent provided her address to the friend. The Appellate Division held that the willingness of respondent to involve the subject child in the performance of her sexual services for money put the subject child’s physical, emotional and mental health in imminent danger and we cannot say that “a reasonable and prudent parent [would] have so acted ... under the circumstances” (Nicholson v. Scoppetta, 3 N.Y.3d 357, 370, 787 N.Y.S.2d 196, 820 N.E.2d 840 [2004]). Although respondent testified that she took the photograph to send to the child’s doctor, Family Court found respondent’s testimony incredible. Family Court properly adjudicated the subject child to be neglected. The Appellate Division rejected Respondents argument that some of the conditions of Family Court’s dispositional order were unconstitutional. Respondent challenged the condition that she “maintain and provide documentation of legal income source(s) sufficient to support the child.” Respondent admitted to engaging in illegal prostitution and testified as to a desire to no longer earn money this way. It was unclear how this condition, which encouraged her not to engage in prostitution as a means of income, violated her constitutional rights. Respondent also challenged the condition that she “acknowledge and demonstrate an understanding of her role in the neglect of the subject child ..., specifically how her prostitution and involvement of [the subject child] in that prostitution as sexual bait for a pedophile harmed [the subject child] and placed [her] at risk of further harm.” Contrary to respondent’s argument, this condition did not require her to admit to a finding of neglect, but rather that she recognize and understand how involving the subject child in her prostitution put the child at risk. A demonstration of understanding would decrease the chance of such behavior recurring. It did not find that this condition implicated respondent’s right to due process of law.
Appellate Division, Fourth Department
Although the burden of proof in a Neglect proceeding rests with the petitioner, once the petitioner has established a prima facie case, the burden of going forward shifts to respondents to rebut the evidence of parental culpability.
In Matter of Mea V, 210 A.D.3d 1408 (4th Dept, 2022) a neglect proceeding, the Appellate Division observed that a prima facie case of child abuse or neglect may be established by evidence that a child sustained an injury that would ordinarily not occur absent an act or omission of respondents and that respondents were the caretakers of the child at the time the injury occurred (Family Ct Act § 1046 [a] [ii]; Matter of Philip M., 82 N.Y.2d 238, 243, 604 N.Y.S.2d 40 [1993]). Although the burden of proof rests with the petitioner, once the petitioner “has established a prima facie case, the burden of going forward shifts to respondents to rebut the evidence of parental culpability. To rebut the presumption of parental culpability, the respondents may present evidence to (1) establish that during the time period when the child was injured, the child was not in respondents care; (2) demonstrate that the injury or condition could reasonably have occurred accidentally, without the acts or omission of respondents; or (3) counter the evidence that the child had the condition which was the basis for the finding of injury . In determining whether to rely on the presumption, the court should consider such factors as the strength of the prima facie case and the credibility of the witnesses testifying in support of it, the nature of the injury, the age of the child, relevant medical or scientific evidence and the reasonableness of the caretakers explanation in light of all the circumstances. The Appellate Division rejected respondents contention that, inter alia, they rebutted the presumption of parental culpability by providing a reasonable explanation for how the child’s injuries could have occurred without any act or omission on their part. Respondents originally claimed to the pediatrician and the Child Protective Services caseworker that the child’s injuries, which included 28 rib fractures and an injured lung, were accidental, but none of the medical evidence supported that claim. It concluded that Family Court properly rejected respondents’ subsequent claim at trial that the injuries were due to an underlying medical condition: the testimony of respondents’ expert witnesses was incredible and their conclusions were not consistent with the other evidence.
Family Court
Where, no other State could properly assume custody jurisdiction it was appropriate for New York to assume “vacuum jurisdiction”
In Olaide O v Oluseun O, 2022 WL 17727139 (unreported disposition) (Fam Ct, 2022) the child F. had resided in Nigeria with relatives for his entire life. During the custody hearing, Ms. O., who resided in New York testified that she and her husband had resided in Nigeria and that Mr. O. left Nigeria in 2016 with the intention that she and the children would follow as soon as possible. Based on testimony presented at the hearing, the Court found that Ms. O. never consented to the child’s permanent residence in Nigeria, that the relatives caring for the child in Nigeria were not persons acting as a parent and that it was the intention of both parties to bring the child to the United States. Therefore, the Court held that: “Here, no other State can properly assume jurisdiction. Nor can jurisdiction properly lie in Nigeria when both parents, who have a superior right to custody, reside in New York. Additionally, the Children who reside here in NY have rights to visit with their sibling that cannot be effectuated without the court assuming jurisdiction. Therefore, it was appropriate for New York to assume “vacuum jurisdiction” in this case. Nusrat C. v. Muhammed R., 67 AD3d 419 (1st Dept 2009) (finding that subject matter jurisdiction existed under both DRL § 70 (a) and DRL 76(1)(d) even though the child lived abroad, because both parents lived in the state and were personally before the court). Pursuant to DRL 76(1)(d), this Court has jurisdiction over the child F. O.”
Domestic Relations Law § 240, subd.1 (a-3)
Laws of 2022, Chapter 740, § 1 enacted on December 23, 2022 amended Domestic Relations Law § 240 Subdivision 1 by adding a new paragraph (a-3), effective as provided in § 4 on the 180th day after it shall have become a law (June 25, 2023). It provides as follows:
(a-3) Court ordered forensic evaluations involving child custody and
visitation. (1) The court may appoint a forensic evaluator on behalf of
the court to evaluate and investigate the parties and a child or chil-
dren in a proceeding involving child custody and visitation provided
that the child custody forensic evaluator is a psychologist, social
worker or psychiatrist who is licensed in the state of New York and has
received within the last two years, a certification of completion for
completing the training program pursuant to paragraph (o) of subdivision
three of section five hundred seventy-five of the executive law.
(2) Notwithstanding any provision of law to the contrary, no individ-
ual shall be appointed by a court to conduct a forensic evaluation in a
proceeding involving child custody and visitation pursuant to this para-
graph unless such individual has received within the last two years, a
certification of completion for completing the training program pursuant
to paragraph (o) of subdivision three of section five hundred seventy-
five of the executive law.
(3) A psychologist, social worker or psychiatrist authorized to
conduct court ordered child custody forensic evaluations pursuant to
this section shall notify the court in which such individual requests to
be considered for such court ordered evaluations. Any psychologist,
social worker or psychiatrist who no longer meets the requirements of
this section in regards to completing within the last two years the
training program pursuant to paragraph (o) of subdivision three of
section five hundred seventy-five of the executive law shall be obli-
gated to inform such courts within seventy-two hours of noncompliance so
as to be removed from consideration for court ordered evaluations.
(4) Upon appointment, the court shall require such child custody
forensic evaluator to show proof of certification for completing within
the last two years the training program pursuant to paragraph (o) of
subdivision three of section five hundred seventy-five of the executive
law.
December 14, 2022
Pendente lite child support award will not be disturbed absent exigent circumstances or failure to consider appropriate factors.
In Murray v Rashid, --- N.Y.S.3d ----, 2022 WL 17490799, 2022 N.Y. Slip Op. 07001 (First Dept., 2022) the Appellate Division declined to disturb the pendente lite child support award where the husband had not shown that there were exigent circumstances necessitating a different award, nor that Supreme Court failed to consider the appropriate factors when it determined the award, which was derived from the parties’ imputed incomes.
Even if the judgment of divorce included terms that were not expressly agreed to by the parties, the parties agreement in their oral stipulation upon the essential elements created an enforceable contract and court was entitled to fill in the gaps based on objective criteria
In Bradley v Bakal, --- N.Y.S.3d ----, 2022 WL 17490833, 2022 N.Y. Slip Op. 06988(1st Dept.,2022) the Appellate Division, inter alia, rejected defendant’s contention that the judgment of divorce should be vacated in its entirety because the parties had not yet agreed to all the ancillary issues to the divorce, and the judgment did not reflect the parties’ in-court oral stipulation. The record made clear that the parties’ in-court oral stipulation was intended to resolve all ancillary issues of the divorce. Even if the judgment of divorce included terms that were not expressly agreed to by the parties, upon review of the oral stipulation, it concluded that the parties agreed upon the essential elements to create an enforceable contract, notwithstanding that certain discrete issues were left open to future negotiation. Since the parties were unable to reach an agreement on these remaining issues, the court was entitled to fill in the gaps based on objective criteria (see Four Seasons Hotels v. Vinnik, 127 A.D.2d 310, 317–318, 515 N.Y.S.2d 1 [1st Dept. 1987]). It remanded the matter to the court for a determination that the terms of the judgment of divorce not expressly agreed to by the parties comport with some objective criteria.
Appellate Division, Second Department
Family Court has the authority to award attorneys’ fees pursuant to Domestic Relations Law § 237(b) and Family Court Act § 651(b) in a contempt proceeding based upon its determination, in effect, that the mother had engaged in frivolous conduct. A hearing was not necessary since the father requested the imposition of attorneys’ fees and sanctions in his motion papers.
In Matter of Coward v Biddle, 2022 WL 17332496 (2d Dept.,2022) the father’s counsel moved, inter alia, to hold the mother in civil contempt for her failure to comply with a prior order of the Family Court which had directed the mother to pay attorneys’ fees directly to the father’s counsel of $3,000. Family Court found the mother in civil contempt of the order, and awarded the father’s counsel additional attorneys’ fees totaling $4,500. The Appellate Division affirmed both orders. It held that the Family Court had the authority to award attorneys’ fees pursuant to Domestic Relations Law § 237(b) and Family Court Act § 651(b). The court did not improvidently award the father’s counsel attorneys’ fees based upon its determination, in effect, that the mother had engaged in frivolous conduct (see 22 NYCRR 130–1.1[a]). Despite the mother’s contention to the contrary, a hearing with respect to the award of attorneys’ fees was not necessary under the circumstances, since the father requested the imposition of attorneys’ fees and sanctions in his motion papers.
Where the hearing court is presented with sharply conflicting accounts regarding the subject events, and chooses to credit the testimony of certain witnesses over that of others, its determination will not be disturbed unless clearly unsupported by the record.
In Matter of Sydelle P. --- N.Y.S.3d ----, 2022 WL 17332493, 2022 N.Y. Slip Op. 06809 (2d Dept.,2022) the Appellate Division, held that a finding of neglect is proper where a preponderance of the evidence establishes that the child’s physical, mental, or emotional condition was impaired or was in danger of becoming impaired by the parent’s commission of an act, or acts, of domestic violence in the child’s presence. Even a single act of domestic violence, either in the presence of a child or within the hearing of a child, may be sufficient for a neglect finding. Where the hearing court is presented with sharply conflicting accounts regarding the subject events, and chooses to credit the testimony of certain witnesses over that of others, its determination will not be disturbed unless clearly unsupported by the record.
Where the hearing court is presented with sharply conflicting accounts regarding the subject events, and chooses to credit the testimony of certain witnesses over that of others, its determination will not be disturbed unless clearly unsupported by the record.
In Matter of Karen P. v. Alvin P., --- N.Y.S.3d ----, 2022 WL 17332553 (Mem), 2022 N.Y. Slip Op. 06808 (2d Dept.,2022) a family offense proceeding the Appellate Division held that where the hearing court is presented with sharply conflicting accounts regarding the subject events, and chooses to credit the testimony of certain witnesses over that of others, its determination will not be disturbed unless clearly unsupported by the record.
Supreme Court did not improvidently exercise its discretion in awarding the monied spouse attorney’s fees where, among other things, plaintiff’s conduct resulted in unnecessary litigation
In Forman v Forman, --- N.Y.S.3d ----, 2022 WL 17480735, 2022 N.Y. Slip Op. 06913 (2d Dept.,2022) the parties stipulation of settlement was incorporated but not merged into a judgment of divorce dated April 2, 2019. In June 2019, the plaintiff moved to vacate the judgment of divorce and to set aside the stipulation. The Supreme Court, denied the plaintiff’s motion and awarded the defendant attorney’s fees of $6,987.50. The Appellate Division affirmed. It held that Supreme Court did not improvidently exercise its discretion in awarding the defendant attorney’s fees. The award of reasonable attorney’s fees is a matter in the court’s sound discretion, and the court may consider, inter alia, a party’s tactics that unnecessarily prolonged the litigation. While the plaintiff was the less monied spouse, the court’s award reflected consideration of the relevant factors, including that the plaintiff’s conduct resulted in unnecessary litigation. Thus, the court did not improvidently exercise its discretion in granting the defendant’s cross motion for an award of attorney’s fees.
Family Court properly included the children as protected persons on the order of protection, where he evidence demonstrated that doing so was necessary to further the purposes of protection
In Matter of Cook v Berehowsky, --- N.Y.S.3d ----, 2022 WL 17480744, 2022 N.Y. Slip Op. 06925 (2d Dept.,2022) the Appellate Divison observed that a person commits harassment in the second degree when that person, “with intent to harass, annoy or alarm another person ... strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same (Penal Law § 240.26[1]). The intent element may be inferred from the surrounding circumstances. It held that the mother established by a fair preponderance of the evidence that the father had committed the family offense of harassment in the second degree. The mother’s testimony, which the Family Court credited, established that the father pulled a rug out from under her, causing her to fall. The father committed this act in the presence of the children, and the mother’s hand hit one of the subject children as she fell. The father’s intent to harass and alarm the mother could be inferred from the circumstances here, including his screaming before the incident and the lack of a legitimate reason for the father to pull the rug on which the mother was standing, particularly when the mother was in such close proximity to the subject children. Additionally, the Family Court properly included the children as protected persons on the order of protection, as the evidence demonstrated that doing so was “necessary to further the purposes of protection” (Family Ct Act § 842[l]; see Matter of Lengiewicz v. Lengiewicz, 167 A.D.3d 608, 609, 89 N.Y.S.3d 241; Matter of Shank v. Shank, 155 A.D.3d 875, 877, 63 N.Y.S.3d 719).
March 31, 2021 amendment to Family Court Act § 1046(a)(iii) which provide that “the sole fact that an individual consumes cannabis” is not sufficient to constitute prima facie evidence of child neglect retroactively applied to events that occurred, and a Family Court decision that was rendered, prior to March 2021.
In Matter of Mia S v Michelle C,, --- N.Y.S.3d ----, 2022 WL 17480834, 2022 N.Y. Slip Op. 06932 (2d Dept.,2022) the Appellate Division observed that on March 31, 2021, Family Court Act § 1046(a)(iii) was amended to provide that “the sole fact that an individual consumes cannabis” is not sufficient to constitute prima facie evidence of child neglect. It held that the March 31, 2021 amendment to Family Court Act § 1046(a)(iii) should be retroactively applied to events that occurred, and a Family Court decision that was rendered, prior to March 2021. It observed that pursuant to Family Court Act § 1046(a)(iii), “proof that a person repeatedly misuses a drug,” under certain circumstances, constitutes “prima facie evidence that a child of ... such person is a neglected child.” Where this presumption of neglect is triggered, the petitioner is not required to establish that the child suffered actual harm or was at imminent risk of harm.” Family Court Act § 1046(a)(iii), as amended (L 2021, ch 92, § 58), provides as follows: “(a) In any hearing under this article and article ten-A of this act: ... “(iii) proof that a person repeatedly misuses a drug or drugs or alcoholic beverages, to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of or who is the legal responsibility of such person is a neglected child except that such drug, or alcoholic beverage misuse shall not be prima facie evidence of neglect when such person is voluntarily and regularly participating in a recognized rehabilitative program. Provided however, the sole fact that an individual consumes cannabis, without a separate finding that the child’s physical mental or emotional condition was impaired or is in imminent danger of becoming impaired established by a fair preponderance of the evidence shall not be sufficient to establish prima facie evidence of neglect.”
The Appellate Division concluded that Family Court’s finding of neglect was proper under Family Court Act § 1046(a)(iii), as amended in March 2021 was proper. In determining that the child was neglected, the Family Court did not make a finding as to whether the child’s “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired” (FCA § 1012[f][i]). Such a finding was obviated because the court relied on the presumption set forth in Family Court Act § 1046, under which “proof that a person repeatedly misuses a drug or drugs or alcoholic beverages, to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of or who is the legal responsibility of such person is a neglected child” (id. § 1046[a][iii]). Thus, the order appealed from should be affirmed only if the statutory presumption was properly applied. It held that the 2021 amendment did not preclude a determination that the petitioner established a prima facie case of neglect. The 2021 amendment should not be interpreted as preventing any reliance on the misuse of marihuana, no matter how extensive or debilitating, to establish a prima facie case of neglect. The statute still encompasses the misuse of other legal substances, such as alcoholic beverages and prescription drugs. It held that based on the plain language of the statute, the 2021 amendment does not prevent a court from finding that there has been a prima facie showing of neglect where the evidence establishes that the subject parent has, in fact, repeatedly misused marihuana in a manner that “has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality”. Such a finding is not based on “the sole fact” that the parent “consumes cannabis”.
The evidence presented at the fact-finding hearing, which included the testimony of the mother and her boyfriend, hospital treatment records, and other medical records, supported the Family Court’s determination that the petitioner met its burden of proving that the mother neglected the child by her misuse of marihuana in a manner and to the extent contemplated by Family Court Act § 1046(a)(iii). In its order, the Family Court expressly determined that the mother had misused marihuana and “clearly had a substantial impairment of judgment, and/or substantial manifestation of irrationality and was disoriented and/or incompetent.” Since this finding was not based on “the sole fact” that the mother “consumes cannabis” (Family Ct Act § 1046[a][iii]), it provided a sufficient basis on which to apply the presumption of neglect arising from repeated misuse of drugs that is articulated in the statute, as amended.
Appellate Division, Third Department
Supreme Court properly denied pretrial motion for classification of assets, as separate property where the motion lacked sufficient information beyond the husband’s self-serving statements to determine the appropriate ownership interests, the current value of the properties or any improvements made to the properties during the marriage.
In Belmonte v Belmonte, --- N.Y.S.3d ----, 2022 WL 17347194, 2022 N.Y. Slip Op. 06844 (3d Dept.,2022) an action for a divorce, the husband cross-moved for, among other things, a declaration that certain real property was separate property. Supreme Court denied the husband’s cross motion. In support of his motion, the husband submitted his own affidavit, various deeds and titles showing the titled owners of each property, and an expenditures list showing sums but lacking any detail as to how or where each sum was expended. The Appellate Division observed that the appeal lacked sufficient information beyond the husband’s self-serving statements to determine the appropriate ownership interests, the current value of the properties or any improvements made to the properties during the marriage. It held that while it generally encourages pretrial classification of assets, under these circumstances, Supreme Court did not abuse its discretion in denying the husband’s cross motion to classify assets as separate property pretrial as additional discovery would place the motion court in a far better position to determine this legally dispositive issue, namely, what, if any, appreciation in the value of the real property can be considered marital property.
Supreme Court
Supreme Court grants Defendants motion to re-open the trial pursuant to CPLR 4404(b), after the parties rested, so she could offer into evidence certain credit card records and charts pursuant to the voluminous writing exception
In Gary G. v Elena A.G. ,--- N.Y.S.3d ----, 2022 WL 17482396, 2022 N.Y. Slip Op. 22373 (Sup Ct., 2022) Supreme Court granted defendants motion to re-open the trial pursuant to CPLR 4404(b),after the parties rested, so she could offer into evidence certain credit card records and charts pursuant to the voluminous writing exception. It rejected plaintiff argument that defendant’s reliance on CPLR §4404(b) was inapplicable here because the Court had not issued a decision or judgment. In support of the motion Defendant’s counsel affirmed that, his law firm e-mailed plaintiff’s counsel that defendant intended to offer certain charts pursuant to the voluminous writing exception into evidence the following day in support of her testimony regarding alleged marital debt incurred prior to commencement on her credit cards; that his law firm included a link to the proposed charts together with copies of the underlying credit card statements in said e-mail for plaintiff’s counsel’s review. Defendant’ counsel affirmed that he “inadvertently forgot” to offer “certain business records, reflecting the Defendant-Wife’s credit card debts and the parties’ marital expenditures, into evidence” on September 13, 2022.. The parties rested on September 14, 2022.
Supreme Court observed that CPLR 4404(b) provides: (b) Motion after trial where jury not required. After a trial not triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside its decision or any judgment entered thereon. It may make new findings of fact or conclusions of law, with or without taking additional testimony, render a new decision and direct entry of judgment, or it may order a new trial of a cause of action or separable issue. It pointed out that it is well-established that a motion pursuant to CPLR 4404(b) “must be made within 15 days after the submission of the court’s decision”. Where a CPLR 4404(b) motion is submitted more than 15 days after the court’s decision, the movant must demonstrate good cause for the delay. The standard in reviewing these applications includes the moving party demonstrating that they could not have previously discovered this evidence or that the evidence was previously inaccessible. The Court rejected plaintiff’s contention that defendant’s application pursuant to CPLR 4404(b) was fatal because no judgment or order has been issued. The unique facts and circumstances presented here clearly fell within the contemplation of CPLR 2005 relating to law office failure which provides: …the court shall not, as a matter of law, be precluded from exercising its discretion in the interests of justice to excuse delay or default resulting from law office failure. Moreover, it is well-established that “[t]rial courts have the power to permit a litigant to reopen a case under appropriate circumstances” and in doing so the Court must consider “whether the movant has provided a sufficient offer of proof, whether the opposing party is prejudiced, and whether significant delay in the trial will result if the motion is granted.” The Court found that it was appropriate under the unique facts and circumstances presented, re-opening the trial on the limited issue of offering the credit cards and any related direct and cross-examination related to any such exhibits which may be accepted into evidence after the Court hears any relevant evidentiary objections based upon law office failure.
The court pointed out that the best evidence rule “requires the production of an original writing where its contents are in dispute and sought to be proven”. CPLR 4518(a) (the “business record exception”) provides that: (a) Generally. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. The voluminous writing exception (also referred to as the “Voluminous Record Rule”) “permits the admission of summaries of voluminous records or entries where, if requested, the party against whom it is offered can have access to the original data”. The voluminous writing exception is not a new principal. In Public Operating Corp. v. Weingart, the Appellate Division, First Department in 1939 wrote that:[w]hen documents introduced in evidence at a trial are voluminous and of such a character as to render it difficult for the jury to comprehend material facts without schedules containing abstracts thereof, it is within the discretion of the judge to admit such schedules provided they are based on facts in evidence, verified by the testimony of the person by whom they were prepared, and provided that the adverse party is permitted to examine them to test their correctness and to cross examine upon them before the case is submitted to the jury (257 AD 379, 382 [1 Dept.,1939]).
Family Court
Family Court holds that FCA § 1015-a allows the court to order a social services official to transport the children in its Temporary Custody to a supervised visit, before a final order of disposition is entered
In the Matter of D.G., G.C., G.L., I.C., I.L., K.C., L.C., M.C., S.C., --- N.Y.S.3d ----, 2022 WL 17589740, 2022 N.Y. Slip Op. 22379 (Fam Ct, 2022) the Family Court observed that the Court may order a social services official, such as the Commissioner, to provide a child placed in his care with authorized services pursuant to Family Ct Act §§ 255, 1015-a and 18 NYCRR §§ 427.3(c)(1); 441.15. State regulations authorize the Petitioning Agency to make special payments on behalf of foster children for items, costs, or services that are necessary for the child but are not included in the rate for board, care, and clothing. Such payments can include expenses necessary for family visits. 18 NYCRR § 427.3(c)(1). FCA § 1015-a allows the court to order a social services official to provide or arrange for services and help in order to protect the family, rehabilitate the family, or discharge the child from foster care including visitation services. FCA § 1030 applies to cases in which subject children are in the temporary custody of the local social services district before a final order of disposition places the subject children in foster care; it provides that a parent has a right to reasonable and regularly scheduled visits and allows a parent to apply to the court for such visits. When children are placed in foster care, visitation is the most critical way for families to stay connected and to achieve family reunification. State regulations require that parents receive at least bi-weekly visits. The Family Court rejected the argument of the Petitioning Agency that an order requiring the agency to transport the children I.C. and S.C. to the second weekly supervised visit would encroach on the agency’s administrative discretion to allocate its scarce resources. The Court granted the Respondent Mother’s application to the extent that the foster care agency, Catholic Guardian Services, was directed to transport the subject children I.C. and S.C. to the second weekly supervised visit.
November 30, 2022
Appellate Division, Third Department
Navy pension credits earned prior to the marriage, but acquired during the marriage, with marital funds, were deferred compensation which was defendants separate property. However, as marital funds were utilized to purchase the pension credits, those funds were subject to equitable distribution
In Szypula v Szypula, --- N.Y.S.3d ----, 2022 WL 17168939, 2022 N.Y. Slip Op. 06664 (3d Dept.,2022) Plaintiff (wife) and defendant ( husband) were married in 1996 and had two unemancipated children. The husband was employed by the United States Navy from 1987 until 1998, earning 11 years of unvested pension credits. In 2012, the husband began employment with the United States Department of State and was given the option of “buy[ing] back” the pension benefit credits earned for his previous military service. He did so, utilizing marital funds for the purchase. In 2019, the wife commenced the action for divorce. The Supreme Court held that the Navy pension credits earned prior to the marriage, but acquired during the marriage, were marital in nature and included them in its calculation of the wife’s award of the husband’s pension.
The Appellate Division held that Supreme Court erred in classifying that portion of the Navy pension credits earned prior to the marriage as marital property. Domestic Relations Law § 236 creates a statutory presumption that all property acquired during the marriage is marital. The burden then rests with the party asserting the separate property claim to rebut the presumption. A pension benefit is, in essence, a form of deferred compensation derived from employment and an asset of the marriage that both spouses expect to enjoy at a future date. Even though workers are unable to gain access to the money until retirement, their right to it accrues incrementally during the years of employment. An employee’s interest in such a plan, except to the extent that it is earned before marriage or after commencement of a matrimonial action, is marital property. Whether and to what extent a pension benefit is marital or separate property is determined by the time period in which the credit for the pension was earned. Here, as nine of the 11 years of credits purchased were admittedly earned prior to the marriage, they remained defendant’s separate property. The Court noted that compensation for past services earned prior to the marriage is separate property. The nine years of premarriage Navy credits were earned outside the marriage and were based on the fruit of the titled spouse’s sole labors. As they were not due in any way to the indirect contributions of the non-titled spouse, the wife’s contention that she was entitled to an equitable share of any “appreciation” in the value of credits that had been classified as the husband’s separate property was unpersuasive. The acquisition of the separate pension credits could not serve to transform such property into a marital asset (see Ceravolo v. DeSantis, 125 A.D.3d 113, 116, 1 N.Y.S.3d 468 [3d Dept. 2015]; Burgio v. Burgio, 278 A.D.2d 767, 769, 717 N.Y.S.2d 769 [3d Dept. 2000]). However, as marital funds were utilized to purchase the pension credits, those funds were subject to equitable distribution. It remitted the matter to Supreme Court to amend the QDRO to reflect that the nine years of premarriage credit for military service from 1987 to 1996 was the husband’s separate property and to equitably distribute the marital funds utilized to purchase the credits
Where the conduct at issue is alleged to have occurred in a private residence, in order to establish 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.
In Matter of Kilts v Kilts 2022 WL 17168983 (3d Dept.,2022) the Appellate Division reversed an order of the family court which found that respondent had committed the family offense of disorderly conduct and issued a six-month order of protection on petitioner’s behalf. It pointed out that , “[a] person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof[,] ... [h]e [or she] engages in fighting or in violent, tumultuous or threatening behavior” (Penal Law § 240.20[1]). Pursuant to both CPL 530.11(1) and Family Court Act § 812(1), disorderly conduct’ includes disorderly conduct not in a public place. Yet, 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 . At the fact-finding hearing, petitioner testified that she had called the police on respondent a couple of times, and in the morning of the day respondent threatened her life, she believed she spoke with “Officer Morrison” or another sheriff’s deputy but did not have an accompanying police report. Petitioner at first stated that she never told anyone about respondent’s threat, but then stated that she told two friends about it, as well as her son-in-law. Here, petitioner failed to meet her burden of making a prima facie showing that respondent had the requisite intent to create public inconvenience, annoyance or alarm, or recklessly causing a risk of the same. Petitioner’s evidence did not establish that respondent’s actions were public in a manner that would support such a finding. Respondent’s threat against petitioner’s life would have undoubtedly caused public disorder if others had heard the threat. However, the record revealed that respondent appeared to have threatened petitioner’s life in only their company, and without having drawn the attention of others to the scene. Although the police were called on one instance, without a police report in evidence, it was impossible to determine which one of the parties – or if, in fact, a neighbor – had called the police to therefore permit a finding that respondent’s conduct rose to the level of creating a public disturbance.
The law is well established that hearsay evidence as to allegations of abuse or neglect can be admitted into evidence during a custody proceeding if corroborated by other evidence.
In Matter of Sarah QQ v Raymond PP, --- N.Y.S.3d ----, 2022 WL 17168630, 2022 N.Y. Slip Op. 06659 (3d Dept.,2022) after a fact-finding hearing and a Lincoln hearing, Family Court dismissed the father’s custody modification petitions and granted the mother’s petitions, awarding her sole legal and primary physical custody of the child. On appeal the father contended that Family Court improperly excluded CPS records regarding indicated findings against the mother concerning her abuse and/or neglect of another child, which included statements by the subject child. The Appellate Division observed that although hearsay is generally not permitted, “[t]his Court has carved out an exception to the hearsay rule in custody cases involving allegations of abuse and neglect of a child, based on the Legislature’s intent to protect children from abuse and neglect as evidenced in Family Ct Act § 1046(a)(vi)” (Matter of Rosario WW. v. Ellen WW., 309 A.D.2d 984, 987, 765 N.Y.S.2d 710 [3d Dept. 2003]). Such testimony requires corroboration, though a relatively low degree of corroboration is sufficient, and the requirement may be satisfied by any other evidence tending to support the reliability of the child’s statements. At the fact-finding hearing, Family Court permitted the father to testify as to receiving notifications from CPS that the mother “has been indicated in some cases regarding her other children.” The mother then objected, stating that this was “irrelevant and immaterial” because it did not involve the subject child and was hearsay. The court overruled the objection on the basis that the other children resided in the same home as the subject child. Later during the fact-finding hearing, the father sought to admit certified records of Saratoga County Department of Social Services “pertaining to the parties and/or the child relative to these proceedings.” The mother objected on the basis of hearsay. The father contended that these records were admissible as business records or alternatively, under an exception based on indicated abuse and neglect findings. The attorney for the child also argued that the records fell within “the hearsay exception for them to be admitted.” Family Court did not allow the records into evidence on the basis of hearsay, remarking that “we aren’t here on a neglect proceeding. We’re here on a custody proceeding.... [N]o hearsay is permitted unless there’s an exception otherwise. And ... the fact that it may deal with abuse or neglect is not an exception to the hearsay rule.” The agency records that the father sought to admit were not in the record. A review of the father’s modification petition revealed that he noted CPS’s involvement with the mother and cited to such as establishing a change in circumstances. Specifically, he alleged there had been “ongoing child protective involvement in the mother’s home, that the subject child had indicated there was domestic abuse taking place in the home and that the child has reported that he is being neglected by the mother. The petition stated that “it was revealed through the CPS open investigation that the child is reporting that there is no food at the mother’s home and that he goes without meals.” Based on the foregoing, the Appellate Division held that Family Court erred in refusing to allow the CPS records into evidence based upon the rationale that no hearsay exception existed for abuse and neglect allegations in a Family Ct Act article 6 proceeding. Although this was not a Family Ct Act article 10 proceeding, the law is well established that hearsay evidence as to allegations of abuse or neglect can be admitted into evidence during a custody proceeding if corroborated by other evidence. The matter was reversed and remitted to Family Court for the admission of such evidence at a new fact-finding hearing on the parties’ modification petitions.
Dismissal of custody modification petition reversed and matter remitted to a different judge where Family Court demonstrated an inability to be fair. Based on its comments regarding its predispositions and its inappropriate comment regarding the mother’s credibility, Family Court appeared to have prejudged the case.
In Matter of Nicole B. v Franklin A , --- N.Y.S.3d ----, 2022 WL 17168800, 2022 N.Y. Slip Op. 06672 (3d Dept.,2022) the Appellate Division held that accepting the mother’s proof as true and according her the benefit of every possible favorable inference, Family Court erred in dismissing the mother’s amended custody modification petition. It found that the mother’s proof regarding injuries suffered by the child during the father’s parenting time, taken together with the mother’s improved parenting abilities and living conditions, demonstrated a change in circumstances sufficient to overcome a motion to dismiss. It agreed with the mother and the appellate attorney for the child that the matter should be remitted to a different judge. It found that Family Court demonstrated an inability to be fair at various stages of the proceeding, starting with the first appearance, where the court indicated that it was inclined to dismiss the mother’s modification petition without a hearing, and the order on appeal made clear that the court had, sua sponte, earlier dismissed several petitions filed by the mother. At the next appearance, the court again indicated that it was disinclined to modify the custody order and later, referring to the mother, stated that “the boy who cried wolf is very large and in charge of this case.” At the opening of the fact-finding hearing, after noting that it had already held several hearings regarding this child, the court stated that if it “g[o]t the feeling as we go through that the burden of that change [in circumstances] is not going to happen ... [the court is] going to cut things off.” Then, at the close of the mother’s proof, Family Court prompted the father to make a motion to dismiss the mother’s petition, which motion the court granted. Based on Family Court’s comments regarding its predispositions and its inappropriate comment regarding the mother’s credibility, Family Court appeared to have prejudged the case. The matter was remitted for a new hearing before a different judge.
November 23, 2022
Appellate Division, Second Department
Repeated and unfounded allegations of sexual abuse are a sufficient change of circumstances to warrant a best interest hearing to determine whether to modify an existing custody arrangement
In Matter of McDowell v Marshall, --- N.Y.S.3d ----, 2022 WL 16827201, 2022 N.Y. Slip Op. 06248 (2d Dept.,2022) the Appellate Division observed that in order to modify an existing custody arrangement, there must be a showing of a subsequent change of circumstances so that modification is required to protect the best interests of the child. The best interests of the child must be determined by a review of the totality of the circumstances. Repeated and unfounded allegations of sexual abuse are a sufficient change of circumstances. Further, where the initial custody arrangement is based upon an agreement between the parties, it is entitled to less weight than the determination by a court. The Family Court properly found that there was a change of circumstances sufficient to change the parties’ custodial arrangement, based upon, inter alia, the mother’s repetition of sexual abuse allegations when she sought medical treatment for the child in October 2019, after those allegations had been determined to be unfounded. Further, the evidence of a hostile relationship between the mother and the father indicated that joint decision-making was untenable, which was also a change of circumstances. It found that Family Court’s determination that there had been a change in circumstances requiring a transfer of primary physical custody and final decision-making authority to the father to ensure the best interests of the child had a sound and substantial basis in the record.
Appellate Division, Fourth Department
A parent’s right to be present for fact-finding and dispositional hearings in termination of parental rights cases is not absolute
In Matter of Briana S.-S.--- N.Y.S.3d ----, 2022 WL 16847920, 2022 N.Y. Slip Op. 06337 ( 4th Dept., 2022) the Appellate Division rejected the fathers contention that the court abused its discretion in denying his attorney’s request for an adjournment when the father was not transported from the facility where he was incarcerated to the courthouse on the first day of the fact-finding hearing. It held that a parent’s right to be present for fact-finding and dispositional hearings in termination cases is not absolute. When faced with the unavoidable absence of a parent, a court must balance the respective rights and interests of both the parent and the child[ren] in determining whether to proceed. Here, the court properly proceeded in the father’s absence in order to provide the children with a prompt and permanent adjudication. Although the father was not present on the first day of the hearing, he was able to assist his attorney in cross-examining the mother after she testified during her case-in-chief, and in cross-examining a caseworker during her continued testimony on the second day of the hearing; the court balanced the need for a prompt adjudication with the father’s interests in its evidentiary rulings by, inter alia, denying petitioner’s application to play an exhibit on the first day of the hearing when the father was not present; and the father’s attorney represented his interests at the hearing. Thus, the father failed to demonstrate that he suffered any prejudice as a result of his absence.
A direct appeal from a summary criminal contempt adjudication is appropriately entertained where there exists an adequate record for appellate review.
In S.P., v. M.P.,.--- N.Y.S.3d ----, 2022 WL 16847699 (Mem), 2022 N.Y. Slip Op. 06377 (4th Dept.,2022) the Appellate Division reversed and vacated an order in this post-divorce child custody action, that fined the mother $1,000 upon findings adjudicating her in criminal contempt pursuant to Judiciary Law § 750 (A) (3). Preliminarily, it concluded that the mother’s challenge to the summary contempt adjudications was properly raised via direct appeal from the order under the circumstances of this case. Although a direct appeal from an order punishing a person summarily for contempt committed in the immediate view and presence of the court ordinarily does not lie and a challenge must generally be brought pursuant to CPLR article 78 to allow for development of the record an appeal from such an order is appropriately entertained where, as here, there exists an adequate record for appellate review. With respect to the merits it observed that because contempt is a drastic remedy, strict adherence to procedural requirements is mandated. It found that the court committed reversible error by failing to afford the mother the requisite opportunity, after being advised that she was in peril of being adjudged in contempt, to offer any reason in law or fact why that judgment should not be pronounced.
“House Rules” imposed by the Supreme Court in a custody case were misguided and erroneous even assuming, arguendo, that the court had the authority to impose such rules
In Burns v Greenjan, --- N.Y.S.3d ----, 2022 WL 17075145, 2022 N.Y. Slip Op. 06577(4th Dept.,2022) a custody modification and enforcement proceeding, at an early appearance, the court suggested imposing its “house rules” on the children and the mother until the children complied with visitation. Those rules barred the children from many activities, including leaving the mother’s home except for school and church, using cell phones and other electronic devices, engaging in any extracurricular activities, and conversing with, socializing with, or visiting family and friends. Without holding a hearing, the court issued temporary orders that increased the father’s visitation time, directed the mother to enforce that visitation, and imposed the house rules. The mother and the Attorney for the Children (AFC) subsequently requested that the court remove the house rules and hold a hearing to evaluate whether the rules and the visitation schedule were in the children’s best interests. The Appellate Division held, inter alia, that the court erred in altering the terms of the parties’ custody and visitation arrangement and in imposing its house rules without conducting a hearing to determine the children’s best interests. It reinstated the provisions of the parties agreement and remitted the matter to Supreme Court for a hearing, including a Lincoln hearing, to determine whether modification of the parties’ custody and visitation arrangement was the children’s best interests. With respect to the imposition of the court’s house rules on the mother and the children, it stated that even assuming, arguendo, that the court had the authority to impose such rules (cf. Ritchie v Ritchie, 184 AD3d 1113, 1115 [4th Dept 2020]), the record failed to demonstrate that the imposition of the house rules in this case was in the children’s best interests.
The Appellate Division held that the court erred in refusing the AFC’s repeated requests for a Lincoln hearing and in otherwise declining to consider the children’s views in determining visitation. One of the parties’ children was a teenager throughout these proceedings, and another entered his teenage years while this matter was being litigated. Although “ ‘the express wishes of children are not controlling, they are entitled to great weight, particularly where[, as here,] their age and maturity ... make[s] their input particularly meaningful’ ” With respect to the merits, it is well settled that “[a] Lincoln hearing serves the vital purpose of allowing a court to ascertain a child’s preference and concerns, as well as corroborating information obtained during the fact-finding hearing” .
The Appellate Division rejected the mother’s contention that the findings of contempt in appeal Nos. 2 and 5 had to be vacated because they were based on violations of the house rules. It is well settled that an appeal from a contempt order that is jurisdictionally valid does not bring up for review the prior order” (Matter of North Tonawanda First v City of N. Tonawanda, 94 AD3d 1537, 1538 [4th Dept 2012]). Thus, the mother was bound to adhere to the orders imposing those rules “[however misguided and erroneous [they] may have been.”
Service of orders by the Family Court via email only, which is not a method of service provided for in Family Court Act § 1113, does not start the time to appeal to run
In Matter of Bukowski v Florentino, --- N.Y.S.3d ----, 2022 WL 17075465 (Mem), 2022 N.Y. Slip Op. 06606(4th Dept.,2022) a proceeding to modify visitation, the Appellate Division stated that inasmuch as the orders in appeal Nos. 1 and 2 indicated that the grandmother may have been served the orders by the court via email only, which is not a method of service provided for in Family Court Act § 1113, and the record did not otherwise demonstrate that she was served by any of the methods authorized by the statute, it could not determine when, if ever, the time to take the appeals began to run, and thus it could not be said that the grandmother’s appeals were untimely Similarly, it could not be said that the grandmother’s appeal in appeal No. 3 was untimely inasmuch as there was no evidence in the record that the grandmother was served with the order by a party or the child’s attorney, that she received the order in court, or that the Family Court mailed the order to her.
Parties to an appeal are entitled to have the record show the facts as they really happened at trial, and should not be prejudiced by an error or omission of the stenographer or the audio recording device
In Wagner v Wagner, --- N.Y.S.3d ----, 2022 WL 17075272 (Mem), 2022 N.Y. Slip Op. 06600 (4th Dept.,2022), matrimonial action, the Appellate Division reversed an order denying plaintiffs motion for a reconstruction hearing to reconstruct portions of the testimony of plaintiff and defendant that could not be transcribed due to malfunctions of the audio recording system. It held that parties to an appeal are entitled to have that record show the facts as they really happened at trial, and should not be prejudiced by an error or omission of the stenographer or the audio recording device. Here, significant portions of the testimony of plaintiff and defendant, including testimony related to child custody and certain other issues, could not be transcribed due to malfunctions of the audio recording system, which would preclude meaningful appellate review of those issues. It remitted the matter to Supreme Court to hold a reconstruction hearing with the parties and any witnesses or evidence the court deems helpful in reconstructing, if possible, those portions of the testimony of plaintiff and defendant that could not be transcribed.
November 16, 2022
Appellate Division, First Department
Court deviating from the presumptive amount of temporary maintenance must explain the reasons for any deviation
In Severny v Severny, --- N.Y.S.3d ----, 2022 WL 16557211 (Mem), 2022 N.Y. Slip Op. 06094 (1st Dept.,2022) the Appellate Division, inter alia, modified the award of temporary maintenance and remanded for reconsideration where the court followed the calculations provided in Domestic Relations Law § 236(B)(5–a) to arrive at a presumptive award of temporary maintenance, but deviated from the presumptive amount without explaining the reasons for any deviation from the result reached by the formula factors.
Appellate Division, Second Department
An application for interim counsel fees by the nonmonied spouse should not be denied or deferred until after the trial, without good cause, articulated by the court in a written decision. Plaintiff waived her objections to the defendant’s failure to meet his disclosure obligations by failing to move for sanctions under CPLR 3126 before filing the note of issue.
In Fugazy v Fugazy, --- N.Y.S.3d ----, 2022 WL 16626149, 2022 N.Y. Slip Op. 06115 (2d Dept.,2022) in March 2017, the plaintiff commenced an action for a divorce and filed a note of issue and certificate of readiness on June 20, 2018. In August 2018, after the defendant moved, inter alia, to compel the defendant to appear for a further deposition and to produce certain documents, and for an award of interim counsel fees In an order dated October 3, 2018, the court, inter alia, denied plaintiff’s cross motion to compel discovery and referred to the trial court her cross motion which was for an award of interim counsel fees. In November 2018, the defendant moved, inter alia, to quash subpoenas served by the plaintiff and for a protective order. In an order dated December 13, 2018, the Supreme Court, among other things, granted the defendant’s motion. The plaintiff appealed from, inter alia, each of these orders.
The Appellate Division held that taking into account all of the relevant circumstances, the Supreme Court improperly referred to the trial court that branch of the plaintiff’s cross motion which was for an award of interim counsel fees (see Domestic Relations Law § 237[a];“Because of the importance of such awards to the fundamental fairness of the proceedings, ... an application for interim counsel fees by the nonmonied spouse in a divorce action should not be denied—or deferred until after the trial, which functions as a denial—without good cause, articulated by the court in a written decision”. Here, the court erred in summarily referring that branch of the plaintiff’s cross motion which was for an award of interim counsel fees to the trial court, which functioned as a denial of that relief, and failed to articulate any reasons, much less good cause, for that determination. The evidence submitted by the plaintiff demonstrated that she was the nonmonied spouse, as the defendant earned five to seven times more income than the plaintiff in recent years. While the defendant argues that the plaintiff has funds available to her, the plaintiff “cannot be expected to exhaust all, or a large portion, of the finite resources available to her in order to pay her attorneys, particularly when the [defendant] is able to pay his own legal fees without any substantial impact upon his lifestyle. In the exercise of discretion, it awarded interim counsel fees of $75,000 subject to reallocation at trial if deemed appropriate by the court.
The Appellate Division held that Supreme Court properly denied the plaintiff’s motion to compel the defendant to appear for a further deposition and to produce certain documents. The plaintiff was aware that the defendant had not responded to the demand for documents or appeared for a further deposition, yet still filed the note of issue and certificate of readiness without seeking relief. The plaintiff therefore waived her objections to the defendant’s failure to meet his disclosure obligations by failing to move for sanctions under CPLR 3126 before filing the note of issue.
The Appellate Division held that Supreme Court properly granted the defendant’s motion which were to quash the plaintiff’s subpoenas and for a protective order. A subpoena duces tecum may not be used for the purpose of general discovery or to ascertain the existence of evidence. Rather, the purpose of a subpoena duces tecum is ‘to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding’. Here, each of the plaintiff’s subpoenas sought information and documents similar to those sought in the plaintiff’s prior motion to compel the production of documents, which the court had denied, and the subpoenas were thus an attempt to circumvent the court’s order and improperly obtain general discovery.
Matter remitted by Appellate Division to reopen custody hearing where new developments had arisen since the orders appealed from were issued
In Matter of Baker v James . --- N.Y.S.3d ----, 2022 WL 16626216, 2022 N.Y. Slip Op. 06125 (2d Dept., 2022) the Family Court, inter alia, awarded the father sole residential custody of the child subject to the mother’s parenting time as set forth in a parental access schedule. The mother appeals. The Appellate Division observed that new developments had arisen since the orders appealed from were issued, which were brought to this Court’s attention by the attorney for the child and acknowledged by the father. These developments included the father’s incarceration, allegations of neglect against the father, and the Family Court’s issuance of an order temporarily placing the child in the custody of the child’s paternal grandmother. In light of the new developments the Appellate Division held that the record was no longer sufficient to review whether the Family Court’s determination regarding custody and parental access was in the best interests of the child. It remitted the matter to the Family Court for a reopened hearing to consider these new facts and thereafter a new determination as to custody and parental access.
Appellate Division, Fourth Department
Time to take appeal under Family Ct Act § 1113 did not start to run where the order was emailed to the father’s attorney. The statute does not provide for service by the court through email or any other electronic means and therefor the father’s appeal was not untimely.
In Matter of Grayson v. Thomas S., . --- N.Y.S.3d ----, 2022 WL 5402859, 2022 N.Y. Slip Op. 05649 (4th Dept, 2022) the Appellate Division, inter alia, reversed the finding of neglect agreeing with the father that the evidence presented at the fact-finding hearing failed to establish by a preponderance of the evidence that he neglected the child. It rejected the argument of petitioner and the Attorney for the Child (AFC) that the father did not take his appeal within the time period allotted by Family Court Act § 1113 and that the appeal should be dismissed as untimely. It observed that pursuant to Family Court Act § 1113, an appeal from a Family Court order “must be taken no later than thirty days after the service by a party or the child’s attorney upon the appellant of any order from which the appeal is taken, thirty days from receipt of the order by the appellant in court or thirty-five days from the mailing of the order to the appellant by the clerk of the court, whichever is earliest.” When service of the order is made by the court, the time to take an appeal does not commence unless the order contains a statutorily required statement and there is an official notation in the court record as to the date and the manner of service of the order” (§ 1113; see Matter of Fraser v. Fraser, 185 A.D.3d 1444, 1445, 128 N.Y.S.3d 713 [4th Dept. 2020]). An appeal as of right is taken by filing the original notice of appeal with the clerk of the Family Court in which the order was made and from which the appeal is taken” (§ 1115). Here, there was no evidence in the record that the father was served with the order of fact-finding and disposition by a party or the child’s attorney, that he received the order in court, or that the Family Court mailed the order to the father. Instead, despite using a form order that provided typewritten check boxes for the two methods of service by the court mentioned in the statute (i.e., in court or by mail) (see Family Ct Act § 1113), the court crossed out the word “mailed” and edited the form to indicate that the order was emailed to, among others, the father’s attorney. The statute does not provide for service by the court through email or any other electronic means and, contrary to the assertions of petitioner and the AFC, traditional mail and email are not indistinguishable. The statute permits court service by mail but does not provide for such service by electronic means (see § 1113). Inasmuch as the father was served the order by the court via email, which is not a method provided for in Family Court Act § 1113, and there was no indication that he was served by any of the methods authorized by the statute, the time to take an appeal did not begin to run and the father’s appeal was not untimely.
Supreme Court
Comity denied Egyptian Judgment of Divorce where Notice and opportunity to be heard, were not provided to the Plaintiff wife in the Egyptian proceeding.
In DAB v MA, --- N.Y.S.3d ----, 2022 WL 16731940, 2022 N.Y. Slip Op. 22341 (Sup Ct, 2022) the parties to this action for a divorce were citizens of Egypt, and both were of the Muslim faith. The Defendant moved from Egypt to the United States on October 7, 2017. Plaintiff moved from Egypt to the United States on or about April 2019. She resided in Staten Island, New York. He resided in Queens County. On or about December 2021, Defendant retained an attorney in Egypt to file a divorce proceeding against the Plaintiff in Egypt. The divorce was styled as a religious or customary divorce, with the full credit of the government of Egypt through their Ministry of Justice. While residing in the United States the defendant executed a power of attorney, granting his attorney authority to represent him in the Egyptian divorce matter without being present. Defendant contended upon information and belief that on Wednesday, February 9, 2022, at 7:00 PM in the presence and under the authority of Abdelrahman Mohammed Jaafar, a legal authorized Clerk, or government official also known as “Maazoun,” within the District of Alraml at the “Personal Status Court”, and in the presence of two adult witnesses, the Defendant (in the within matter) through his attorney, Mamdouh Ali Ahmed, appeared in person before the Maazoun. According to Defendant’s counsel, the Egyptian Certificate of Divorce recited that both parties were Egyptian Nationals with residential addresses in Egypt. The certificate also stated that “after exhausting all means of arbitration pursuant to article 40 of the Maazounin code, Husband confirmed that he had divorced his wife”. The sole requirement was that the Husband utter that he divorced his wife, before the Maazoun and two witnesses after consummation of the marriage. Supreme Court held that the Egyptian Divorce Judgment did not preclude the Supreme Court from adjudicating the underlying divorce complaint under the laws of New York and in conformity with the principles of comity. It was uncontroverted that the Plaintiff wife had no notice that the Defendant husband had engaged a representative to appear before the Maazoun, Ministry of Justice on his behalf, for the purpose of obtaining a Judgment of Divorce. Notice and opportunity to be heard, were not provided to the Plaintiff wife in the Egyptian proceeding. Under these facts, and pursuant to the relevant case law, comity could not be granted to the Egyptian Certificate of Divorce, nor did it reach the standard to be granted comity as an in Rem divorce.
Supreme Court Awards Trial Retainer to AFC observing that . Courts are authorized to direct that a parent who has sufficient financial means to do so pay some or all of the attorney for the child’s fees
In JM, v. RM, 2022 --- N.Y.S.3d ----, 2022 WL 16704582, 2022 N.Y. Slip Op. 22339 (Sup Ct.,2022) the Attorney for the Child moved for an Order: directing that a trial retainer of $15,000 be paid to her in accordance with the Order of Appointment with regard to the pending trial which is being scheduled by the Court at the next court appearance., As of the date of her Affidavit, her retainer had not fully been paid, and there was an outstanding balance due to her. She argued that if she did not receive a trial retainer, she will have to spend multiple hours preparing for trial and participating in same without being paid. She argued that the Defendant has retained two attorneys since her appointment, but has failed to pay his full share of her retainer; that the Defendant was the monied spouse; and that her currently hourly rate is $350 per hour and a $15,000 trial retainer is appropriate. The Court noted that pursuant to the first Order Appointing an Attorney for the Child it directed that a $5,000.00 retainer be remitted to the prior AFC. After she was relieved as counsel the Court issued a second Order Appointing an Attorney for the Child dated March 29, 2022, appointing this Attorney as the AFC. In that order it directed that a $4,000.00 retainer be remitted to her. Supreme Court granted her application pointing out that the child was entitled to representation to protect its best interests. It observed that courts are authorized to direct that a parent who has sufficient financial means to do so pay some or all of the attorney for the child’s fees (citing, inter alia, Matter of Plovnick v. Klinger, 10 A.D.3d 84, 89, 781 N.Y.S.2d 360 [2004]; see 22 NYCRR 36.4; Judiciary Law § 35 [3]; Rupp-Elmasri v. Elmasri, 8 A.D.3d 464, 778 N.Y.S.2d 289 [2004])). The Court held that the AFC was entitled to a trial retainer and that trial retainer of $10,000.00 was an appropriate trial retainer to be paid to the AFC. Neither party had been directed to pay 100% of the AFC’s fees or this trial retainer, and instead are paying it pursuant to the Order of Appointment, which was 70% by the Defendant and 30% by the Plaintiff.
The party seeking to restore an action to the calendar after it is dismissed has the burden of establishing “good cause” for the delay
In Iyageh v Iyageh, --- N.Y.S.3d ----, 2022 WL 14725215, 2022 N.Y. Slip Op. 22327 (Sup. Ct.,2022) the Court denied the motion to restore a matter to the calendar where there were no unemancipated children and neither party submitted a judgment of divorce for twelve (12) years after they entered into a stipulation of settlement and proceeded to inquest. Supreme Court observed that pursuant to 22 NYCRR § 202.48 (a), a proposed judgment or order that must be settled or submitted on notice must be signed within 60 days of the decision’s signing and filing. Pursuant to 22 NYCRR § 202.48 (b), when parties fail to submit an order or judgment in a timely manner their action is to be deemed abandoned, unless there is good cause reason for the delay. Pursuant to CPLR § 3404, Supreme Court cases that are struck from the calendar and not restored within one (1) year are deemed abandoned and dismissed without costs for neglect to prosecute. A dismissed action may be restored to the calendar beyond the one (1) year of the statute if the plaintiff establishes a reasonable excuse for the failure to prosecute the action and a lack of prejudice to the defendants (Cawthon v. Cawthon, 276 A.D.2d 661, 661, 714 N.Y.S.2d 335 [2d Dept. 2000]). The party seeking to restore an action to the calendar after it is dismissed has the burden of establishing “good cause” for the delay (Madigan v. Klumpp, 173 A.D.2d 593, 593—94, 570 N.Y.S.2d 176 [2d Dept. 1991][the Appellate Division found that the husband failed to show good cause for not submitting the judgment of divorce for over a year where he asserted he believed the wife was responsible for filing]; see also Seeman v. Seeman, 154 A.D.2d 584, 585—86, 546 N.Y.S.2d 413 (2d Dept. 1989)[no good cause found where law firm misplaced or forgot to file the judgment of divorce for more than two (2) years]). Here, plaintiff offered no explanation for his failure to file a proposed judgment of divorce packet for twelve (12) years.
Links to Statewide Appellate Division Rules of Practice, Electronic Filing Rules and Local Rules (As of November 20, 2022)
Appellate Division Statewide Rules of Practice (22 NYCRR Part 1250) (As amended November 25, 2019)
Appellate Division Statewide Electronic Filing Rules (Part 1245) (December 12, 2017)
Appellate Division First Department –
Appellate Division Rules of Practice of the First Department - (22 NYCRR) Part 600
Appellate Divison Second Department -
Appellate Division Rules of Practice of the Second Department (22 NYCRR 670) (As amended July 1, 2020)
Appellate Divison Second Department E-filing Technical Guidelines
Appellate Division, Third Department –
Appellate Division Rules of Practice in the Third Department (Part 850) (As amended July 15, 2022)
Appellate Divison, Fourth Department -
Appellate Division Rules of Practice in the Fourth Department (22 NYCRR Part 1000) (As amended August 4, 2022)
November 1, 2022
Court of Appeals
Court of Appeals holds that the Interstate Compact on the Placement of Children (ICPC) does not apply to out-of-state, noncustodial parents seeking custody of their children who are in the custody of New York social services agencies.
In the Matter of D.L., v. S.B. --- N.E.3d ----, 2022 WL 14123151, 2022 N.Y. Slip Op. 05940 (2022) the Court of Appeals held that the Interstate Compact on the Placement of Children (ICPC) an agreement among the states to follow certain procedures in connection with sending children across state borders “for placement in foster care or as a preliminary to a possible adoption” (Social Services Law § 374–a [1] [art III] [a]) does not apply to out-of-state, noncustodial parents seeking custody of their children who are in the custody of New York social services agencies.
Petitioner father, a North Carolina resident, and respondent mother, a New York resident, were the parents of the subject child. In 2012, respondent Suffolk County Department of Social Services (DSS) removed the child from the custody of mother, who admitted neglecting the child, and placed the child in foster care. Father exercised his right to appear in the neglect proceeding and, in 2013, an application was made under the ICPC to North Carolina for the approval of father’s home in that state as a suitable placement for the child. The relevant North Carolina authority denied the ICPC request. The child remained in foster care with the goal of reunification with mother and, according to father, he maintained contact with and continued to visit with the child. Thereafter, in 2017, the father commenced these custody proceedings, arguing that it was in the child’s best interests to award him sole custody. DSS argued that the child could not be placed with father in light of the North Carolina authority’s 2013 refusal to consent to the placement. Family Court dismissed father’s petitions without conducting a hearing. It held in pertinent part that the requirements of the ICPC applied to placement of the child with father, even though he was an out-of-state noncustodial parent, because the child was in the custody and care of DSS in New York. The Appellate Division affirmed (183 A.D.3d 565, 121 N.Y.S.3d 644 [2nd Dept. 2020]), holding that Family Court properly determined that the ICPC applied because “the child was in the custody of DSS and ... father resided in North Carolina” The Court concluded that the petitions for custody were correctly dismissed without a hearing inasmuch as the relevant North Carolina authority denied approval of father’s 2013 ICPC request.
The Court of Appeals reversed. It observed that the ICPC is an agreement among the 50 states, the District of Columbia, and the U.S. Virgin Islands. It is a non-federal agreement and is “construed as state law” in each adopting state (McComb v. Wambaugh, 934 F.2d 474, 479 [3d Cir 1991]).The ICPC governs the “interstate placement of children” (Social Services Law § 374–a [1] [art I]). The ICPC provides at the outset that it applies when a state agency seeks to send children to a receiving state to be placed in foster care or for possible adoption. Specifically, article III of the ICPC provides: “(a) No sending agency shall send ... into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this article ...“(b) Prior to sending ... any child ... into a receiving state for placement in foster care or as a preliminary to a possible adoption, the sending agency shall furnish the appropriate public authorities in the receiving state written notice ...” (emphasis added). (Social Services Law § 374–a [art III] [a], [b]). “Placement,” in turn, is defined as “the arrangement for the care of a child in a family free or boarding home or in a child-caring agency or institution” (id. § 374–a [art II] [d]).
The Court of Appeals observed that by its terms, the ICPC governs the out-of-state “placement” of children “in foster care or as a preliminary to possible adoption” (Social Services Law § 374–a [1] [art III] [a] & [b]). The language of the statute thus unambiguously limits its applicability to cases of placement for foster care or adoption—which are substitutes for parental care that are not implicated when custody of the child is granted to a noncustodial parent. Applying the ICPC to noncustodial parents would be inconsistent with the statutory requirement that, when a child is placed pursuant to the ICPC, “[t]he sending agency shall continue to have financial responsibility for support and maintenance of the child during the period of the placement” (Social Services Law § 374–a [1] [art V] [a]). As the United States Court of Appeals for the Third Circuit observed, “[t]o construe the return of a child to [a] parent as a ‘placement’ within the Compact would result in the anomalous situation of imposing a financial obligation upon a sending state that supersedes parents’ duty to support their children” (McComb, 934 F.2d at 480). There is nothing in the statutory language to indicate that the ICPC was intended to apply to out-of-state parents seeking custody of their children and the statutory text confines application of the ICPC to children placed in foster care or preliminary adoptive homes. It noted that its decision in Matter of Shaida W., 85 N.Y.2d 453, 626 N.Y.S.2d 35, 649 N.E.2d 1179 [1995]) did not compel a contrary conclusion. In that case, the question before the Court was whether the ICPC applied when children, who were in the care and custody of a New York social services agency, were taken to another state by their grandmother after the agency placed the children into temporary foster care with the grandmother. Although article VIII(a) provides that the ICPC does not apply to “[t]he sending or bringing of a child into a receiving state by [a] parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or [a] guardian and leaving the child with any such relative or non-agency guardian in the receiving state” (Social Services Law § 374–a [1] [art VIII] [a]), it explained that “the children were not legally ‘sent’ to California by their grandmother”. Rather, “[t]he official custodian” of the children was the “Department of Social Services of New York City,” and it was the agency that “authorized the children to be ‘sent’ ” to California within the meaning of the statute. That is, the children were sent by a social services agency to a “kinship foster care placement” in another state and, as such, this Court concluded that the ICPC applied. Here, in contrast, placing a child with an out-of-state parent did not involve foster care or adoption and, thus, Shaida W. did not control. The Court pointed out that its reading of the ICPC as being applicable only to placement of a child for foster care or as a preliminary to adoption, and not to custody of a noncustodial parent, comports with the intent reflected in the Compact’s legislative history and the underlying statutory purpose. Although the ICPC does not apply to placement with a parent, the Family Court Act contains other effective means to ensure the safety of a child before awarding custody to an out-of-state parent. Family Court retains jurisdiction over custody proceedings and has a broad array of powers under the Family Court Act to ensure a child’s safety.
Appellate Division, First Department
DRL § 237, applies to parties litigating the issue of standing as a “parent” under DRL § 70. Where the award was issued toward the end of litigation and covered almost all of respondent’s claimed counsel fees, it was, in effect, a final order and Petitioner was entitled to an evidentiary hearing as to the extent and value of respondent’s counsel fees
In Matter of Gunn v Hamilton, --- N.Y.S.3d ----, 2022 WL 10207780, 2022 N.Y. Slip Op. 05790 (1st Dept.,2022) the Appellate Division pointed out that in Matter of Kelly G. v. Circe H., 178 A.D.3d 533, 117 N.Y.S.3d 171 (1st Dept. 2019) it determined that Domestic Relations Law § 237, in consonance with the Court of Appeals’ decision in Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488 (2016), applies to parties litigating the issue of standing as a “parent” under Domestic Relations Law § 70. It agreed with petitioner that the motion court’s framing of the counsel fee award as an “interim” order was incorrect. Given that the award was issued toward the end of litigation and covered almost all of respondent’s claimed counsel fees, costs, and expenses, approximately $2.7 million, it found that the fee award was, in effect, a final order. Accordingly, petitioner, who vigorously challenged the motion, was entitled to an evidentiary hearing as to the extent and value of respondent’s counsel fees. It vacated the order and remand the matter to the motion court for an evidentiary hearing on reasonable counsel fees.
The Appellate Division also vacated the finding of criminal contempt premised on petitioner’s noncompliance with a June 28, 2021 order. Even if the order were not vacated, the procedural defects apparent in this proceeding warranted reversal. The record made clear that the court held a criminal contempt proceeding. Accordingly, petitioner was entitled to the same rights afforded a criminal defendant, including a right to be heard, to have her guilt proven beyond a reasonable doubt, and to meaningful representation of counsel. Petitioner did not receive the benefit of these procedural safeguards.
Respondent was not denied due process when the Family Court sua sponte conformed the petition to the proof adduced during the fact-finding hearing
In Matter of Jose M. R., v. Arian S., --- N.Y.S.3d ----, 2022 WL 10207779, 2022 N.Y. Slip Op. 05816 (1st Dept.,2022) a family offense proceeding the Appellate Division held that Respondent was not denied due process when the Family Court sua sponte conformed the petition to the proof adduced during the fact-finding hearing, as he could not have been surprised or prejudiced by his own admissions (see Matter of Oksoon K. v. Young K., 115 AD3d 486, 487 [1st Dept 2014], lv denied, 24 NY3d 902 [2014] ).
A parent who has complied with the recommended service plan has failed to plan for the child’s future if she “fails to gain insight into her parenting problems or take responsibility for the issues that prompted foster care placement in the first place.
In Matter of Patrice H. W., --- N.Y.S.3d ----, 2022 WL 10207773, 2022 N.Y. Slip Op. 05820 (1st Dept.,2022) the Appellate Division found that the finding of permanent neglect with respect to the child Patrice was supported by clear and convincing evidence. Respondent failed to plan for the child, evidenced by her refusal to acknowledge the problems that led to the foster care placement of the child in the first place, blaming the children, the biological mother, and the agency and denying that the children were subject to sexual abuse. Regardless of whether a parent has complied with the recommended service plan, she has failed to plan for the child’s future if she “fails to gain insight into her parenting problems or take responsibility for the issues that prompted foster care placement in the first place.
Finding of neglect against the mother was supported by evidence establishing that she refused to enforce a final order of protection issued against her boyfriend and in favor of the child in a prior neglect proceeding
In Matter of Taveon J.,--- N.Y.S.3d ----, 2022 WL 4830386, 2022 N.Y. Slip Op. 05512 (1st Dept.,2022) the Appellate Division found that the finding of neglect against the mother was supported by a preponderance of the evidence establishing that she placed the children’s physical and psychological safety in imminent risk of impairment by refusing to enforce a final order of protection issued against her boyfriend and in favor of the child Taveon in a prior neglect proceeding. Taveon, who was then 11 years old, was heard crying on a tape of a 911 call, in which he reported that the mother’s boyfriend allegedly choked her and then threatened to kill Taveon; the caseworker also testified that Taveon was crying at the police station after the incident. This evidence established, among other things, that the mother risked Taveon’s emotional health by failing to enforce the order of protection issued on his behalf.
Appellate Division, Second Department
Where a material term of a stipulation is left for future negotiations the agreement constituted “a mere agreement to agree,” is unenforceable
In Pinto v Pinto, --- N.Y.S.3d ----, 2022 WL 6850257, 2022 N.Y. Slip Op. 05728 (2d Dept.,2022) the parties stipulation of settlement that was incorporated, but not merged, into the judgment of divorce recited that it was the parties’ intention that the children would attend college, and provided that the children, with both parties’ cooperation, would apply for “merit and need based financial aid” to cover the cost of attending college. The stipulation further provided that, “should there be necessary costs and expenses once financial aid, merit aid and scholarships are exhausted[,] the parties shall consult and try to reach an agreement on payment of these cost[s] and expenses at the time those cost[s] and expenses arise. If the parties cannot agree they can address the issue in a Court of competent jurisdiction.”
In 2019, the plaintiff moved, inter alia, in effect, to direct the defendant to reimburse the plaintiff for the repayment of one-half of the total amount of the student loans incurred for the payment of the college costs and expenses for the parties’ children, based on the above-quoted provision of the stipulation. The plaintiff averred, inter alia, with the defendant about her contributing to the cost of the children’s education on at least two occasions while the children were attending college, and the defendant deferred discussion of the matter to a later time. The defendant averred that the parties consulted with each other on the issue of the children’s college expenses, that they agreed that the plaintiff would pay those expenses, and that the plaintiff did so. Supreme Court, denied plaintiff’s motion. The Appellate Division affirmed.
The Appellate Division held that the provision of the stipulation upon which the plaintiff relied in seeking reimbursement from the defendant required only that “the parties shall consult and try to reach an agreement on payment of [the children’s college-related] cost[s] and expenses.” This provision did not identify an amount or percentage of such costs or expenses to be paid by either party, and did not impose an obligation upon either party to make any such payment. Rather, “a material term [was] left for future negotiations” (Joseph Martin, Jr., Delicatessen, Inc. v. Schumacher, 52 N.Y.2d 105, 109, 436 N.Y.S.2d 247, 417 N.E.2d 541). Thus, the subject provision constituted “a mere agreement to agree,” and, as such, was unenforceable (id. at 109, 436 N.Y.S.2d 247, 417 N.E.2d 541; see Silverman v. Silverman, 249 A.D.2d 378, 379, 671 N.Y.S.2d 145; Flanel v. Flanel, 152 A.D.2d 536, 543 N.Y.S.2d 501).
Where there is no right to counsel pursuant to FCA § 262, claims of ineffective assistance of counsel in civil litigation will not be entertained absent extraordinary circumstances
In Matter of Buljeta v Fuchs, --- N.Y.S.3d ----, 2022 WL 6849583, 2022 N.Y. Slip Op. 05687 (2d Dept.,2022) the Appellate Division held that situations where there is no statutory right to counsel pursuant to Family Court Act § 262, claims of ineffective assistance of counsel in the context of civil litigation will not be entertained where extraordinary circumstances are absent (see Matter of Nassau County Dept. of Social Servs. v. King, 149 A.D.3d 942, 943, 53 N.Y.S.3d 130; Matter of Lorys v. Powell, 116 A.D.3d 1047, 1048, 983 N.Y.S.2d 892).
Where the father’s failure to pay child support is not willful a money judgment should be entered in favor of the mother for the amount of child support arrears
In Matter of Santman v Schonfeldt, --- N.Y.S.3d ----, 2022 WL 6846934 (Mem), 2022 N.Y. Slip Op. 05693 (2 Dept.,2022) a child support enforcement proceeding, the Family Court denied the petition and dismissed the proceeding. The Appellate Division found that the mother presented evidence that the father had made only one child support payment during the relevant period, and that he owed basic child support of $19,591.43. Therefore, the mother met her prima facie burden. The father testified, and presented proof, that he intended to pay, but his employer and/or the Support Collection Unit had not properly followed through with the wage garnishment procedure. The Support Magistrate found the father’s testimony credible. The Appellate Division held that under the circumstances of this case, the father’s showing was sufficient to establish that his failure to pay was not willful. Nevertheless, as there was competent proof at the hearing that the father failed to obey a lawful order of child support (see Family Ct Act § 454[1]), a money judgment should have been entered in favor of the mother for the amount of child support arrears that accrued during the relevant period (see Family Ct Act §§ 454[2][a]; 460[1]). It remitted the matter to the Family Court, for the entry of an appropriate money judgment.
Denial of husbands pendente lite motion to sell portion of wine collection to pay marital debt was in keeping with purposes of DRL § 236(B)(2)(b)(1), to preserve the status quo and to ensure that neither party would be prejudiced
In Davidoff v Davidoff, --- N.Y.S.3d ----, 2022 WL 10781782 (Mem), 2022 N.Y. Slip Op. 05835 (2d Dept.,2022) in July 2018, the plaintiff commenced this action for a divorce. In October 2018, the Supreme Court denied the defendants motion inter alia, for permission to sell a portion of the parties’ wine collection pendente lite in order to pay marital debt and expenses. The Appellate Division affirmed. It observed that Domestic Relations Law § 236(B)(2)(b)(1) provides, in pertinent part, that during the pendency of a matrimonial action, “neither party shall sell ... or in any way dispose of, without ... consent of the other party in writing, or by order of the court, any property (including ... personal property ...) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with this action.” The record supported the Supreme Court’s determination The parties’ affidavits submitted in connection with the motion reflected factual disputes regarding, inter alia, the size and estimated value of the wine collection, the parties’ past course of conduct during the marriage with respect to sales from the wine collection, and the parties’ respective alleged irresponsibility or responsibility with regard to household finances. In light of these factual disputes, denial of the subject branch of the motion was appropriate and in keeping with the statutory purposes of Domestic Relations Law § 236(B)(2)(b)(1), to preserve the status quo and to ensure that neither party would be prejudiced by the potential “unilateral dissipation of marital assets”.
Second Department reiterates rule that modifications of pendente lite awards should rarely be made by an appellate court and then only under exigent circumstances
In Davidoff v Davidoff, --- N.Y.S.3d ----, 2022 WL 10778464 (Mem), 2022 N.Y. Slip Op. (2d Dept.,2022) the parties were married in 2008 and had two children. In July 2018, the plaintiff commenced the action for a divorce. In an order dated January 4, 2021, the Supreme Court, inter alia, granted the plaintiff’s motion for an award of pendente lite child support to the extent of directing the defendant to pay pendente lite child support in the sum of $5,059 per month, retroactive pendente lite child support in the sum of $40,472 at a rate of $1,700 per month, and 100% of the children’s add-on expenses. The Appellate Division affirmed. It held that modification of the pendente lite child support award was not warranted. Modifications of pendente lite awards should rarely be made by an appellate court and then only under exigent circumstances, such as where a party is unable to meet his or her financial obligations or justice otherwise requires. Any perceived inequity in the award of pendente lite child support can best be remedied by a speedy trial, at which the parties’ financial circumstances can be fully explored. The defendant failed to demonstrate the existence of any exigent circumstances warranting a modification of the pendente lite child support award made by the Supreme Court.
Appellate Division, Third Department
Presumption that visitation with a noncustodial parent is in the best interests of the child, may be overcome where the party opposing visitation sets forth compelling reasons and substantial evidence that such visitation would be detrimental or harmful to the child’s welfare
In Matter of Ajmal I v Latoya J, --- N.Y.S.3d ----, 2022 WL 11379771, 2022 N.Y. Slip Op. 05912 (3d Dept.,2022) pursuant to a February 2012 order, the mother was awarded sole legal and physical custody of the child, while the father, who had failed to appear was granted the right to petition for custody and/or visitation in the future. The father left New York in 2009 and had not resided in the state since. The parties’ relationship had generally been tense. Given the father’s prior menacing and assaultive behavior toward the mother, she remained afraid of him and refused to give him her address. In November 2019, the mother learned that the father had offered money on social media to anyone who gave him the mother’s address, then posted that he had obtained the address and would “[s]ee [her] soon.” The mother filed a family offense petition seeking an order of protection against the father. The father responded by filing a custody modification petition and seeking, for the first time since the issuance of the 2012 custody order, visitation with the child. Family Court issued an order of protection in favor of the mother. Family Court then conducted a fact-finding hearing on the father’s modification petition, and granted the father two hours of supervised visitation.
The Appellate Division agreed with the mother and the attorney for the child that there was no basis for the award of visitation here. It reversed and dismissed the father’s petition in its entirety. It held that while visitation with a noncustodial parent is presumed to be in the best interests of the child, that “presumption may be overcome where the party opposing visitation sets forth compelling reasons and substantial evidence that such visitation would be detrimental or harmful to the child’s welfare. This standard of substantial proof should not be interpreted in such a way as to heighten the burden, of the party who opposes visitation, to rebut the presumption by a preponderance of the evidence. ( Matter of Granger v. Misercola, 21 N.Y.3d 86, 92, 967 N.Y.S.2d 872 [2013]). As such, the party opposing visitation will meet his or her burden with sworn testimony or documentary evidence that visitation would be harmful to the child or that the noncustodial parent has forfeited the right of access. It was undisputed that the father had not lived with the child in over a decade and had only infrequently visited the child due to, among other things, his moving out of the area and frequently relocating around the United States. The father made no effort to seek a formal award of visitation until 2019, more than seven years after the issuance of the 2012 custody order and over two years after he had last seen the child. This failure by the father to seek a visitation order or otherwise “avail himself of opportunities for visitation over a lengthy period of time is appropriately taken into account in considering whether visitation is appropriate. Moreover, the mother testified as to how the father behaved in an irresponsible and harmful manner on the occasions when he did interact with the child. The mother described how, during a 2014 visit with the child during his winter break from school, the father cut off contact with her and left the child with relatives so that he could attend a party and travel to New York City, leaving the mother unaware of the child’s whereabouts until the child called her several days later. The father did not see the child again until a 2017 family trip to an amusement park, and the mother testified that he upset the child then by, among other things, live streaming the visit, including the child’s personal conversations, over social media. The mother further set forth how the father did not have frequent electronic contact with the child after that visit and, when that contact did occur, the child was upset by it. The attorney for the child confirmed that the teenage child was upset by interactions with the father for a variety of reasons and did not wish to see him. The child’s preference to have no in-person contact with the father was not dispositive, but is entitled to “considerable weight” given the child’s age . The foregoing satisfied the mother’s burden of establishing that any visitation with the father would be harmful to the child.
Change in circumstances standard does not apply where the parties’ separation agreement was never memorialized in a court order or otherwise judicially sanctioned. Fundamental purpose” of Lincoln hearing is to ascertain a child’s preferences and concerns.
In Theodore P v Debra P, 2022 WL 11378159 (3d Dept.,2022) pursuant to a March 2018 separation agreement, which was to be incorporated but not merged into a subsequent judgment of divorce, the parties agreed to joint legal custody of the child and to share physical custody on a “substantially equal basis in a mutually acceptable manner.” The father commenced a divorce action in November 2019 requesting that relief, while the mother sought sole legal and physical custody. The Appellate Division rejected the father’s argument that the Supreme Court erred in proceeding directly to a best interests analysis without first considering whether a change in circumstances occurred since execution of the separation agreement. A party seeking to modify a judicially sanctioned custody arrangement must make a threshold showing of a change in circumstances that warrants an inquiry into whether modification of the arrangement is in the child’s best interests. However, that standard does not apply where the parties’ separation agreement was never memorialized in a court order or otherwise judicially sanctioned. As such, the separation agreement was but a factor to consider in resolving the custody dispute. It followed that the court did not err in denying the father’s motion for a directed verdict based upon the mother’s alleged failure to demonstrate changed circumstances.
The Appellate Division rejected the fathers argument that Supreme Court abused its discretion in holding a Lincoln hearing because there was no trial testimony requiring corroboration by the child. Corroboration of trial testimony and documentary evidence may be “a recognized purpose of a Lincoln hearing,” but the “fundamental purpose” of such a hearing “is to ascertain a child’s preferences and concerns.” It concluded that the Lincoln hearing was a provident exercise of the court’s discretion.
Supreme Court
Supreme Court holds that in determining the best interests of a companion animal under DRL § 236 [B] [5] [d] [15], the reviewing court should consider the totality of circumstances by weighing relevant factors applicable to the care of a companion animal
In L.B., v. C.C.B., --- N.Y.S.3d ----, 2022 WL 7855133, 2022 N.Y. Slip Op. 22320 (Sup Ct, 2022) an action for a divorce the parties were married for ten years. The Supreme Court pointed out that the sole significant asset contested by the parties was custody and possession of their two dogs. It observed that effective October 25, 2021, DRL § 236 [B] [5] [d] [15] provides the standard to apply in pet custody cases. It requires courts to consider “the best interest” of a companion animal when awarding possession in a divorce or separation proceeding. It held that in determining the best interests of a companion animal under DRL section 236 [B] [5] [d] [15], the reviewing court should consider the totality of circumstances by weighing relevant factors applicable to the care of a companion animal. Salient factors for a court to consider include: the involvement, or absence, of each party in the companion animal’s day-to-day life; the availability and willingness of each party to care for the companion animal; each party’s involvement in health and veterinary care decisions; the quality of each party’s respective home environment; the care and affection shown towards the companion animal; and each party’s fitness and caretaking abilities. No single factor is dispositive. It held that in determining equitable distribution of the parties’ companion animals, the court was guided by what is in the doges best interest. In weighing the factors relevant to the dogs best interest, the court must also evaluate the testimony, character, and sincerity of all the parties involved (citing “see generally” Eschbach, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260). After weighing the factors that would further the dogs best interest, including factors such as which party was primarily responsible for their day-to-day needs and for maintaining their health and veterinary care; which party, if any, spends more time with the dogs on a regular basis; and the quality of the home environment as one in which the dogs would “live, prosper, love and be loved,” as well as evaluating the testimony, character and sincerity of the parties, the court found that it was in the dogs best interest to remain together in Defendant’s sole care. The care and custody of the parties’ Rottweilers was awarded to Defendant.
Administrative Order AO/141a/22 Amended New Rules Governing Matrimonial Actions
22 NYCRR 202.16, 22 NYCRR 202.16-a, 22 NYCRR 202.16-b, and 22 NYCRR 202.18 of the Uniform Rules for the Supreme Court and the County Court (“Uniform Rules”) are the “matrimonial rules”. Effective July 1, 2022, 22 NYCRR 202.16 (the matrimonial rules) were revised to, among other things specifically incorporate 22 NYCRR Part 202 (See AO142/22, amended on June 13, 2022) which contains many of the commercial division rules effective February 1, 2021.
On July 27, 2022, Administrative Order AO/141a/22 revised the Uniform Civil Rules for the Supreme Court and the County Court including harmonization with the rules governing matrimonial actions effective immediately to supersede solely the provisions of AO/270/20 that are inconsistent with its terms and provisions. The revision corrected typographical errors in AO/141/22.
Administrative order AO 370/21, amended Rules Governing the Consensual Electronic filing Matrimonial Actions
Administrative order AO 370/21, effective December 21, 2021, contains the current list of counties in which e-filing is permitted in matrimonial actions. Except as otherwise required by AO 370/21 or its Appendix B, the consensual e-filing rules in 22 NYCRR § 202.5-b apply. Appendix B, effective December 21, 2021 contains amended Rules Governing the Consensual Electronic filing of Matrimonial Actions in the Supreme Court.
Matrimonial actions
Matrimonial actions are defined in Administrative order AO 370/21, Appendix B as those actions set forth in CPLR § 105(p) and Domestic Relations Law § 236, as well as plenary actions for child support, custody or visitation, an order of protection or an application under the Child Parent Security Act where: the action is contested, and addresses issues including, but not limited to, alimony, counsel fees, pendente lite, maintenance, custody and visitation, child support or the equitable distribution of property or the action is uncontested; or the action is a post-judgment application that either (1) addresses an underlying matrimonial action that was commenced electronically, or (2) is electronically initiated with the purchase of a new index number.
No papers or documents filed by electronic means In matrimonial actions are available to the public. The existing personal service requirements in the domestic relations law, family court act, or civil practice law and rules are not abrogated.
Forensic evaluations may not be efiled
Unless otherwise directed by the court, evaluations or investigations of the parties or a child by a forensic mental health professional (including notes) and reports by a probation service or child protective service in proceedings involving custody, visitation, neglect or abuse and other matters involving children may not be filed electronically.
Matrimonial post-judgment applications
Service of the initiating documents in post-judgment applications subject to consensual e-filing must be effectuated in hard copy and accompanied by a notice of electronic filing (for post-judgment matrimonial proceedings). Proof of hard copy service must be filed by electronic means.
Recent Legislation - Family Court Act § 842-a
Laws of 2022, Ch 577, amended the opening paragraph Family Court Act § 842-a, subdivisions 1, 2 and 3 effective October 18, 2022 by requiring the court to inquire of the respondent and the protected party as to the existence and location of a firearm owned or possessed by the defendant upon issuance of a temporary order of protection.
Laws of 2022, Ch 577, amended Family Court Act 842-a (1) opening paragraph, effective October 18,2022, to read as follows:
Suspension of firearms license and ineligibility for such a license
upon the issuance of a temporary order of protection. Whenever a tempo-
rary order of protection is issued pursuant to section eight hundred
twenty-eight of this article, or pursuant to article four, five, six,
seven or ten of this act the court shall inquire of the respondent and,
outside of the presence of the respondent, the petitioner or, if the
petitioner is not the protected party, any party protected by such
order, if the court has reason to believe that such petitioner or
protected party would have actual knowledge or reason to know such
information, as to the existence and location of any firearm, rifle or
shotgun owned or possessed by the respondent and:
Laws of 2022, Ch 577, amended Family Court Act 842-a (2) opening paragraph, effective October 18,2022, to read as follows:
Revocation or suspension of firearms license and ineligibility for
such a license upon the issuance of an order of protection. Whenever an
order of protection is issued pursuant to section eight hundred forty-
one of this part, or pursuant to article four, five, six, seven or ten
of this act the court shall inquire of the respondent and, outside of
the presence of the respondent, the petitioner or, if the petitioner is
not the protected party, any party protected by such order, if the court
has reason to believe that such petitioner or protected party would have
actual knowledge or reason to know such information, as to the existence
and location of any firearm, rifle or shotgun owned or possessed by the
respondent and:
Laws of 2022, Ch 577, amended Family Court Act 842-a (3) opening paragraph, effective October 18,2022, to read as follows:
Revocation or suspension of firearms license and ineligibility for
such a license upon a finding of a willful failure to obey an order of
protection or temporary order of protection. Whenever a respondent has
been found, pursuant to section eight hundred forty-six-a of this part
to have willfully failed to obey an order of protection or temporary
order of protection issued pursuant to this act or the domestic
relations law, or by this court or by a court of competent jurisdiction
in another state, territorial or tribal jurisdiction, in addition to any
other remedies available pursuant to section eight hundred forty-six-a
of this part the court shall inquire of the respondent and, outside the
presence of the respondent, the petitioner or, if the petitioner is not
the protected party, any party protected by such order, if the court has
reason to believe that such petitioner or protected party would have
actual knowledge or reason to know such information, as to the existence
and location of any firearm, rifle or shotgun owned or possessed by the
respondent and:
October 26, 2022
Recent Legislation – Family Court Act § 842-a
Laws of 2022, Ch 577, amended the opening paragraph Family Court Act § 842-a, subdivisions 1, 2 and 3 effective October 18, 2022 by requiring the court to inquire of the respondent and the protected party as to the existence and location of a firearm owned or possessed by the defendant upon issuance of a temporary order of protection.
Laws of 2022, Ch 577, amended Family Court Act 842-a (1) opening paragraph, effective October 18,2022, to read as follows:
Suspension of firearms license and ineligibility for such a license
upon the issuance of a temporary order of protection. Whenever a tempo-
rary order of protection is issued pursuant to section eight hundred
twenty-eight of this article, or pursuant to article four, five, six,
seven or ten of this act the court shall inquire of the respondent and,
outside of the presence of the respondent, the petitioner or, if the
petitioner is not the protected party, any party protected by such
order, if the court has reason to believe that such petitioner or
protected party would have actual knowledge or reason to know such
information, as to the existence and location of any firearm, rifle or
shotgun owned or possessed by the respondent and:
Laws of 2022, Ch 577, amended Family Court Act 842-a (2) opening paragraph, effective October 18,2022, to read as follows:
Revocation or suspension of firearms license and ineligibility for
such a license upon the issuance of an order of protection. Whenever an
order of protection is issued pursuant to section eight hundred forty-
one of this part, or pursuant to article four, five, six, seven or ten
of this act the court shall inquire of the respondent and, outside of
the presence of the respondent, the petitioner or, if the petitioner is
not the protected party, any party protected by such order, if the court
has reason to believe that such petitioner or protected party would have
actual knowledge or reason to know such information, as to the existence
and location of any firearm, rifle or shotgun owned or possessed by the
respondent and:
Laws of 2022, Ch 577, amended Family Court Act 842-a (3) opening paragraph, effective October 18,2022, to read as follows:
Revocation or suspension of firearms license and ineligibility for
such a license upon a finding of a willful failure to obey an order of
protection or temporary order of protection. Whenever a respondent has
been found, pursuant to section eight hundred forty-six-a of this part
to have willfully failed to obey an order of protection or temporary
order of protection issued pursuant to this act or the domestic
relations law, or by this court or by a court of competent jurisdiction
in another state, territorial or tribal jurisdiction, in addition to any
other remedies available pursuant to section eight hundred forty-six-a
of this part the court shall inquire of the respondent and, outside the
presence of the respondent, the petitioner or, if the petitioner is not
the protected party, any party protected by such order, if the court has
reason to believe that such petitioner or protected party would have
actual knowledge or reason to know such information, as to the existence
and location of any firearm, rifle or shotgun owned or possessed by the
respondent and:
Court of Appeals
Court of Appeals holds that the Interstate Compact on the Placement of Children (ICPC) does not apply to out-of-state, noncustodial parents seeking custody of their children who are in the custody of New York social services agencies.
In the Matter of D.L.,v. S.B. --- N.E.3d ----, 2022 WL 14123151, 2022 N.Y. Slip Op. 05940 (2022) the Court of Appeals held that the Interstate Compact on the Placement of Children (ICPC) an agreement among the states to follow certain procedures in connection with sending children across state borders “for placement in foster care or as a preliminary to a possible adoption” (Social Services Law § 374–a [1] [art III] [a]) does not apply to out-of-state, noncustodial parents seeking custody of their children who are in the custody of New York social services agencies.
Petitioner father, a North Carolina resident, and respondent mother, a New York resident, were the parents of the subject child. In 2012, respondent Suffolk County Department of Social Services (DSS) removed the child from the custody of mother, who admitted neglecting the child, and placed the child in foster care. Father exercised his right to appear in the neglect proceeding and, in 2013, an application was made under the ICPC to North Carolina for the approval of father’s home in that state as a suitable placement for the child. The relevant North Carolina authority denied the ICPC request. The child remained in foster care with the goal of reunification with mother and, according to father, he maintained contact with and continued to visit with the child. Thereafter, in 2017, the father commenced these custody proceedings, arguing that it was in the child’s best interests to award him sole custody. DSS argued that the child could not be placed with father in light of the North Carolina authority’s 2013 refusal to consent to the placement. Family Court dismissed father’s petitions without conducting a hearing. It held in pertinent part that the requirements of the ICPC applied to placement of the child with father, even though he was an out-of-state noncustodial parent, because the child was in the custody and care of DSS in New York. The Appellate Division affirmed (183 A.D.3d 565, 121 N.Y.S.3d 644 [2nd Dept. 2020]), holding that Family Court properly determined that the ICPC applied because “the child was in the custody of DSS and ... father resided in North Carolina” The Court concluded that the petitions for custody were correctly dismissed without a hearing inasmuch as the relevant North Carolina authority denied approval of father’s 2013 ICPC request.
The Court of Appeals reversed. It observed that the ICPC is an agreement among the 50 states, the District of Columbia, and the U.S. Virgin Islands. It is a non-federal agreement and is “construed as state law” in each adopting state (McComb v. Wambaugh, 934 F.2d 474, 479 [3d Cir 1991]).The ICPC governs the “interstate placement of children” (Social Services Law § 374–a [1] [art I]). The ICPC provides at the outset that it applies when a state agency seeks to send children to a receiving state to be placed in foster care or for possible adoption. Specifically, article III of the ICPC provides: “(a) No sending agency shall send ... into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this article ...“(b) Prior to sending ... any child ... into a receiving state for placement in foster care or as a preliminary to a possible adoption, the sending agency shall furnish the appropriate public authorities in the receiving state written notice ...” (emphasis added). (Social Services Law § 374–a [art III] [a], [b]). “Placement,” in turn, is defined as “the arrangement for the care of a child in a family free or boarding home or in a child-caring agency or institution” (id. § 374–a [art II] [d]).
The Court of Appeals observed that by its terms, the ICPC governs the out-of-state “placement” of children “in foster care or as a preliminary to possible adoption” (Social Services Law § 374–a [1] [art III] [a] & [b]). The language of the statute thus unambiguously limits its applicability to cases of placement for foster care or adoption—which are substitutes for parental care that are not implicated when custody of the child is granted to a noncustodial parent. Applying the ICPC to noncustodial parents would be inconsistent with the statutory requirement that, when a child is placed pursuant to the ICPC, “[t]he sending agency shall continue to have financial responsibility for support and maintenance of the child during the period of the placement” (Social Services Law § 374–a [1] [art V] [a]). As the United States Court of Appeals for the Third Circuit observed, “[t]o construe the return of a child to [a] parent as a ‘placement’ within the Compact would result in the anomalous situation of imposing a financial obligation upon a sending state that supersedes parents’ duty to support their children” (McComb, 934 F.2d at 480). There is nothing in the statutory language to indicate that the ICPC was intended to apply to out-of-state parents seeking custody of their children and the statutory text confines application of the ICPC to children placed in foster care or preliminary adoptive homes. It noted that its decision in Matter of Shaida W., 85 N.Y.2d 453, 626 N.Y.S.2d 35, 649 N.E.2d 1179 [1995]) did not compel a contrary conclusion. In that case, the question before the Court was whether the ICPC applied when children, who were in the care and custody of a New York social services agency, were taken to another state by their grandmother after the agency placed the children into temporary foster care with the grandmother. Although article VIII(a) provides that the ICPC does not apply to “[t]he sending or bringing of a child into a receiving state by [a] parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or [a] guardian and leaving the child with any such relative or non-agency guardian in the receiving state” (Social Services Law § 374–a [1] [art VIII] [a]), it explained that “the children were not legally ‘sent’ to California by their grandmother”. Rather, “[t]he official custodian” of the children was the “Department of Social Services of New York City,” and it was the agency that “authorized the children to be ‘sent’ ” to California within the meaning of the statute. That is, the children were sent by a social services agency to a “kinship foster care placement” in another state and, as such, this Court concluded that the ICPC applied. Here, in contrast, placing a child with an out-of-state parent did not involve foster care or adoption and, thus, Shaida W. did not control. The Court pointed out that its reading of the ICPC as being applicable only to placement of a child for foster care or as a preliminary to adoption, and not to custody of a noncustodial parent, comports with the intent reflected in the Compact’s legislative history and the underlying statutory purpose. Although the ICPC does not apply to placement with a parent, the Family Court Act contains other effective means to ensure the safety of a child before awarding custody to an out-of-state parent. Family Court retains jurisdiction over custody proceedings and has a broad array of powers under the Family Court Act to ensure a child’s safety.
Appellate Division, First Department
DRL § 237, applies to parties litigating the issue of standing as a “parent” under DRL § 70. Where the award was issued toward the end of litigation and covered almost all of respondent’s claimed counsel fees, it was, in effect, a final order and Petitioner was entitled to an evidentiary hearing as to the extent and value of respondent’s counsel fees
In Matter of Gunn v Hamilton, --- N.Y.S.3d ----, 2022 WL 10207780, 2022 N.Y. Slip Op. 05790 (1st Dept.,2022) the Appellate Division pointed out that in Matter of Kelly G. v. Circe H., 178 A.D.3d 533, 117 N.Y.S.3d 171 (1st Dept. 2019) it determined that Domestic Relations Law § 237, in consonance with the Court of Appeals’ decision in Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488 (2016), applies to parties litigating the issue of standing as a “parent” under Domestic Relations Law § 70. It agreed with petitioner that the motion court’s framing of the counsel fee award as an “interim” order was incorrect. Given that the award was issued toward the end of litigation and covered almost all of respondent’s claimed counsel fees, costs, and expenses, approximately $2.7 million, it found that the fee award was, in effect, a final order. Accordingly, petitioner, who vigorously challenged the motion, was entitled to an evidentiary hearing as to the extent and value of respondent’s counsel fees. It vacated the order and remand the matter to the motion court for an evidentiary hearing on reasonable counsel fees.
The Appellate Division also vacated the finding of criminal contempt premised on petitioner’s noncompliance with a June 28, 2021 order. Even if the order were not vacated, the procedural defects apparent in this proceeding warranted reversal. The record made clear that the court held a criminal contempt proceeding. Accordingly, petitioner was entitled to the same rights afforded a criminal defendant, including a right to be heard, to have her guilt proven beyond a reasonable doubt, and to meaningful representation of counsel. Petitioner did not receive the benefit of these procedural safeguards.
Respondent was not denied due process when the Family Court sua sponte conformed the petition to the proof adduced during the fact-finding hearing
In Matter of Jose M. R., v. Arian S., --- N.Y.S.3d ----, 2022 WL 10207779, 2022 N.Y. Slip Op. 05816 (1st Dept.,2022) a family offense proceeding the Appellate Division held that Respondent was not denied due process when the Family Court sua sponte conformed the petition to the proof adduced during the fact-finding hearing, as he could not have been surprised or prejudiced by his own admissions (see Matter of Oksoon K. v. Young K., 115 AD3d 486, 487 [1st Dept 2014], lv denied, 24 NY3d 902 [2014] ).
A parent who has complied with the recommended service plan has failed to plan for the child’s future if she “fails to gain insight into her parenting problems or take responsibility for the issues that prompted foster care placement in the first place.
In Matter of Patrice H. W., --- N.Y.S.3d ----, 2022 WL 10207773, 2022 N.Y. Slip Op. 05820 (1st Dept.,2022) the Appellate Division found that the finding of permanent neglect with respect to the child Patrice was supported by clear and convincing evidence. Respondent failed to plan for the child, evidenced by her refusal to acknowledge the problems that led to the foster care placement of the child in the first place, blaming the children, the biological mother, and the agency and denying that the children were subject to sexual abuse. Regardless of whether a parent has complied with the recommended service plan, she has failed to plan for the child’s future if she “fails to gain insight into her parenting problems or take responsibility for the issues that prompted foster care placement in the first place.
Finding of neglect against the mother was supported by evidence establishing that she refused to enforce a final order of protection issued against her boyfriend and in favor of the child in a prior neglect proceeding
In Matter of Taveon J.,--- N.Y.S.3d ----, 2022 WL 4830386, 2022 N.Y. Slip Op. 05512 (1st Dept.,2022) the Appellate Division found that the finding of neglect against the mother was supported by a preponderance of the evidence establishing that she placed the children’s physical and psychological safety in imminent risk of impairment by refusing to enforce a final order of protection issued against her boyfriend and in favor of the child Taveon in a prior neglect proceeding. Taveon, who was then 11 years old, was heard crying on a tape of a 911 call, in which he reported that the mother’s boyfriend allegedly choked her and then threatened to kill Taveon; the caseworker also testified that Taveon was crying at the police station after the incident. This evidence established, among other things, that the mother risked Taveon’s emotional health by failing to enforce the order of protection issued on his behalf.
Appellate Division, Second Department
Where a material term of a stipulation is left for future negotiations the agreement constituted “a mere agreement to agree,” is unenforceable
In Pinto v Pinto, --- N.Y.S.3d ----, 2022 WL 6850257, 2022 N.Y. Slip Op. 05728 (2d Dept.,2022) the parties stipulation of settlement that was incorporated, but not merged, into the judgment of divorce recited that it was the parties’ intention that the children would attend college, and provided that the children, with both parties’ cooperation, would apply for “merit and need based financial aid” to cover the cost of attending college. The stipulation further provided that, “should there be necessary costs and expenses once financial aid, merit aid and scholarships are exhausted[,] the parties shall consult and try to reach an agreement on payment of these cost[s] and expenses at the time those cost[s] and expenses arise. If the parties cannot agree they can address the issue in a Court of competent jurisdiction.”
In 2019, the plaintiff moved, inter alia, in effect, to direct the defendant to reimburse the plaintiff for the repayment of one-half of the total amount of the student loans incurred for the payment of the college costs and expenses for the parties’ children, based on the above-quoted provision of the stipulation. The plaintiff averred, inter alia, with the defendant about her contributing to the cost of the children’s education on at least two occasions while the children were attending college, and the defendant deferred discussion of the matter to a later time. The defendant averred that the parties consulted with each other on the issue of the children’s college expenses, that they agreed that the plaintiff would pay those expenses, and that the plaintiff did so. Supreme Court, denied plaintiff’s motion. The Appellate Division affirmed.
The Appellate Division held that the provision of the stipulation upon which the plaintiff relied in seeking reimbursement from the defendant required only that “the parties shall consult and try to reach an agreement on payment of [the children’s college-related] cost[s] and expenses.” This provision did not identify an amount or percentage of such costs or expenses to be paid by either party, and did not impose an obligation upon either party to make any such payment. Rather, “a material term [was] left for future negotiations” (Joseph Martin, Jr., Delicatessen, Inc. v. Schumacher, 52 N.Y.2d 105, 109, 436 N.Y.S.2d 247, 417 N.E.2d 541). Thus, the subject provision constituted “a mere agreement to agree,” and, as such, was unenforceable (id. at 109, 436 N.Y.S.2d 247, 417 N.E.2d 541; see Silverman v. Silverman, 249 A.D.2d 378, 379, 671 N.Y.S.2d 145; Flanel v. Flanel, 152 A.D.2d 536, 543 N.Y.S.2d 501).
Where there is no right to counsel pursuant to FCA § 262, claims of ineffective assistance of counsel in civil litigation will not be entertained absent extraordinary circumstances
In Matter of Buljeta v Fuchs, --- N.Y.S.3d ----, 2022 WL 6849583, 2022 N.Y. Slip Op. 05687 (2d Dept.,2022) the Appellate Division held that situations where there is no statutory right to counsel pursuant to Family Court Act § 262, claims of ineffective assistance of counsel in the context of civil litigation will not be entertained where extraordinary circumstances are absent (see Matter of Nassau County Dept. of Social Servs. v. King, 149 A.D.3d 942, 943, 53 N.Y.S.3d 130; Matter of Lorys v. Powell, 116 A.D.3d 1047, 1048, 983 N.Y.S.2d 892).
Where the father’s failure to pay child support is not willful a money judgment should be entered in favor of the mother for the amount of child support arrears
In Matter of Santman v Schonfeldt, --- N.Y.S.3d ----, 2022 WL 6846934 (Mem), 2022 N.Y. Slip Op. 05693 (2 Dept.,2022) a child support enforcement proceeding, the Family Court denied the petition and dismissed the proceeding. The Appellate Division found that the mother presented evidence that the father had made only one child support payment during the relevant period, and that he owed basic child support of $19,591.43. Therefore, the mother met her prima facie burden. The father testified, and presented proof, that he intended to pay, but his employer and/or the Support Collection Unit had not properly followed through with the wage garnishment procedure. The Support Magistrate found the father’s testimony credible. The Appellate Division held that under the circumstances of this case, the father’s showing was sufficient to establish that his failure to pay was not willful. Nevertheless, as there was competent proof at the hearing that the father failed to obey a lawful order of child support (see Family Ct Act § 454[1]), a money judgment should have been entered in favor of the mother for the amount of child support arrears that accrued during the relevant period (see Family Ct Act §§ 454[2][a]; 460[1]). It remitted the matter to the Family Court, for the entry of an appropriate money judgment.
Denial of husbands pendente lite motion to sell portion of wine collection to pay marital debt was in keeping with purposes of DRL § 236(B)(2)(b)(1), to preserve the status quo and to ensure that neither party would be prejudiced
In Davidoff v Davidoff, --- N.Y.S.3d ----, 2022 WL 10781782 (Mem), 2022 N.Y. Slip Op. 05835 (2d Dept.,2022) in July 2018, the plaintiff commenced this action for a divorce. In October 2018, the Supreme Court denied the defendants motion inter alia, for permission to sell a portion of the parties’ wine collection pendente lite in order to pay marital debt and expenses. The Appellate Division affirmed. It observed that Domestic Relations Law § 236(B)(2)(b)(1) provides, in pertinent part, that during the pendency of a matrimonial action, “neither party shall sell ... or in any way dispose of, without ... consent of the other party in writing, or by order of the court, any property (including ... personal property ...) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with this action.” The record supported the Supreme Court’s determination The parties’ affidavits submitted in connection with the motion reflected factual disputes regarding, inter alia, the size and estimated value of the wine collection, the parties’ past course of conduct during the marriage with respect to sales from the wine collection, and the parties’ respective alleged irresponsibility or responsibility with regard to household finances. In light of these factual disputes, denial of the subject branch of the motion was appropriate and in keeping with the statutory purposes of Domestic Relations Law § 236(B)(2)(b)(1), to preserve the status quo and to ensure that neither party would be prejudiced by the potential “unilateral dissipation of marital assets”.
Second Department reiterates rule that modifications of pendente lite awards should rarely be made by an appellate court and then only under exigent circumstances
In Davidoff v Davidoff, --- N.Y.S.3d ----, 2022 WL 10778464 (Mem), 2022 N.Y. Slip Op. (2d Dept.,2022) the parties were married in 2008 and had two children. In July 2018, the plaintiff commenced the action for a divorce. In an order dated January 4, 2021, the Supreme Court, inter alia, granted the plaintiff’s motion for an award of pendente lite child support to the extent of directing the defendant to pay pendente lite child support in the sum of $5,059 per month, retroactive pendente lite child support in the sum of $40,472 at a rate of $1,700 per month, and 100% of the children’s add-on expenses. The Appellate Division affirmed. It held that modification of the pendente lite child support award was not warranted. Modifications of pendente lite awards should rarely be made by an appellate court and then only under exigent circumstances, such as where a party is unable to meet his or her financial obligations or justice otherwise requires. Any perceived inequity in the award of pendente lite child support can best be remedied by a speedy trial, at which the parties’ financial circumstances can be fully explored. The defendant failed to demonstrate the existence of any exigent circumstances warranting a modification of the pendente lite child support award made by the Supreme Court.
Appellate Division, Third Department
Presumption that visitation with a noncustodial parent is in the best interests of the child, may be overcome where the party opposing visitation sets forth compelling reasons and substantial evidence that such visitation would be detrimental or harmful to the child’s welfare
In Matter of Ajmal I v Latoya J, --- N.Y.S.3d ----, 2022 WL 11379771, 2022 N.Y. Slip Op. 05912 (3d Dept.,2022) pursuant to a February 2012 order, the mother was awarded sole legal and physical custody of the child, while the father, who had failed to appear was granted the right to petition for custody and/or visitation in the future. The father left New York in 2009 and had not resided in the state since. The parties’ relationship had generally been tense. Given the father’s prior menacing and assaultive behavior toward the mother, she remained afraid of him and refused to give him her address. In November 2019, the mother learned that the father had offered money on social media to anyone who gave him the mother’s address, then posted that he had obtained the address and would “[s]ee [her] soon.” The mother filed a family offense petition seeking an order of protection against the father. The father responded by filing a custody modification petition and seeking, for the first time since the issuance of the 2012 custody order, visitation with the child. Family Court issued an order of protection in favor of the mother. Family Court then conducted a fact-finding hearing on the father’s modification petition, and granted the father two hours of supervised visitation.
The Appellate Division agreed with the mother and the attorney for the child that there was no basis for the award of visitation here. It reversed and dismissed the father’s petition in its entirety. It held that while visitation with a noncustodial parent is presumed to be in the best interests of the child, that “presumption may be overcome where the party opposing visitation sets forth compelling reasons and substantial evidence that such visitation would be detrimental or harmful to the child’s welfare. This standard of substantial proof should not be interpreted in such a way as to heighten the burden, of the party who opposes visitation, to rebut the presumption by a preponderance of the evidence. ( Matter of Granger v. Misercola, 21 N.Y.3d 86, 92, 967 N.Y.S.2d 872 [2013]). As such, the party opposing visitation will meet his or her burden with sworn testimony or documentary evidence that visitation would be harmful to the child or that the noncustodial parent has forfeited the right of access. It was undisputed that the father had not lived with the child in over a decade and had only infrequently visited the child due to, among other things, his moving out of the area and frequently relocating around the United States. The father made no effort to seek a formal award of visitation until 2019, more than seven years after the issuance of the 2012 custody order and over two years after he had last seen the child. This failure by the father to seek a visitation order or otherwise “avail himself of opportunities for visitation over a lengthy period of time is appropriately taken into account in considering whether visitation is appropriate. Moreover, the mother testified as to how the father behaved in an irresponsible and harmful manner on the occasions when he did interact with the child. The mother described how, during a 2014 visit with the child during his winter break from school, the father cut off contact with her and left the child with relatives so that he could attend a party and travel to New York City, leaving the mother unaware of the child’s whereabouts until the child called her several days later. The father did not see the child again until a 2017 family trip to an amusement park, and the mother testified that he upset the child then by, among other things, live streaming the visit, including the child’s personal conversations, over social media. The mother further set forth how the father did not have frequent electronic contact with the child after that visit and, when that contact did occur, the child was upset by it. The attorney for the child confirmed that the teenage child was upset by interactions with the father for a variety of reasons and did not wish to see him. The child’s preference to have no in-person contact with the father was not dispositive, but is entitled to “considerable weight” given the child’s age . The foregoing satisfied the mother’s burden of establishing that any visitation with the father would be harmful to the child.
Change in circumstances standard does not apply where the parties’ separation agreement was never memorialized in a court order or otherwise judicially sanctioned. Fundamental purpose” of Lincoln hearing is to ascertain a child’s preferences and concerns.
In Theodore P v Debra P, 2022 WL 11378159 (3d Dept.,2022) pursuant to a March 2018 separation agreement, which was to be incorporated but not merged into a subsequent judgment of divorce, the parties agreed to joint legal custody of the child and to share physical custody on a “substantially equal basis in a mutually acceptable manner.” The father commenced a divorce action in November 2019 requesting that relief, while the mother sought sole legal and physical custody. The Appellate Division rejected the father’s argument that the Supreme Court erred in proceeding directly to a best interests analysis without first considering whether a change in circumstances occurred since execution of the separation agreement. A party seeking to modify a judicially sanctioned custody arrangement must make a threshold showing of a change in circumstances that warrants an inquiry into whether modification of the arrangement is in the child’s best interests. However, that standard does not apply where the parties’ separation agreement was never memorialized in a court order or otherwise judicially sanctioned. As such, the separation agreement was but a factor to consider in resolving the custody dispute. It followed that the court did not err in denying the father’s motion for a directed verdict based upon the mother’s alleged failure to demonstrate changed circumstances.
The Appellate Division rejected the fathers argument that Supreme Court abused its discretion in holding a Lincoln hearing because there was no trial testimony requiring corroboration by the child. Corroboration of trial testimony and documentary evidence may be “a recognized purpose of a Lincoln hearing,” but the “fundamental purpose” of such a hearing “is to ascertain a child’s preferences and concerns.” It concluded that the Lincoln hearing was a provident exercise of the court’s discretion.
Supreme Court
Supreme Court holds that in determining the best interests of a companion animal under DRL § 236 [B] [5] [d] [15], the reviewing court should consider the totality of circumstances by weighing relevant factors applicable to the care of a companion animal
In L.B., v. C.C.B., --- N.Y.S.3d ----, 2022 WL 7855133, 2022 N.Y. Slip Op. 22320 (Sup Ct, 2022) an action for a divorce the parties were married for ten years. The Supreme Court pointed out that the sole significant asset contested by the parties was custody and possession of their two dogs. It observed that effective October 25, 2021, DRL § 236 [B] [5] [d] [15] provides the standard to apply in pet custody cases. It requires courts to consider “the best interest” of a companion animal when awarding possession in a divorce or separation proceeding. It held that in determining the best interests of a companion animal under DRL section 236 [B] [5] [d] [15], the reviewing court should consider the totality of circumstances by weighing relevant factors applicable to the care of a companion animal. Salient factors for a court to consider include: the involvement, or absence, of each party in the companion animal’s day-to-day life; the availability and willingness of each party to care for the companion animal; each party’s involvement in health and veterinary care decisions; the quality of each party’s respective home environment; the care and affection shown towards the companion animal; and each party’s fitness and caretaking abilities. No single factor is dispositive. It held that in determining equitable distribution of the parties’ companion animals, the court was guided by what is in the doges best interest. In weighing the factors relevant to the dogs best interest, the court must also evaluate the testimony, character, and sincerity of all the parties involved (citing “see generally” Eschbach, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260). After weighing the factors that would further the dogs best interest, including factors such as which party was primarily responsible for their day-to-day needs and for maintaining their health and veterinary care; which party, if any, spends more time with the dogs on a regular basis; and the quality of the home environment as one in which the dogs would “live, prosper, love and be loved,” as well as evaluating the testimony, character and sincerity of the parties, the court found that it was in the dogs best interest to remain together in Defendant’s sole care. The care and custody of the parties’ Rottweilers was awarded to Defendant.
October 12, 2022
Appellate Division, First Department
Law of the case doctrine did not bar defendant’s second attorney’s fees application, which is expressly permitted by DRL § 237(a) and was based on new evidence and circumstances
In Cohen v Cohen, --- N.Y.S.3d ----, 2022 WL 4830598 (Mem), 2022 N.Y. Slip Op. 05498 (1st Dept.,2022) the Appellate Division affirmed an order which, inter alia, granted defendant wife’s motion for a second interim award of counsel fees in the amount of $600,000. It found that under the facts and circumstances presented here, the court providently exercised its discretion. The factors considered include the scope and complexity of the financial issues presented, the parties’ assets and liabilities, as sworn to in their respective statements of net worth, and the prior determination that plaintiff husband, who controlled much of the parties’ real estate holdings and interest in a cosmetics business, was the monied spouse. The discretionary law of the case doctrine did not bar defendant’s second attorney’s fees application, which is expressly permitted by section 237(a) of the Domestic Relations Law and was based on new evidence and circumstances.
The phrase “consummation of the anticipated marriage of [the parties] is a condition precedent to the enforceability of this Agreement” referred to the marriage ceremony anticipated by the parties when they entered into the agreement
In Fort v Haar, --- N.Y.S.3d ----, 2022 WL 6577794, 2022 N.Y. Slip Op. 05660(1st Dept.,2022) In August 2014, the parties entered into a prenuptial agreement, and on February 14, 2015, they were married before a rabbi. The prenuptial agreement contained a section entitled “MARRIAGE -A CONDITION PRECEDENT AND EFFECTIVE DATE,” which provided, “consummation of the anticipated marriage of [the parties] is a condition precedent to the enforceability of this Agreement. If [the parties] do not marry, this Agreement shall have no effect.... This Agreement is made in consideration of, and is conditioned upon, [the parties] entering into a valid ceremonial marriage with each other, and it shall become effective as of the date of that marriage.” After the wife commenced this divorce action, she sought a declaration that the agreement was not enforceable, arguing that a condition precedent was the parties’ “consummating the anticipated marriage,” which she asserted was understood to mean having engaged in marital sexual relations. The husband opposed and sought a declaration that the agreement was enforceable as of the date of the marriage. He also disputed the wife’s factual assertions that the parties had not had sexual relations since the date of the marriage. The Appellate Division concluded that as used in this prenuptial agreement, the phrase clearly and unambiguously referred to the marriage ceremony anticipated by the parties when they entered into the agreement. While the word “consummation” connotes sexual relations in certain contexts, such as annulment proceedings, that is not the only meaning of the word, which may simply mean achieve or fulfill (see Black’s Law Dictionary [11th ed 2019]). The plain meaning of “consummation,” in the context of the section titled “Marriage – a Condition Precedent and Effective Date” and defining the effective date of agreement as the date of the parties’ marriage, is consummation or fulfillment of the parties’ intention to enter into a valid “marriage.” Reading the contract as a whole, this interpretation of the section effectuates the parties’ expressed intention to fix their respective rights accruing upon marriage and to avoid unnecessary and intrusive litigation in the event of divorce, and sets an ascertainable date for determining the effectiveness and enforceability of the prenuptial agreement. Furthermore, the wife’s acceptance of benefits under the terms of the prenuptial agreement foreclosed her from questioning its enforceability (see Markovitz v. Markovitz, 29 AD3d 460, 461 [1st Dept 2006]). The parties’ conduct in executing a modification agreement further underscored that they believed it was in force and effect (Federal Ins. Co. v. Americas Ins. Co., 258 A.D.2d 39, 44 [1st Dept 1999]).
Law Firm was not entitled to recover the counsel fees it incurred in litigating its fee claim against former client in absence of any agreement, statute, or court rule that would authorize such a recovery
In Lorne v Lorne, --- N.Y.S.3d ----, 2022 WL 5234633, 2022 N.Y. Slip Op. 05593 (1st Dept.,2022) the Appellate Division held that Fox Rothschild was entitled to recover its unpaid fees because it substantially complied with applicable court rules regarding attorneys representing clients in domestic relations matters (Uniform Rules for Trial Cts [22 NYCRR] §§ 1400.2, 1400.3; see Edelman v. Poster, 72 A.D.3d 182, 184, 894 N.Y.S.2d 398 [1st Dept. 2010]). Although the wife claimed that the retainer letter did not include 8 of 13 provisions that are mandated to appear in a retainer letter (see 22 NYCRR 1400.3), either the omitted provisions addressed matters that were not relevant to the wife in any event, or the wife was made aware of those provisions through the statement of client’s rights and through her own experiences in this proceeding. However, the wife’s position that Fox Rothschild was not entitled to recover the counsel fees it incurred in litigating its fee claim against her was persuasive in light of the firm’s failure to cite any agreement, statute, or court rule that would authorize such a recovery (see Hooper Assoc. v. AGS Computers, Inc., 74 N.Y.2d 487, 491, 549 N.Y.S.2d 365, 548 N.E.2d 903 [1989]).
Appellate Division, Second Department
A court opting to forgo a plenary custody modification hearing must take care to clearly articulate which factors were, or were not, material to its determination, and the evidence supporting its decision.
In Matter Randall v. Diaz,, --- N.Y.S.3d ----, 2022 WL 4490760 (Mem), 2022 N.Y. Slip Op. 05322 (2d Dept.,2022) the Family Court, without holding a plenary hearing, granted the father’s petition, modified the existing custody order and awarded the father sole physical custody of the children. The Appellate Division held that custody determinations should generally be made only after a full and plenary hearing and inquiry’. Where facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required. While a hearing is not necessary where the undisputed facts before the court are sufficient, in and of themselves, to support a modification of custody a court opting to forgo a plenary hearing must take care to clearly articulate which factors were, or were not, material to its determination, and the evidence supporting its decision. The record demonstrated disputed factual issues so as to require a hearing on the issue of physical custody. Moreover, the Family Court failed to articulate the factors and evidence material to its determination. It remitted for a new hearing and determination.
Under Family Court Act § 846–a, the court may order the respondent to pay the petitioner’s reasonable and necessary counsel fees in connection with the violation petition where the court finds that the violation of its order was willful. The reasonable amount and nature of the claimed services must be established at an adversarial hearing
In Matter of Sicina v. --- N.Y.S.3d ----, 2022 WL 5064723, 2022 N.Y. Slip Op. 05535 (2d Dept.,2022, the Family Court, inter alia, found that Gorish had willfully violated an order of protection and granted the violation petition. The court also extended the order of protection and directed Gorish to pay counsel fees to the petitioner of $1,000. The Appellate Division affirmed. Family Court’s determination that Gorish willfully violated the order of protection was supported by clear and convincing evidence in the record. Family Court Act § 846–a authorizes the court to enter a new order of protection if, after hearing, the court is satisfied by competent proof that the respondent has willfully failed to obey any such order. Contrary to Gorish’s contention, conduct constituting a violation of the order of protection need not necessarily constitute a separate family offense in order for the court to have jurisdiction over the violation. Under Family Court Act § 846–a, the court may order the respondent to pay the petitioner’s reasonable and necessary counsel fees in connection with the violation petition where the court finds that the violation of its order was willful. The award of counsel fees is committed to the discretion of the Family Court. The reasonable amount and nature of the claimed services must be established at an adversarial hearing. Here, while the Family Court providently exercised its discretion in awarding counsel fees to the petitioner, the court erred in determining the amount of the counsel fees without a hearing. It remitted the matter to the Family Court, for a hearing to determine the amount of reasonable and necessary counsel fees the petitioner incurred in connection with her violation petition and the entry of an appropriate order thereafter.
Appellate Division, Fourth Department
A movant contending that a pleading fails to state a cause of action pursuant to CPLR 3211 (a) (7) may submit affidavits and evidence to demonstrate conclusively that the plaintiff does not have a cause of action
In Stuber v Stuber --- N.Y.S.3d ----, 2022 WL 5406402, 2022 N.Y. Slip Op. 05641 (4th Dept., 2022) Plaintiff commenced an action seeking to set aside a property settlement agreement (agreement), which was incorporated but not merged into the parties’ judgment of divorce, on grounds of fraud, undue influence, unconscionability, and duress. The Appellate Division reversed an order that, inter alia, denied defendants motion to dismiss the complaint pursuant to CPLR 3211 (a) (1), (5), and (7). It held that a movant contending that a pleading fails to state a cause of action pursuant to CPLR 3211 (a) (7) may submit affidavits and evidence to demonstrate conclusively that the plaintiff does not have a cause of action. Here, plaintiff’s vague allegations that defendant failed to make full financial disclosure when the agreement was entered into were belied by the evidence produced in defendant’s motion papers. Thus, it concluded that the agreement, together with the evidence submitted by defendant, flatly contradicted plaintiff’s allegations that she was not provided with complete disclosure regarding the subject assets at the time she executed the agreement. Further, when confronted with defendant’s motion to dismiss, plaintiff failed to come forth with any facts or circumstances” supporting her allegations. Inasmuch as plaintiff only vaguely contended, in response to the motion, that she learned after the agreement was executed that defendant failed to make disclosure of marital financial information and inasmuch as her complaint contains no facts to support those allegations, the complaint also failed to state a cause of action to rescind the agreement based on unconscionability, fraud, or duress and undue influence.
September 28, 2022
Where an account has been stated by a law firm, the firm is not required to establish the reasonableness of its fees
In Garr Silpe, P.C. v Pam Thur Weir, --- N.Y.S.3d ----, 2022 WL 4474597, 2022 N.Y. Slip Op. 05271 (1st Dept.,2022) the Appellate Division affirmed a judgment which awarded the plaintiff $87,993.92, counsel fees as there had been substantial compliance with the rules (see Edelman v Poster, 72 AD3d 182,184 [1st Dept 2010]; 22 NYCRR part 1400). The court properly granted plaintiff summary judgment on its claim for account stated. Plaintiff submitted evidence establishing that defendant did not object to the bills and invoices within a reasonable time, and had in fact made partial payments. Defendant failed to proffer any proof raising a triable issue of fact. Defendant’s challenge to the reasonableness of the fees was unavailing. Where an account has been stated by a law firm, the firm is not required to establish the reasonableness of its fees since the client’s act of holding the invoices without objection constitutes an acquiescence to the correctness of the invoices (see Shaw v Silver, 95 AD3d 416, 416-417 [1st Dept 2012]).
Appellate Division, Second Department
Second Department holds that where the custodial arrangement splits the children’s physical custody so that neither can be said to have physical custody of the children for a majority of the time the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the ‘noncustodial’ parent
In Matter of Smisek v DeSantis, 2022 WL 4361153 (2d Dept.,2022) in adjudicating a child support petition filed by the mother of the children, the Support Magistrate and the Family Court agreed with the father’s contention that the mother could not be awarded child support because a strict counting of the parties’ custodial overnights with the children rendered him the custodial parent. After a trial, the Family Court issued a final order of custody awarding the parties joint legal custody and shared parenting time. The parenting time schedule in the final order of custody was as follows: during the months of September through June, the father had parenting time with the children from Sunday at 8:00 p.m. through Wednesday at 9:00 a.m., as well as on alternating weekends from Friday at 9:00 a.m. through Sunday at 8:00 p.m. The mother had parenting time during those months from Wednesday at 9:00 a.m. through Friday at 9:00 a.m., and alternating weekends from Friday at 9:00 a.m. through Sunday at 8:00 p.m. During the months of July and August, the mother had parenting time from Monday at 9:00 a.m. through Thursday at 9:00 a.m., as well as alternating weekends from Thursday at 9:00 a.m. through Monday at 9:00 a.m. The father had parenting time during those months on alternating weekends from Thursday at 9:00 a.m. through Monday at 9:00 a.m., as well as one period of seven consecutive days. The parties alternated custody on all other school breaks and holidays. In its decision after trial, which set forth the same parenting time schedule, the Family Court stated that it was giving “residential custody” to the father “solely for the purpose of determining the children’s school district.”
The Support Magistrate, examining the relevant law, perceived a split of authority between the Appellate Division, First and Third Judicial Departments, on the one hand, and the Appellate Division, Fourth Judicial Department, on the other, with no precedent from the Second Department, as to the method of determining which parent was the custodial parent for purposes of child support in a shared custody arrangement. Following the First Department’s decision in Rubin v. Della Salla, 107 A.D.3d 60, 964 N.Y.S.2d 41, the Support Magistrate concluded that the parent who has the greatest number of custodial overnights is the parent considered to have custody of the child the majority of the time and, therefore, is the custodial parent for child support purposes. Since the father had more custodial overnights, the Support Magistrate granted the father’s motion pursuant to CPLR 3211(a) to dismiss the mother’s petition for child support and dismissed the proceeding. The mother filed objections to the Support Magistrate’s order, arguing for a more flexible approach that would award child support to the spouse with the lower income where the parties enjoyed approximately equal parenting time. The Family Court, however, agreed with the Support Magistrate, and denied the mother’s objections. The mother appealed.
The Second Department surveyed the relevant case law in all of the Departments. It rejected that the father’s contention that status as the custodial parent must be determined based upon a strict counting of custodial overnights and that the Baraby rule only applies to a true 50/50 split of custodial overnights. While a strict counting of overnights might have the advantage of ease of application, it also has disadvantages. Most significantly, such a method does not always reflect the reality of the situation. It concluded that while counting custodial overnights may suffice in most shared custody cases, that approach should not be applied where it does not reflect the reality of the situation. Similarly, while it may be clear in most cases which parent’s share of the parenting time constitutes the majority of custodial time (citing Bast v. Rossoff, 91 N.Y.2d at 729 n. 3, 675 N.Y.S.2d 19, 697 N.E.2d 1009), the reality of the situation must also be considered where there is a closer division of parenting time.
The Appellate Division found that under all of these circumstances, and considering the reality of the situation, including the overall amount of time each parent spends with the children, this was a case in which the “custodial arrangement splits the children’s physical custody so that neither can be said to have physical custody of the children for a majority of the time” (Baraby v. Baraby, 250 A.D.2d at 204, 681 N.Y.S.2d 826). Thus, “the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the ‘noncustodial’ parent” . Since it had not been determined in this case which parent had the greater pro rata share of the child support obligation, it remitted the matter to the Family Court for further proceedings on the mother’s petition for child support, including calculation of an appropriate award of support to her in the event that she is determined to have the lesser pro rata share of the child support obligation.
September 21,2022
Where a parent makes a voluntary custodial arrangement for his or her child, the courts may not permit a nonparent to interfere with that arrangement in the absence of extraordinary circumstances.
In Matter of Leslie LL v Robert NN, --- N.Y.S.3d ----, 2022 WL 4239598, 2022 N.Y. Slip Op. 05189 (3d Dept.,2022) following the mother’s death in 2017, custody petitions for the son and daughter were filed by the mother’s friend, respondent Shaquila PP.and the children’s maternal grandmother, respondent Kathy OO..Family Court granted temporary custody to the grandmother, upon consent of the children’s fathers and the friend. Family Court conducted a hearing and ultimately dismissed the petitions on the basis that petitioners had failed to meet their burden of demonstrating extraordinary circumstances. The Appellate Division affirmed. It pointed out that the boy’s father testified at the hearing that he consistently paid child support to the mother while she was alive and saw the boy frequently during those years, as often as two to three times a week. He also testified that he was unable to assume custody because he ha physical disabilities and lived in public housing that did not allow children. Therefore, following the mother’s death, the boy’s father formulated a plan for the boy to live with the grandmother along with his sister, with whom he has a close bond. He said he currently visited with the boy every weekend and attended all of his athletic events. Family Court noted that the children have been the only constant in each other’s lives and are very close. The court further observed that the children are being raised together by the grandmother in a loving home. The Appellate Division held that where, as here, a parent makes a voluntary custodial arrangement for his or her child, the courts may not permit a nonparent to interfere with that arrangement in the absence of extraordinary circumstances. An extraordinary circumstances inquiry involves “consideration of the cumulative effect of all issues present in a given case” and requires the nonparent to establish “that there has been surrender, abandonment, persistent neglect, unfitness, an extended disruption of custody” or other like circumstances. If , and only if, the nonparent establishes extraordinary circumstances may a court then consider what custodial arrangement serves the best interests of the child”. It held that extraordinary circumstances may not be established merely by showing that the child has bonded psychologically with the nonparent”.
September 16, 2022
Appellate Division, First Department
Since there is no reason an equitable distribution award cannot be made to the plaintiff on a contingent basis, the court should have awarded the plaintiff 50% of so much of the security deposit as is returned by the landlord upon the termination of the lease on the marital residence.
In Malkani v Malkani, --- N.Y.S.3d ----, 2022 WL 3904656, 2022 N.Y. Slip Op. 05082 (2d Dept.,2022) the parties were married on December 31, 2007, and had three minor children. The action for a divorce was commenced on August 8, 2017. After a nonjury trial, the Supreme Court awarded the plaintiff maintenance and child support, commencing on the first day of the month following the entry of the judgment of divorce, rather than being retroactive to the date of the commencement of the action, when the plaintiff first sought maintenance and child support. In computing maintenance and child support, the court noted that the defendant was employed at an annual salary of $235,000 and, based upon the potential of a bonus, imputed to him a total annual income of $270,000. The court noted that the plaintiff had been offered full-time employment with an annual salary of $85,000 by her current employer, and imputed that income to her. The court imputed additional annual income of $84,000 to the plaintiff, on the ground that her father was paying the rent for her current residence. Maintenance and child support were based upon imputed income of $270,000 for the defendant and $169,000 for the plaintiff. Based upon those figures, the computation of maintenance pursuant to Domestic Relations Law § 236(B)(6) resulted in a negative number. The Supreme Court nevertheless awarded the plaintiff maintenance of $1,000 per month for a period of 12 months. Child support was awarded to the plaintiff based upon the defendant’s imputed income of $270,000 and the plaintiff’s imputed income of $169,000, utilizing the statutory cap of $148,000 for combined parental income. Based on the income imputed to each party, the court determined that the defendant would be responsible for 61% of all statutory add-on expenses and the plaintiff would be responsible for 39% of such expenses.
The Appellate Division held that a party’s maintenance and child support obligations commence, and are retroactive to, the date the applications for maintenance and child support were first made,” which, in this case, was the date of the commencement of this action and that the award of spousal maintenance and child support to the plaintiff should have been retroactive to August 8, 2017.
The Appellate Division held that imputing an additional $84,000 in annual income to the plaintiff, based upon the fact that her father paid her rent so she could live apart from the defendant during the pendency of this action, was an improvident exercise of discretion. This gift was made by the plaintiff’s father after the action was commenced, and was at least in part a response to the fact that the defendant was not making any pendente lite support payments Moreover, the term of the lease for the plaintiff’s residence was only 19 months, commencing on December 1, 2017. The plaintiff’s father had no legal obligation to provide his daughter with housing, and there was no indication in the record that his payment of rent would continue once the 19–month lease period ended.. Under these circumstances, it was not appropriate to impute the rental payments made by the plaintiff’s father as income to the plaintiff.
The Supreme Court declined to award the plaintiff an equitable share of the security deposit of $12,000 given to the landlord of the marital residence, reasoning that the plaintiff did not prove that the deposit was paid with marital funds and that, since the lease of the marital residence had not ended, it was not known whether the security deposit would be returned. However, there was no indication in the record that the security deposit, which was given after the parties had been married for approximately seven years, somehow derived from separate property, and thus, the presumption that the security deposit was paid with marital property, and therefore was subject to equitable distribution, was not overcome. Since there was no reason an equitable distribution award cannot be made to the plaintiff on a contingent basis, the court should have awarded the plaintiff 50% of so much of the security deposit as is returned by the landlord upon the termination of the lease on the marital residence.
Appellate Division, Third Department
Judiciary Law § 14 provides that A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding . . . in which he [or she] has been attorney or counsel. This prohibition is absolute and establishes a bright -line disqualification rule.
In Matter of John II, v Kristen JJ., --- N.Y.S.3d ----, 2022 WL 4098523, 2022 N.Y. Slip Op. 05132) (3d Dept.,2022) pursuant to a November 2012 order issued upon the father's default, the mother was granted sole legal and physical custody of the children. Subsequently, in June 2017, the parties entered into an agreement through which the mother retained sole legal and physical custody of the children, and the father was "entitled to weekly supervised visitation. The father filed a petition for modification of June 2017 order. He also sought Family Court's disqualification, noting that the November 2012 order listed "Keith M. Bruno" as the mother's counsel in those proceedings. Family Court denied the father's disqualification motion. Following a fact-finding hearing where the mother was the only witness, Family Court dismissed the father's petition for failure to establish a prima facie case. The Appellate Division agreed with the father that Family Court erred in denying his motion to have the court be disqualified from the matter. It observed that "A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding . . . in which he [or she] has been attorney or counsel" (Judiciary Law § 14; see Rules Governing Judicial Conduct [22 NYCRR] § 100.3 [E] [1] [b] [i]). "This prohibition is absolute and establishes a bright -line disqualification rule". Although neither the Judiciary Law nor the Rules Governing Judicial Conduct define "an action, claim, matter, motion or proceeding" (Judiciary Law § 14), Black's Law Dictionary defines a "claim" as "[t]he assertion of an existing right . . . to an equitable remedy, even if contingent or provisional" (Black's Law Dictionary [11th ed 2019] , claim). When the father moved for Family Court's recusal and/or disqualification, the judge explained that he did not recall such representation from eight to nine years prior. The November 2012 default order and the order on appeal both dealt with the custodial arrangement between the same two parents regarding the same three children. Under these circumstances, where the two proceedings involved the same claim of custody, guardianship, or visitation for the same children, Family Court was statutorily disqualified from the proceedings. The order was reversed and the matter remitted before a different judge for a new fact-finding hearing.
Appellate Division, Fourth Department
The fact that testing has already been conducted when a court holds a hearing on equitable estoppel does not mandate reversal of a subsequent order determining paternity. A Support Magistrate cannot lawfully order a party to submit to genetic testing before the party is represented by counsel.
In Matter of Danielle E.P., v. Christopher N., 172 N.Y.S.3d 782, 2022 N.Y. Slip Op. 04841(4th Dept.,2022) Respondent and petitioner-respondent (petitioner) had sexual relations in September 2015 and January 2016. At the time that petitioner gave birth to the child, she was in a relationship with another man who was identified as the child’s father on the birth certificate and who signed an acknowledgment of paternity. Shortly after the child was born, petitioner’s relationship with that man ended. Petitioner then informed respondent that he might be the child’s father and filed a paternity petition against him. Based on the acknowledgment of paternity, Family Court dismissed the petition. After the acknowledgment of paternity was vacated, petitioner commenced this proceeding. At the outset of the proceeding, the Support Magistrate ordered genetic marker testing, which established that respondent was the child’s biological father. The Support Magistrate thereafter transferred the matter to Family Court for a hearing on respondent’s defense of equitable estoppel. Following the hearing, the court adjudicated respondent to be the child’s father. The Appellate Division affirmed.
The Appellate Division observed that the court should consider paternity by estoppel before it decides whether to test for biological paternity. Nevertheless, the fact that testing has already been conducted when a court holds a hearing on equitable estoppel does not mandate reversal of a subsequent order determining paternity. Respondent had a full and fair opportunity to litigate his equitable defense, which the court rejected following the hearing, and respondent did not challenge the court’s determination that he failed to establish that equitable estoppel applied. Moreover, the court made clear that, notwithstanding the results of the genetic marker test, the paternity petition would have been denied had respondent met his burden of proof on equitable estoppel.
The Appellate Division rejected respondent’s contention that the Support Magistrate erred in ordering genetic testing before respondent was represented by counsel. Although a respondent in any proceeding under Family Court Act article 5 in relation to the establishment of paternity has a right to the assistance of counsel respondent cited no authority for the proposition that a Support Magistrate cannot lawfully order a party to submit to genetic testing before the party is represented by counsel.
The Appellate Division rejected respondents contention that the court erred in denying his motion to vacate the order that adjudicated him to be the child’s father. Respondent’s claim of estoppel was based on the nature and extent of the relationship between the boyfriend and the child, and there was insufficient evidence that the Petitioners boyfriend ever held himself out as the child’s father.
Supreme Court
Where father’s adjusted gross income was in excess of $2 million a year it was inappropriate to award to guideline maintenance and child support only up to the cap. Court utilized an adjusted cap of $800,000 for its calculations, or approximately one-third of the parties’ combined income (citing Klauer v Abeliovich, 149 AD3d 617 (1st Dept 2017)
In E.A., v. J.A., Slip Copy, 2022 WL 3905783 (Table), 2022 N.Y. Slip Op. 50833(U) 2022 WL 3905783 (Sup. Ct., 2022) the parties were married on June 11, 2017 in New York. This divorce action was commenced on April 18, 2022. There were two children of the marriage: one born in October 2018, and the other born in April 2021. The marital residence, where the parties resided with their two children, was a townhouse valued at approximately $8 million located in the Upper East Side of Manhattan. The Husband, who was 31, was the co-vice president of, a telecommunications company co-founded by his father. The Wife, who was 27, did not make an income and has no assets. In the year of 2020, the Husband totaled an adjusted gross income of $2,604,004. In 2021, the year before this action was commenced, the husband earned approximately $2,587,530.62. The parties drive luxury automobiles, had access to numerous perquisites through Defendant’s corporation and spend thousands of dollars per month on clothing and accessories including from retailers such as Bergdorf Goodman, Chanel, and Bottega Venetta. Their children attended a private preschool, the parties traveled by private jet on high end vacations throughout the world, had household staff, regularly ate at luxury restaurants and spent thousands of dollars on Kosher groceries, and summered in Deal, New Jersey at the $7 million mansion owned by Defendant’s family. The Court determines it was inappropriate to award the guideline maintenance and child support only up to the cap. It utilized an adjusted cap of $800,000 for its calculations, or approximately one-third of the parties’ combined income (citing Klauer v Abeliovich, 149 AD3d 617 [1st Dept 2017][upholding use of $800,000 adjusted cap]). Using this cap the sum total Defendant would have to pay to Plaintiff each month would be $28,894.69. However, the Court found that this award was too high relative to the total amount spent in 2021, and in light of the significant expenses and carrying costs already being covered by Defendant, including the parties’ townhouse, as well as paying the childcare staff and add-on expenses. The Court found that an amount of $24,000 in unallocated support adequately reflected a support level that met the needs and continuation of the children’s and Plaintiff’s lifestyle. The award was unallocated because, many of the expenses were intertwined and at this early phase of the action more discovery was needed to fully understand the expenses of the parties and children.
Defendant was ordered to pay the Plaintiff’s interim counsel fees of $250,000 and to pay Plaintiff’s interim expert fees of $75,000 subject to reallocation at trial and without prejudice to further applications.
August 30, 2022
Appellate Division, Second Department
A petitioner who does not sign an acknowledgment of paternity has standing pursuant to Family Court Act § 522 to seek an adjudication that he was the legal father of the child.
In Matter of Escobar v Pagan, --- N.Y.S.3d ----, 2022 WL 3221775, 2022 N.Y. Slip Op. 04912 (2d Dept.,2022) the subject child was born in September 2013, to Milagros P. ( mother). On September 13, 2013, the mother and Escobar signed an acknowledgment of paternity which stated that Escobar was the child’s father. The mother also was in an intimate relationship with Michael M.(Michael), and in October 2013 she agreed to a private DNA test. The results of that test indicated that Michael was the child’s biological father. Michael voluntarily paid child support to the mother in the amount of $600 per month. The mother also allowed Michael to have regular visitation with the child. In 2019, Escobar commenced a proceeding for parental access with the child, while Michael commenced a paternity proceeding to have himself declared the child’s father. Family Court directed the mother, Escobar, and Michael to undergo genetic marker testing. Based on the results of that testing, which indicated that Michael was the child’s biological father, the court issued an order adjudicating Michael to be the child’s father, an order vacating the acknowledgment of paternity, and an order dismissing Escobar’s petition for parental access for lack of standing. The Appellate Division affirmed. It held that the best interests of the child were served by adjudicating Michael’s status, since the child already considered Michael to be her father. Further, the evidence adduced at the hearing indicated that Michael provided a stable resource for the child. Therefore, equitable estoppel was not applicable here. Although a petitioner who does not sign an acknowledgment of paternity does not have standing to challenge the acknowledgment of paternity pursuant to Family Court Act § 516–a, Michael nevertheless had standing pursuant to Family Court Act § 522 to seek an adjudication that he was the legal father of the child. Once the Family Court determined that Michael was entitled to such an adjudication pursuant to Family Court Act § 522, it properly exercised its authority to vacate the acknowledgment of paternity executed by Escobar. In view of the order adjudicating Michael to be the child’s father, Escobar’s petition for parental access was properly dismissed for lack of standing.
A person who is not a party to a judicial surrender and is not authorized by statute to file a petition seeking to vacate a judicial surrender lacks standing to file such a petition.
In Matter of Elizabeth W,--- N.Y.S.3d ----, 2022 WL 3640856, 2022 N.Y. Slip Op. 05039 (2d Dept.,2022) the child Elizabeth W. appealed from an order of the Family Court, which denied her petitions to vacate the judicial surrenders of Gabriella W. and Aleah W., denied those branches of the mother’s petition which sought the same relief, and dismissed the paternal grandfather’s petitions for custody of Gabriella W. and Aleah W., contending that all three children should reside together with the paternal grandfather. The Appellate Division held, inter alia, that appellant, was aggrieved by the portion of the order denying her own petitions to vacate the judicial surrenders of Gabriella W. and Aleah W., since, in those petitions, the appellant “asked] for relief but that relief [was] denied in whole or in part”. Nonetheless, the appellant was not a party to, and was not the subject of, the judicial surrenders of Gabriella W. and Aleah W. The statutes governing the Family Court’s review of a failure of a material condition of a judicial surrender authorize the filing of petitions by the relevant agency, by the parent, and by the “attorney for the child ” (Family Court Act § 1055–a[a]; see Social Services Law § 383–c[6][c] [petition may be filed by agency, parent, or “law guardian for the child”]). The statutory reference to “the child” means the child who is the subject of the judicial surrender that is under review. Since adoption in this State is solely the creature of ... statute, statutory provisions regarding adoptions must be strictly construed. Thus, a person who is not a party to a judicial surrender and is not authorized by statute to file a petition seeking to vacate a judicial surrender lacks standing to file such a petition. Although the appellant had standing pursuant to Domestic Relations Law § 71 to apply for sibling visitation(and she was, in fact, granted sibling visitation), seeking to become involved in litigating a parent’s judicial surrender of a sibling for the purpose of adoption is an entirely different matter. Since the appellant was not a party to the judicial surrenders of Gabriella W. and Aleah W., and was not a person authorized to file a petition seeking to vacate either of those judicial surrenders, she did not have standing to file such petitions. Therefore, on that basis, her petitions were properly denied.
Appellate Division, Third Department
Allegations in the petition were sufficient to warrant a hearing to determine if the Court had emergency jurisdiction to make an initial child custody determination under Domestic Relations Law § 76–c
In Matter of Chester HH., v. Angela GG.,--- N.Y.S.3d ----, 2022 WL 3449008, 2022 N.Y. Slip Op. 05002 (3d Dept.,2022) the Appellate Division held that the allegations set forth in the petition were sufficient to warrant Family Court to conduct a hearing to determine if the Court had emergency jurisdiction to make an initial child custody determination (see Domestic Relations Law § 76[1][a]-[d])., Domestic Relations Law § 76–c provides that “New York courts have temporary emergency jurisdiction if the child is present in this state and it is necessary in an emergency to protect the child, a sibling or parent of the child. ’The father’s petition included allegations concerning, among other things, that the mother engaged in a pattern of neglect by failing to properly dispose of garbage – causing a rodent infestation in the home; that the home was without electricity and hot water for lengthy periods of time on numerous occasions; that the mother has mental and physical conditions rendering her unable to care for the house or the child; that the mother keeps the child out of school to ensure that the child is available to attend to her needs; that the mother failed to take the child to the doctor for approximately four years; and that she has verbally and mentally abused the child. The petition further contained allegations that the child’s maternal uncle punched holes in the walls of the mother’s residence while the child was present, was verbally abusive toward the child – including regarding the child’s sexual orientation – and that the uncle may have sexually assaulted and/or raped the child on two occasions. Finally, the petition alleged that the child’s maternal grandmother was verbally abusive and unsupportive of the child’s gender identity. Family Court erred in relying on unsigned and redacted MDHHS report, containing vague and contradictory hearsay statements made by an MDHHS caseworker, as support for its decision not to conduct a hearing. The record confirmed that the MDHHS report was the result of a less-than-thorough investigation that failed to address all of the father’s allegations.
Appellate Division, Fourth Department
Collateral estoppel applies only when the issues in both proceedings are identical .The doctrine of res judicata requires “a valid final judgment” on a prior action between the parties. A divorce settlement tainted by duress is void ab initio not merely voidable, and is, not subject to ratification by the mere passage of time.
In Nagi v Ahmed, 207 A.D.3d 1149, 172 N.Y.S.3d 286, 2022 N.Y. Slip Op. 04461
(4th Dept.,2022) Plaintiff commenced an action seeking to vacate in part an amended judgment of divorce entered in 2018 and to set aside the parties’ property settlement agreement, which was incorporated but not merged into the amended judgment of divorce. The complaint alleged, among other things, that plaintiff signed the agreement due to “extraordinary duress and pressure” exerted on her by defendant, among other people, and that the terms of the agreement were so favorable to defendant as to render it unconscionable and thus unenforceable. Defendant cross-moved for summary judgment on his affirmative defenses seeking to dismiss the complaint on the grounds of collateral estoppel and ratification. Supreme Court granted the cross motion, concluding that plaintiff was collaterally estopped from challenging the agreement because she sought similar relief by way of a motion she filed in July 2018 seeking to modify certain provisions of the agreement and to enforce others. The Appellate Division reversed. It held that collateral estoppel applies when (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits. Here, the motion that plaintiff filed in July 2018 did not seek to vacate the amended judgment of divorce or to set aside the agreement. The issues in this action were not identical to those raised by plaintiff in her motion, and defendant thus failed to meet his initial burden on his cross motion of establishing that collateral estoppel precludes plaintiff from challenging the agreement.
The Appellate Division rejected the contention that to the extent that defendant contended, as an alternative ground for affirmance, that this action was barred by res judicata because plaintiff could have pursued her current claims in the 2018 motion, we reject that contention. A party seeking to set aside a settlement agreement must do so in a plenary action; such relief cannot be obtained on motion. Moreover, although plaintiff did commence a plenary action in August 2018 to set aside the agreement on grounds of fraud, duress, and overreaching, she abandoned that action, and a final judgment was never entered on it. The doctrine of res judicata requires, among other things, “a valid final judgment” on a prior action between the parties which was lacking here. There never had been a determination on the merits of plaintiff’s claims that she signed the agreement under duress and that the agreement is unconscionable.
The Appellate Division rejected defendant’s contention, raised as an alternative ground for affirmance, that the court properly granted the cross motion because plaintiff ratified the agreement by acquiescing in it and receiving the benefits under it for a considerable period of time. A divorce settlement tainted by duress is void ab initio not merely voidable, and is, therefore, not subject to ratification by the mere passage of time” (Perl v. Perl, 126 A.D.2d 91, 96, 512 N.Y.S.2d 372 [1st Dept. 1987]).
Nothing intrinsically dangerous about leaving two children to eat and watch television while the mother was in the bathroom with the door open.
In Matter of Silas W, 171 N.Y.S.3d 290, 2022 N.Y. Slip Op. 04506 (4th Dept.., 2022) the Appellate Division agreed with the mother that petitioner failed to establish that she neglected the children. Although “[a]n isolated accidental injury may constitute neglect if the parent was aware of the intrinsic danger of the situation” here, there was nothing intrinsically dangerous about leaving two of the children to eat and watch television while the mother was in the bathroom with the door open. The record established that the mother knew that one of her children was sometimes aggressive towards his younger siblings, but there was no evidence in the record that she was aware that he may open a locked window, remove the screen, and drop his sibling from a height of two stories. In making that determination, it noted that the window involved in the incident was not deemed dangerous by a caseworker during a home visit less than a month before the incident.
Contentions raised for the first time in a reply brief are not properly before the Appellate Division
In S.P., v. M.P., 207 A.D.3d 1213, 171 N.Y.S.3d 687 (4th Dept., 2022) the Appellate Division held that contentions raised for the first time in a reply brief were not properly before the court (see Matter of Carroll v. Chugg, 141 A.D.3d 1106, 1106, 34 N.Y.S.3d 848 [4th Dept. 2016]; Cunningham v. Cunningham, 137 A.D.3d 1704, 1705, 28 N.Y.S.3d 751 [4th Dept. 2016]). It also held that the issues raised by the AFC were not properly before it where the AFC did not file a notice of appeal (see Matter of Noble v. Gigon, 165 A.D.3d 1640, 1641, 82 N.Y.S.3d 923 [4th Dept. 2018], lv denied 33 N.Y.3d 902, 2019 WL 1941819 [2019]; Carroll, 141 A.D.3d at 1106, 34 N.Y.S.3d 848
Supreme Court
Court has discretion to limit, modify or vacate the automatic stay imposed by the posting of a Bond for payment of counsel fee award pending appeal
In B.N., v. M.N.,.2022 WL 3591083( Sup. Ct, 2022) this Court, awarded the Plaintiff $75,000.00 for interim counsel fees, The defendant posted a Bond to stay the payment pending appeal. Supreme Court held that it has the authority to limit, modify or vacate the stay imposed by the posting of the Bond, and it vacated the Bond. It held that staying enforcement of an award of interim counsel fees to the nonmonied spouse was, in and of itself, untethered from the intent of DRL § 237(a) and at odds with prevailing case-law. The Court found that the posting of the Bond with respect to the award of interim counsel fees as ordered by this Court functioned, in effect as a denial of the application for fees. (Citing Weschler v. Weschler, 8 Misc 3d 328 (Supreme Court New York County 2005). In Weschler, Justice Gische wrote that “...[t]he fact that the stay is automatic does not remove it from the purview of the court’s discretion to otherwise vacate, limit or modify the stay. Moreover, the statute expressly gives the court issuing the order appealed from such discretion...” It noted that in Karg v. Kern 125 AD3d 527 (1st Dept. 2015)., the First Department unanimously affirmed an Order of the New York County Supreme Court, which, inter alia, vacated an automatic stay obtained therein.
Veterans military disability retirement pay, and VA financial compensation are not subject to equitable distribution
In B.C., v. M.C., --- N.Y.S.3d ----, 2022 WL 3591082, 2022 N.Y. Slip Op. 22266 (Sup Ct, 2022) defendant’s request for an Order directing that the Plaintiff’s military disability retirement pay, and VA financial compensation were subject to equitable distribution was denied. Plaintiff had medical issues that rendered her permanently disabled, entitling her to disability retirement benefits from the United States Coast Guard. The Court observed that ”Department of Defense Financial Management Regulation, Volume 7B . . . addresses and explains the retired pay system[.] Pursuant to § 290701 (C) (5) if the percentage of disability is chosen, then it is not part of disposable retirement pay. The Uniformed Services Former Spouse’s Protection Act (10 USC § 1408 (a) (4) (iii)) defines disposable retired pay as “the total monthly retired pay to which a member is entitled less amounts which in the case of a member entitled to retired pay under chapter 61 of this title [10 USCS §§ 1201 et seq.], are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member’s disability on the date when the member was retired (or the date on which the member’s name was placed on the temporary disability retired list).” In 1982 Congress passed “the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408. Congress wrote that a State may treat veterans’ “disposable retired pay” as divisible property, i.e., community property divisible upon divorce. However, the new Act expressly excluded from its definition of “disposable retired pay” amounts deducted from that pay “as a result of a waiver . . . required by law in order to receive” disability benefits.” (see Howell v Howell, 137 S Ct 1400 [2017]). The Third Department has held “that a court in an action for divorce or separation cannot order as spousal maintenance the allocation of compensation received by a veteran derived from military pay waived in order for the retiree to receive veterans’ disability benefits.” (see Hoskins v Skojec, 265 AD2d 706 [3d Dept 1999]; Mills v Mills, 22 AD3d 1003 [3d Dept 2005]). VA benefits are awarded based solely on a disability that has resulted from injury or disease contracted in the line of duty and as such these benefits are separate property and are “not subject to equitable distribution[.]” (see Murphy v Murphy, 126 AD3d 1443 [4th Dept 2015]).
Family Court
Under the Family First Prevention Services Act (FFPSA), which is intended to ensure that children removed from their homes do not languish in restrictive, congregate settings unnecessarily the court must determine the most appropriate and least restrictive placement possible
In Matter of Felipe R.,172 N.Y.S.3d 350, 2022 N.Y. Slip Op. 22216 (Fam Ct, 2022) ACS filed a motion seeking an order that continued qualified residential treatment facility placement was necessary to adequately address the child’s needs. A hearing was held pursuant to SSL § 393(2), F.C.A. § 353.7(3), § 756-b(3), § 1055-c(2), § 1091-a, and § 1097, through which the Family First Prevention Services Act (FFPSA), 42 U.S.C. § 672 and § 675a are codified in New York. This statute, in relevant part, is intended to ensure that children removed from their homes do not languish in restrictive, congregate settings unnecessarily. The Court was asked to determine the most appropriate and least restrictive placement possible for Felipe, who had autism. The Court pointed out that in order to maintain his current placement, the Court must determine whether 1) Felipe’s needs can/cannot be met through a placement in family-based foster care; 2) a group placement is the most effective and appropriate placement; 3) placement is the least restrictive possible placement given Felipe’s needs; and 4) such placement is consistent with the long- and short-term planning goals in place for the subject child. The Court found that ACS failed to meet its burden under FFPSA and FCA 1055-c. Placement of the child alleged to be neglected in qualified residential treatment facility was not the least restrictive placement possible and continued placement was not appropriate under Family First Prevention Services Act (FFPSA). Although the child was diagnosed with autism and struggled with self-soothing, hygiene, expressing his needs, and other basic tasks, until the filing of neglect petition, the child had been living with his mother and siblings where his basic needs were met without extensive additional services, and services that child received at facility were available in the community. Such placement was not consistent with the child’s short- or long-term needs, and, thus, child’s continued placement in facility was not appropriate under Family First Prevention Services Act (FFPSA). The goal was for child to return home, the child was only ten years old and was among the youngest residents at facility, the child did not transition to group care easily, and the child, as shown through his connection to his current family, would benefit from long-term relationships. To find otherwise would essentially mean that any child suffering from relatively severe autism can only live in a group facility. It held that under the requirements of Family First, ACS must seek a therapeutic foster home or, if after the 1028 hearing is complete, Felipe is returned home, provide adequate at home services consistent with Felipe’s short- and long-term needs.
August 10, 2022
Appellate Division, First Department
Family Court has jurisdiction, in a juvenile delinquency proceeding, to entertain an application for the expungement of DNA evidence
In Matter of Francis O.,170 N.Y.S.3d 71, 2022 N.Y. Slip Op. 03969 (1st Dept.,2022) the Appellate Division held that in a proper case, Family Court has jurisdiction, in a juvenile delinquency proceeding, to entertain an application for the expungement of DNA evidence pursuant to Executive Law § 995–c(9)(b). It further found that under the facts presented, it had not been established that appellant abandoned the cup containing his DNA material or waived his privacy interest in the cup, and therefore had standing to challenge the taking of a sample of his DNA, which was obtained without his knowledge or consent and in violation of his constitutional and due process rights. It also found that under the totality of the circumstances, it was an improvident exercise of the court’s discretion to deny expungement of his DNA sample and all related information.
A permanency goal of free for adoption does not lead to a petition to terminate parental rights
In Matter of Mahkayla W, 206 A.D.3d 599, 170 N.Y.S.3d 551, 2022 N.Y. Slip Op. 04231(1st Dept.,2022) a neglect proceeding, the Appellate Division found that the father’s argument that his due process rights were violated by the change in the permanency goal was not grounded in the statute and would prejudice the subject children in obtaining permanency. A permanency goal of free for adoption does not lead to a petition to terminate parental rights, since the statute allows the court to adjudicate a particular goal yet direct the agency to engage in concurrent planning (see Family Court Act § 1089 [c][4][iii], [d][2][iv]).
Appellate Division, Second Department
Where a separation agreement contains a provision that expressly provides that modifications must be in writing, an alleged oral modification is enforceable only if there is part performance that is unequivocally referable to the oral modification
In Kirk v Kirk, --- N.Y.S.3d ----, 2022 WL 2962592, 2022 N.Y. Slip Op. 04718 (2d Dept.,2022) the parties were married on September 16, 1984, and had three children. On January 9, 2007, the parties entered into a written separation agreement. The separation agreement, as modified, was incorporated but not merged into the judgment of divorce. The Appellate Division found that the defendant demonstrated that the plaintiff breached the terms of the parties’ agreement, as modified, by failing, inter alia, to pay the real estate taxes on the former marital residence and to reimburse her for expenses incurred relative to the utilities, gardening, maintenance, and repairs. It held that where, as here, the parties’ separation agreement contains a provision that expressly provides that modifications must be in writing, an alleged oral modification is enforceable only if there is part performance that is unequivocally referable to the oral modification. In order to be unequivocally referable, conduct must be inconsistent with any other explanation. Contrary to the plaintiff’s contention, he failed to allege acts of part performance that were unequivocally referable to the alleged oral agreement to modify the terms of the parties’ separation agreement sufficient to obviate the need for a writing.
Family Offense petition against Respondents Attorney properly dismissed for lack of subject matter jurisdiction. Attorney functioning only as counsel excluded from the definition of “intimate relationship”
In Matter Uzamire v. Idehen, --- N.Y.S.3d ----, 2022 WL 2962620 (Mem), 2022 N.Y. Slip Op. 04729 (2d Dept.,2022) petitioner commenced related family offense proceedings against her husband, Ehigie Uzamere and against Uzamere’s attorney, Austin I. Idehen. Family Court, inter alia, without a hearing, dismissed the petition asserted against Idehen for lack of subject matter jurisdiction. The Appellate Division affirmed. The Family Court is a court of limited jurisdiction, and thus, it “cannot exercise powers beyond those granted to it by statute.” Pursuant to Family Court Act § 812(1)(e), the Family Court’s jurisdiction in family offense proceedings is limited to certain proscribed criminal acts that occur “between spouses or former spouses, or between parent and child or between members of the same family or household.” The definition of “members of the same family or household” includes “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship.” Expressly excluded from the definition of “intimate relationship” are “casual acquaintance[s]” and “ordinary fraternization between two individuals in business or social contexts” (Family Ct Act § 812[1][e]). Petitioner conceded that Idehen was not related to her by consanguinity and she did not allege any interactions with Idehen other than when Idehen functioned as Uzamere’s counsel. Thus, the court properly dismissed the petition asserted against Idehen for lack of subject matter jurisdiction.
Supreme Court was not required to hold a hearing on custody enforcement petition which did not seek any relief related to custody
In Soumare v White, 206 A.D.3d 661, 170 N.Y.S.3d 148, 2022 N.Y. Slip Op. 03519 (2d Dept.,2022) in an order dated October 14, 2016, the Supreme Court awarded custody of the subject child, born in 2013, to the mother and directed, inter alia, that the father would have parental access with the child every Sunday for four hours. In March 2021, the father filed a petition to enforce the order, asserting that the mother was violating the order by failing to cooperate with its parental access provisions. The petition alleged, among other things, that on a recent Sunday, when the father arrived 10 minutes late to pick up the child for parental access, the mother left the pick-up location with the child, did not permit the parental access to occur, and then failed to bring the child to the next four parental access sessions. The Supreme Court addressed the father’s petition by conducting two conferences, at which both parties made statements under oath. The court then issued an order dated April 28, 2021, which, in large part, restated the provisions of the order dated October 14, 2016. In addition, the order added one hour to the father’s weekly parental access sessions, and included a provision stating that “[t]here is a 15 min window for all pick up and drop off’s.” The Appellate Division affirmed. It held that the Supreme Court was not required to hold a hearing on his enforcement petition. The father’s petition did not involve a custody determination, which, as a general matter, “should be rendered only after a full and plenary hearing and inquiry”. The petition did not seek any relief related to custody, but rather alleged only that the mother failed to drop off the child for parental access as required by the order dated October 14, 2016, and thus sought enforcement of that order. The court, after eliciting sworn statements from both parties, fashioned a workable remedy by reminding both parties of their obligations, awarding the father an additional hour of parental access each week, and directing that a 15–minute lateness window would apply to both the father’s pick-up time and the mother’s drop-off time.
Appellate Division, Third Department
Improper to grant summary judgment motion where facts if established, raised issues concerning whether the wife was meaningfully represented during the abbreviated negotiations, and also raised an inference that the husband did not intend on engaging in a good faith negotiation of the agreement
In Spiegel v Spiegel, 206 A.D.3d 1178 (3d Dept.,2022) the Plaintiff (husband) and defendant (wife) were married in February 2011 after a lengthy period of cohabitation beginning in 2001. The parties had four children together (born in 2007, 2009, 2010 and 2017). Two days before they were married, the parties executed a prenuptial. In June 2019, the husband commenced an action for divorce. The wife answered and asserted two counterclaims, seeking an award of maintenance and a judgment setting aside the agreement as invalid. Supreme Court deemed the agreement valid and dismissed the wife’s counterclaims. The Appellate Division held,, inter alia, viewing the evidence in the light most favorable to the wife, there were issues of fact raised by the circumstances surrounding the execution of the agreement that preclude an award of summary judgment. Prior to the marriage there was a pronounced financial disparity between the husband and the wife, who had no assets at the time of the marriage and was previously employed by the state. After cohabitating for approximately 10 years, the parties decided to get married and, at the husband’s insistence, resolved to enter into a prenuptial agreement. According to the wife, she had no discussion or input on counsel of her choice, and simply was forwarded a retainer agreement and statement of client rights from her counsel’s office, which she was unable to open and never executed. After consulting with his counsel over several days, the husband approved an initial draft of the agreement, which was forwarded to the wife’s counsel on January 27, 2011. Thereafter, negotiations on the agreement between counsel began in earnest on February 1, 2011 and continued over a three-day period. The parties executed a final version of the agreement on February 4, 2011, two days before they were married. The wife stated that she did not receive an initial draft of the agreement prior to consulting with counsel. While the wife conceded that she had a single conversation with her counsel that lasted between 30 and 45 minutes, the record failed to definitively establish that she had any further meaningful discussions with counsel during the ensuing negotiations. After that discussion, the wife’s counsel sent several proposed changes concerning the agreement to the husband’s counsel. The record demonstrated that, after receiving an email from his counsel concerning the proposed changes, the husband responded to his counsel that he understood the role of the wife’s counsel as one in which he would merely explain the terms of the proposed agreement, rather than serve as her representative in a negotiation on its terms. Specifically, the husband stated that he had hired the wife’s counsel “to make sure [that the wife] fully understands the agreement,” and not “to create friction,” “re-write the agreement” or “dig into issues he does not know about.” The husband also provided a list of various circumstances that the wife’s counsel did not understand and stated that he would not provide the wife’s counsel with a detailed list of his bank accounts because he was out of town and that the wife was already familiar with his finances. The wife sharply disputed the husband’s representation, claiming that she had little knowledge of the extent of the husband’s finances beyond some basic knowledge as to certain businesses he operated. The wife also averred that she and the husband had minimal discussions pertaining to the agreement beyond his bare statements that a prenuptial agreement was necessary to protect his business interests. The wife claimed that the husband told her on various occasions that without the agreement, there would be no wedding. The wife represented that, during the negotiations, the husband told her that the agreement was as fair as it was going to get, and that she should just sign it and not focus on every detail. The wife stated that the husband provided various reassurances that he would always take care of her and that the agreement was “no big deal.” While the communications submitted by the husband in support of his motion indicate that counsel for the parties continued discussing potential changes to the agreement, there was conflicting evidence establishing the extent that the wife was meaningfully involved in those discussions. The wife averred that the first opportunity she had to review the agreement was in Florida, at which point it was already in its final form. These facts if established, raised issues concerning whether the wife was meaningfully represented during the abbreviated negotiations, and also raised an inference that the husband did not intend on engaging in a good faith negotiation of the agreement from the outset, which, if true, would be sufficient to establish overreaching on his part . Accordingly, it found find that Supreme Court improperly granted the husband’s motion.
Appellate Division, Fourth Department
Father who has promptly taken every available avenue to demonstrate that he is willing and able to enter into the fullest possible relationship with his under-six-month-old child is a “consent” father even if he has not as yet actually been able to form that relationship.
In Matter of Adoption of William, 206 A.D.3d 1696, 170 N.Y.S.3d 447, 2022 N.Y. Slip Op. 03831 (4th Dept.,2022) the Appellate Division found that respondent-petitioner Douglas W.M. (father) was a consent father within the meaning of Domestic Relations Law § 111 (1) (e) and there was a sound and substantial basis to support the determination of Family Court that the father demonstrated “his willingness to take parental responsibility” (Matter of Raquel Marie X., 76 N.Y.2d 387, 402, 559 N.Y.S.2d 855, 559 N.E.2d 418 [1990]) It held that a father who has promptly taken every available avenue to demonstrate that he is willing and able to enter into the fullest possible relationship with his under-six-month-old child should have an equally fully protected interest in preventing termination of the relationship by strangers, even if he has not as yet actually been able to form that relationship. The father did everything possible to manifest and establish his parental responsibility’ under the circumstances ... He publicly acknowledged his paternity from the outset of the pregnancy ..., and, although he did not pay any expenses in connection with the pregnancy or the birth,” he testified that all of those expenses were paid by the military. Moreover, prior to the child’s birth, the father pursued paternity testing and requested and received from the mother a commitment that he could have custody of the child, and actively began purchasing “items” in anticipation of obtaining custody of the child upon birth. Based on the mother’s commitment, the father enlisted the help of his military commanding officers to obtain custody of his child, and made plans for relatives or family friends to help care for the child until his enlistment in the military ended. It concluded that the father established his ability to assume custody of the child. Custody and housing are separate and distinct concepts. A parent who lacks housing for a child is not legally precluded from obtaining custody. Certainly, active military members should not lose custody of a child due to their service to our country. Many parents enlist the aid of family members to help them provide housing, including single parents who serve in the military. That temporary inability to provide housing should not preclude them from asserting their custodial rights to the children where, as here, they have established their intent to embrace their parental responsibility. The record supports the court’s findings that the father “reasonably and sincerely believed that the biological mother would not surrender the child for adoption ..., and that she frustrated his efforts to become involved with the child. The evidence at the hearing established that the mother lied to the father, telling him that she would give him custody of the child; misled petitioners into believing that the father did not want the child, even though she knew that he was aggressively pursuing custody; and misled the courts by filing a false affidavit stating that no one was holding himself out as the father. It found that there was a basis in the record to support a court’s determination whether a father’s consent is required, and would not disturb that determination.
Fourth Department Rules that Absent compelling circumstances, parties to a matrimonial action should not seek review of an order for temporary support
In Baxter v Baxter, 162 A.D.3d 1743, 76 N.Y.S.3d 449 (4 Dept., 2018) the Appellate Divison affirmed that part of a temporary order that imputed income to plaintiff for the purposes of calculating child support and directed defendant to pay pendente lite child support. It held that the best remedy for “any claimed inequity in awards of temporary alimony, child support or maintenance is a speedy trial where the respective finances of the parties can be ascertained and a permanent award based on the evidence may be made. Absent compelling circumstances, parties to a matrimonial action should not seek review of an order for temporary support…. Plaintiff has failed to allege the existence of compelling circumstances warranting review of the award of pendente lite child support.(citations omitted)
A person is aggrieved when he or she asks for relief but that relief is denied in whole or in part, or, when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part.
In Matter of Brady J.S., v. Darla A.B., --- N.Y.S.3d ----, 2022 WL 3094973, 2022 N.Y. Slip Op. 04858 (4th Dept.,2022) the Appellate Division affirmed an order which modified a prior custody order to award the father joint custody with the mother and grandparents and shared physical residence with the grandparents, with zones of influence for the father and grandparents he father. The Appellate Division rejected the position taken by the father that neither the mother nor the AFC had standing to appeal. The mother was aggrieved by the order on appeal inasmuch as she had joint custody of the child with the grandparents and, through counsel, she opposed the father’s amended petition, which was granted, in part, by the order on appeal. A person is aggrieved within the meaning of CPLR 5511 when he or she asks for relief but that relief is denied in whole or in part, or, when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part. The mother, as a joint custodian of the child, had a direct interest in the matter at issue that was affected by the result, and the adjudication had binding force against her rights, person or property. Based on its determination regarding the mother’s standing, it concluded that the AFC also had standing to appeal the order (see Matter of Newton v. McFarlane, 174 A.D.3d 67, 71-74, 103 N.Y.S.3d 445 [2d Dept. 2019]]).
The Appellate Division held that the failure to conduct a Lincoln hearing does not require remittal under the circumstances of this case A Lincoln hearing, though often preferable, is not mandatory, and the determination is addressed to courts discretion. In determining whether such a hearing is warranted, the court must determine whether the in camera testimony of the child will on the whole benefit the child by obtaining for the Judge significant pieces of information he or she needs to make the soundest possible decision. Here, the court was able to discern the child’s wishes as a result of the position expressed by the AFC.
An agreement is voidable on the ground of duress when threats of an unlawful act deprived the party of the exercise of free will.
In Campbell v Campbell, --- N.Y.S.3d ----, 2022 WL 3094725, 2022 N.Y. Slip Op. 04875 (4th Dept.,2022) the parties were married in June 1989 and entered into a postnuptial agreement on August 31, 2017. In July 2019, plaintiff commenced this action for divorce. Plaintiff asserted affirmative defenses alleging that the 2017 agreement should be found null and void or set aside on the grounds that, inter alia, he signed the 2017 agreement under duress and that the 2017 agreement was unconscionable. Defendant moved for summary judgment seeking, inter alia, an order dismissing plaintiff's affirmative defenses. Following a hearing, Supreme Court concluded that the 2017 agreement was unconscionable and manifestly unfair. The Appellate Division reversed. It found, among other things, that the Supreme Court erred insofar as it held that plaintiff signed the 2017 agreement under duress as a result of defendant’s emotional abuse. An agreement is voidable on the ground of duress when it is established that the party making the claim was forced to agree to it by means of a wrongful threat precluding the exercise of his [or her] free will. Generally, the aggrieved party must demonstrate that threats of an unlawful act compelled his or her performance of an act which he or she had the legal right to abstain from performing. The threat must be such as to deprive the party of the exercise of free will. Even accepting as true plaintiff’s allegations that defendant persistently urged him to sign the 2017 agreement and threatened to tell the parties’ children of plaintiff’s wrongful actions in the past, such conduct did not amount to any unlawful acts on the part of defendant sufficient to constitute duress .
Laws of 2022
Laws of 2022, Ch 365, § 2, amended Family Court Act § 121 effective June 30, 2022 to read as follows:
§ 121. Number of judges
The family court within the city of New York shall consist of sixty judges, effective January first, two thousand twenty-three. There shall be at least one family court judge resident in each county of the city of New York. (NY Legis 365 (2022), 2022 Sess. Law News of N.Y. Ch. 365)
Laws of 2022, Ch 365, § 3, amended Family Court Act § 131(d) and (g) effective June 30, 2022 to read as follows:
(d) In the county of Nassau there shall be nine family court judges and the number of such judges now existing in said county is hereby increased accordingly.
(g) There shall be a separate office of judge of the family court for the counties of Oswego and Sullivan and the compensation payable for each such separate office of judge of the family court shall be twenty-five thousand dollars per annum. In the county of Saratoga there shall be two additional family court judges and the number of such judges now existing in such county is hereby increased accordingly. The compensation of such additional family court judge shall be the same as the compensation of the existing family court judge in such county. (NY Legis 365 (2022), 2022 Sess. Law News of N.Y. Ch. 365)
Laws of 2022, Ch 479, § 7 amended Domestic Relations Law, 115, subdivision 5 effective July 26, 2022 to delete the words “mentally retarded” and replace them with the words “developmentally disabled.” It now reads:
5. Where the petition alleges that either or both of the birth parents of the child have been deprived of civil rights or are mentally ill or developmentally disabled, proof shall be submitted that such disability exists at the time of the proposed adoption.(NY Legis 479 (2022), 2022 Sess. Law News of N.Y. Ch. 479)
Laws of 2022, Ch 479, § 17 amended Family Court Act § 115(b) effective July 26, 2022 to delete the words “mentally defective or retarded” and replace them with the words “developmentally disabled’. It now reads:
(b) The family court has such other jurisdiction as is set forth in this act, including jurisdiction over habeas corpus proceedings and over applications for support, maintenance, a distribution of marital property and custody in matrimonial actions when referred to the family court by the supreme court, conciliation proceedings, and proceedings concerning physically handicapped and developmentally disabled children. (NY Legis 479 (2022), 2022 Sess. Law News of N.Y. Ch. 479)
Laws of 2022, Ch 479, § 6 amended the third undesignated paragraph Domestic Relations Law, 13–d, subdivision 1 effective July 26, 2022 to delete the words “mental retardation” and replace them with the words “developmental disability. It now reads:
Rubella infection poses a grave threat to the unborn child, especially during the first four months of pregnancy. It can lead to miscarriage, stillbirth, or one or all of the tragic defects such as deafness, blindness, crippling congenital heart disease, developmental disability and muscular and bone defects. (NY Legis 479 (2022), 2022 Sess. Law News of N.Y. Ch. 479)
CPLR 4549 Added
The civil practice law and rules was amended by adding CPLR 4549, a new exception to the rule against hearsay. This was intended to relax the common law exclusion of the hearsay statement of a party's agent or employee, provided that the statement was on a matter within the scope of that employment or agency relationship, and made during the existence of the relationship. The amendment is intended to change the extent of authority that a proponent must show in order to make the hearsay statement of an opposing party's agent or employee admissible. While under current law it appears clear that a hearsay statement will be admissible if there was actual authority to speak on behalf of the party, such authority often may be shown only by implication in light of the circumstances of the employment or agency relationship. In practice, this tends to limit "speaking authority" to only the high levels of management. See 2021 NY Legis Memo 833.
CPLR § 4549 provides that an “statement offered against an opposing party shall not be excluded from evidence as hearsay if made by a person whom the opposing party authorized to make a statement on the subject or by the opposing party's agent or employee on a matter within the scope of that relationship and during the existence of that relationship. Laws of 2021, Ch 833, effective December 31, 2021
Laws of 2022, Ch 219, § 5 amended CPLR 3102 (e) effective June 13, 2022 to read as follows:
(e) Action pending in another jurisdiction. Except as provided in section three thousand one hundred nineteen of this article, when under any mandate, writ or commission issued out of any court of record in any other state, territory, district or foreign jurisdiction, or whenever upon notice or agreement, it is required to take the testimony of a witness in the state, he or she may be compelled to appear and testify in the same manner and by the same process as may be employed for the purpose of taking testimony in actions pending in the state. The supreme court or a county court shall make any appropriate order in aid of taking such a deposition; provided that no order may be issued under this section in connection with an out-of-state proceeding relating to any abortion services or procedures which were legally performed in this state, unless such out-of-state proceeding (1) sounds in tort or contract, or is based on statute, (2) is actionable, in an equivalent or similar manner, under the laws of this state, and (3) was brought by the patient who received reproductive healthcare, or the patient's legal representative.
Laws of 2022, Ch 219, § 4 amended CPLR 3119 by adding a new subdivision (g) effective June 13, 2022 to read as follows:
(g) Out-of-state abortion proceedings. Notwithstanding any other provisions of this section or any other law, no court or county clerk shall issue a subpoena under this section in connection with an out-of-state proceeding relating to any abortion services or procedures which were legally performed in this state, unless such out-of-state proceeding (1) sounds in tort or contract, or is based on statute, (2) is actionable, in an equivalent or similar manner, under the laws of this state, and (3) was brought by the patient who received reproductive healthcare, or the patient's legal representative.
July 27, 2022
Appellate Division, Second Department
A court acting pursuant to the UCCJEA which communicates with a court of another state on substantive matters, if the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.
In Matter of Touchet v Horstman, --- N.Y.S.3d ----, 2022 WL 2823157, 2022 N.Y. Slip Op. 04633 (2d Dept.,2022) the Appellate Division pointed out that when a court acting pursuant to the UCCJEA communicates with a court of another state on substantive matters, it must make a record of the communication, promptly inform the parties of the communication, and grant the parties access to the record (see Domestic Relations Law § 75–i[4]). The court may, in its discretion, allow the parties to participate in the communication, but “[i]f the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made” (Domestic Relations Law § 75–i[2]). Here, the Family Court correctly determined that, in light of the pending proceedings in California, it was required to communicate with the California court (see Domestic Relations Law §§ 76–e, 77–f). However, after providing that information to the parties, who had not participated in the communication, the court immediately announced its decision on the issue of jurisdiction, without affording the parties an opportunity to present facts and legal arguments. This did not comport with the requirements of Domestic Relations Law § 75–i(2), and, under the circumstances of this case, required reversal.
July 20, 2022
New and Revised Uniform Rules Applicable in Matrimonial Actions as of July 1, 2022
Administrative Order AO/141/22 adopted revisions to 22 NYCRR 202.16 and 202.16-b (Matrimonial Rules) effective July 1, 2022. The Administrative Order makes most of 22 NYCRR Part 202, which includes the recently enacted Commercial Division Rules, applicable to matrimonial actions and proceedings, except as otherwise provided 22 NYCRR 202.16 and in 22 NYCRR 202.16-a , 202.16-b, and 202.18, which sections control in the event of conflict. Click here to download copies of the 31 new and revised rules Copies of the revised Preliminary Conference form may be downloaded from our website at www.nysdivorce.com
The Uniform Rules which are incorporated into the matrimonial rules include the following rules which were added to 22 NYCRR Part 202 effective February 1, 2021: 22 NYCRR 202.8-a; 22 NYCRR 202.8-b; 22 NYCRR 202.8-c; 22 NYCRR 202.8-d; 22 NYCRR 202.8-e; 22 NYCRR 202.8-f and 22 NYCRR 202.8-g; 22 NYCRR 202.10; 22 NYCRR 202.11; 22 NYCRR 202.20; 22 NYCRR 202.20-a; 22 NYCRR 202.20-b; 22 NYCRR 202.20-c; 22 NYCRR 202.20-d; 22 NYCRR 202.20-e; 22 NYCRR 202.20-f; 22 NYCRR 202.20-g; 22 NYCRR 202.20-h; 22 NYCRR 202.20-I; 22 NYCRR 202.20-j; 22 NYCRR 202.23; 22 NYCRR 202.29; 22 NYCRR 202.34; and 22 NYCRR 202.37.
In addition, the Uniform Rules which are incorporated into the matrimonial rules include the following rules which were amended: 22 NYCRR 202.1, Added (f) & (g) on Dec. 29. 2020, effective February 1, 2021; 22 NYCRR 202.5, Amended (a)(1) & added (a)(2) on Dec. 29. 2020, effective February 1, 2021; 22 NYCRR 202.5-a, Amended (a) & (b) on Dec. 29. 2020, effective February 1, 2021; 22 NYCRR 202.6, Amended (b) on Jan. 7, 2022, effective February 1, 2022; 22 NYCRR 202.26 , Amended on Dec. 29. 2020, effective February 1, 2021; and 22 NYCRR 202.28, Amended (a) & (b) on Dec. 29. 2020, effective February 1, 2021. Go to our website at www.nysdivorce.com for copies of all of the revised rules.
Appellate Division, Second Department
Family Court Act does not provide for dismissal of a proceeding on the ground of improper or inconvenient venue
In Matter of Vandunk v. Bonilla, --- N.Y.S.3d ----, 2022 WL 2709352 (Mem), 2022 N.Y. Slip Op. 04554 (2d Dept.,2022) the Appellate Division held that the Family court erred in dismissing the family offense petition on the ground that the proceeding was commenced in the wrong county. A family offense proceeding may be originated in the county in which the act or acts referred to in the petition allegedly occurred or in which the family or household resides or in which any party resides ” (FCA § 818). Since the mother resided in Rockland County, the mother commenced this proceeding in a proper venue. The Appellate Division noted that even if the mother had commenced this proceeding in an improper venue, that would not have been a basis for dismissing the petition. The Family Court Act does not provide for dismissal of a proceeding on the ground of improper or inconvenient venue. The proper remedy when the venue of a proceeding is placed in an improper or inconvenient county is to transfer the proceeding to the proper or more convenient county pursuant to Family Court Act § 174.
The right to due process encompasses a meaningful opportunity to be heard at a fact-finding hearing on a neglect petition and to present evidence relevant to the proceedings
In Matter of Serena G, --- N.Y.S.3d ----, 2022 WL 2709345, 2022 N.Y. Slip Op. 04547 (2d Dept.,2022) the Appellate Division held that the Family Court improperly made findings of fact without a hearing on the derivative neglect petition. On the second day of the fact-finding hearing on the neglect petition as to Serena, the court described the proceeding as a “continuing trial,” and made no reference on the record to the newly-filed derivative neglect petition as to Vincent (see Family Ct Act § 1041[a]). On the third day of the fact-finding hearing, the court again made no reference to Vincent. The only reference in the available record to the Family Court directing a joint hearing or consolidation of the two petitions occurred at the commencement of the dispositional hearing, at which time the court confirmed that it had consolidated the petitions for purposes of its decision dated October 9, 2020. It held that the right to due process encompasses a meaningful opportunity to be heard at a fact-finding hearing on a neglect petition and to present evidence relevant to the proceedings. The proceeding with respect to Vincent had to be remitted to the Family Court, for a fact-finding hearing, in order to afford the parties an opportunity to introduce evidence relevant to the petition to adjudicate Vincent a derivatively neglected child.
July 13, 2022
New and Revised Uniform Rules Applicable in Matrimonial Actions as of July 1, 2022
Administrative Order AO/141/22 adopted revisions to 22 NYCRR 202.16 and 202.16-b (Matrimonial Rules) effective July 1, 2022. The Administrative Order makes most of 22 NYCRR Part 202, which includes the recently enacted Commercial Division Rules, applicable to matrimonial actions and proceedings, except as otherwise provided 22 NYCRR 202.16 and in 22 NYCRR 202.16-a , 202.16-b, and 202.18, which sections control in the event of conflict. Click here to download copies of the 31 new and revised rules Copies of the revised Preliminary Conference form may be downloaded from our website at www.nysdivorce.com
The Uniform Rules which are incorporated into the matrimonial rules include the following rules which were added to 22 NYCRR Part 202 effective February 1, 2021: 22 NYCRR 202.8-a; 22 NYCRR 202.8-b; 22 NYCRR 202.8-c; 22 NYCRR 202.8-d; 22 NYCRR 202.8-e; 22 NYCRR 202.8-f and 22 NYCRR 202.8-g; 22 NYCRR 202.10; 22 NYCRR 202.11; 22 NYCRR 202.20; 22 NYCRR 202.20-a; 22 NYCRR 202.20-b; 22 NYCRR 202.20-c; 22 NYCRR 202.20-d; 22 NYCRR 202.20-e; 22 NYCRR 202.20-f; 22 NYCRR 202.20-g; 22 NYCRR 202.20-h; 22 NYCRR 202.20-I; 22 NYCRR 202.20-j; 22 NYCRR 202.23; 22 NYCRR 202.29; 22 NYCRR 202.34; and 22 NYCRR 202.37.
In addition, the Uniform Rules which are incorporated into the matrimonial rules include the following rules which were amended: 22 NYCRR 202.1, Added (f) & (g) on Dec. 29. 2020, effective February 1, 2021; 22 NYCRR 202.5, Amended (a)(1) & added (a)(2) on Dec. 29. 2020, effective February 1, 2021; 22 NYCRR 202.5-a, Amended (a) & (b) on Dec. 29. 2020, effective February 1, 2021; 22 NYCRR 202.6, Amended (b) on Jan. 7, 2022, effective February 1, 2022; 22 NYCRR 202.26 , Amended on Dec. 29. 2020, effective February 1, 2021; and 22 NYCRR 202.28, Amended (a) & (b) on Dec. 29. 2020, effective February 1, 2021. Go to our website at www.nysdivorce.com for copies of all of the revised rules.
ew and Revised Uniform Rules Applicable in Matrimonial Actions as of July 1, 2022
Administrative Order AO/141/22 adopted revisions to 22 NYCRR 202.16 and 202.16-b (Matrimonial Rules) effective July 1, 2022. The Administrative Order makes most of 22 NYCRR Part 202, which includes the recently enacted Commercial Division Rules, applicable to matrimonial actions and proceedings, except as otherwise provided 22 NYCRR 202.16 and in 22 NYCRR 202.16-a , 202.16-b, and 202.18, which sections control in the event of conflict. Copies of the 31 new and revised rules (with Appendix A and Appendix B) and revised Preliminary Conference form may be downloaded by clicking the links above or from our website at www.nysdivorce.com
The Uniform Rules which have been incorporated into the matrimonial rules encourage appearances for the argument of motions and for conferences by electronic means. 22 NYCRR 202.8-f provides that oral arguments may be conducted by the court by electronic means and requires each court or court part to adopt a procedure governing requests for oral argument of motions. In the absence such a procedure by a particular court or part, any party may request oral argument of a motion by letter accompanying the motion papers. Notice of the date selected by the court must be given, if practicable, at least 14 days before the scheduled oral argument. 22 NYCRR 202.10 (a) provides that any party may request to appear at a conference by electronic means. Where feasible and appropriate, the court is encouraged to grant such requests.
Administrative Order AO/141/22 also adopted a revised Preliminary Conference Stipulation/Order-Contested Matrimonial Form (“PC Order”) for use in matrimonial matters effective July 1, 2022 which may be downloaded from the Divorce Resources website under Statewide Official Forms at effective July 1, 2022.
The new rules which are incorporated into the matrimonial rules include the following rules which were added to 22 NYCRR Part 202 effective February 1, 2021: Section 202.8-a; 202.8-b; 202.8-c;202.8-d;202.8-e; 202.8-f and 202.8-g; 202.10; 202.11; 202.20; 202.20-a; 202.20-b; 202.20-c; 202.20-d; 202.20-e; 202.20-f; 202.20-g; 202.20-h; 202.20-I; 202.20-j; 202.23; 202.29; 202.34; 202.37 Added on Dec. 29. 2020, effective February 1, 2021
In addition, they include the following rules which were amended as follows: Section 202.1 Added (f) & (g) on Dec. 29. 2020, effective February 1, 2021; Section 202.5 Amended (a)(1) & added (a)(2) on Dec. 29. 2020, effective February 1, 2021;Section 202.5-a Amended (a) & (b) on Dec. 29. 2020, effective February 1, 2021;Section 202.6 Amended (b) on Jan. 7, 2022, effective February 1, 2022;Section 202.26 Amended on Dec. 29. 2020, effective February 1, 2021; and Section 202.28 Amended (a) & (b) on Dec. 29. 2020, effective February 1, 2021.
Revised 22 NYCRR 202.16 and 202.16-b follow:
Section 202.16 Application of Part 202 and Section 202.16. Matrimonial actions; calendar control of financial disclosure in actions and proceedings involving alimony, maintenance, child support and equitable distribution; motions for alimony, counsel fees pendente lite, and child support; special rules
(a) Applicability of Part 202 and Section 202.16.
(1) Part 202 shall be applicable to civil actions and proceedings in the Supreme Court, including, but not limited to, matrimonial actions and proceedings, except as otherwise provided in this section 202.16 and in sections 202.16-a, 202.16-b, and 202.18, which sections shall control in the event of conflict.
(2) This section shall be applicable to all contested actions and proceedings in the Supreme Court in which statements of net worth are required by section 236 of the Domestic Relations Law to be filed and in which a judicial determination may be made with respect to alimony, counsel fees, pendente lite, maintenance, custody and visitation, child support, or the equitable distribution of property, including those referred to Family Court by the Supreme Court pursuant to section 464 of the Family Court Act.
(b) Form of Statements of Net Worth.
Sworn statements of net worth, except as provided in subdivision (k) of this section, exchanged and filed with the court pursuant to section 236 of the Domestic Relations Law, shall be in substantial compliance with the Statement of Net Worth form contained in appendix A of this Part.
(c) Retainer Agreements
(1) A signed copy of the attorney's retainer agreement with the client shall accompany the statement of net worth filed with the court, and the court shall examine the agreement to assure that it conforms to Appellate Division attorney conduct and disciplinary rules. Where substitution of counsel occurs after the filing with the court of the net worth statement, a signed copy of the attorney's retainer agreement shall be filed with the court within 10 days of its execution.
(2) An attorney seeking to obtain an interest in any property of his or her client to secure payment of the attorney's fee shall make application to the court for approval of said interest on notice to the client and to his or her adversary. The application may be granted only after the court reviews the finances of the parties and an application for attorney's fees.
(d) Request for Judicial Intervention.
A request for judicial intervention shall be filed with the court by the plaintiff no later than 45 days from the date of service of the summons and complaint or summons with notice upon the defendant, unless both parties file a notice of no necessity with the court, in which event the request for judicial intervention may be filed no later than 120 days from the date of service of the summons and complaint or summons with notice upon the defendant. Notwithstanding section 202.6(a) of this Part, the court shall accept a request for judicial intervention that is not accompanied by other papers to be filed in court.
(e) Certification of Paper and Obligations of Counsel Appearing Before the Court
(1) Every paper served on another party or filed or submitted to the court in a matrimonial action shall be signed as provided in section 130-1.1a of this Title.
(2) Counsel who appear before the court must be familiar with the case with regard to which they appear and be fully prepared and authorized to discuss and resolve the issues which are scheduled to be the subject of the appearance. Failure to comply with this rule may be treated as a default for purposes of Rule 202.27 and/or may be treated as a failure to appear for purposes of Rule 130.21, provided that, in matrimonial actions and proceedings, consistent with applicable case law on defaults in matrimonial actions, failure to comply with this rule may, either in lieu of or in addition to any other direction, be considered in the determination of any award of attorney fees or expenses.
(f) Preliminary Conference.
(1) In all actions or proceedings to which this section of the rules is applicable, a preliminary conference shall be ordered by the court to be held within 45 days after the action has been assigned. Such order shall set the time and date for the conference and shall specify the papers that shall be exchanged between the parties. These papers must be exchanged no later than 10 days prior to the preliminary conference, unless the court directs otherwise. These papers shall include:
(i) statements of net worth, which also shall be filed with the court no later than 10 days prior to the preliminary conference;
(ii) all paycheck stubs for the current calendar year and the last paycheck stub for the immediately preceding calendar year;
(iii) all filed State and Federal income tax returns for the previous three years, including both personal returns and returns filed on behalf of any partnership or closely held corporation of which the party is a partner or shareholder;
(iv) all W-2 wage and tax statements, 1099 forms, and K-1 forms for any year in the past three years in which the party did not file State and Federal income tax returns;
(v) all statements of accounts received during the past three years from each financial institution in which the party has maintained any account in which cash or securities are held;
. (vi) the statements immediately preceding and following the date of commencement of the matrimonial action pertaining to:
(a) any policy of life insurance having a cash or dividend surrender value; and
(b) any deferred compensation plan of any type or nature in which the party has an interest including, but not limited to, Individual Retirement Accounts, pensions, profit- sharing plans, Keogh plans, 401(k) plans and other retirement plans.
(1-a) Where both parties are represented by counsel, counsel shall consult with each other prior to the preliminary conference to discuss the matters set forth in paragraph (2) below and in NYCRR §202.11 in a good faith effort to· reach agreement on such matters. Notwithstanding NYCRR §202.11, no prior consultation is required where either or both of the parties is self represented. Counsel shall, prior to or at the conference, submit to the court a writing with respect to any resolutions reached, which the court shall "so order" if approved and in proper form.
(1-b) Both parties personally must be present in court at the time of the conference, and the judge personally shall address the parties at some time during the conference.
(2) The matters to be considered at the conference may include, among other things:
(i) applications for pendente lite relief, including interim counsel fees;
(ii) compliance with the requirement of compulsory financial disclosure, including the exchange and filing of a supplemental statement of net worth indicating material changes in any previously exchanged and filed statement of net worth, and, including the number and length of depositions, the number of interrogatories, and agreement of the parties to comply with Guidelines on Electronically Stored Information. Unless otherwise stipulated by the parties or ordered by the court, interrogatories shall be no more than 25 in number including subparts; and depositions shall be no more than 7 hours long. The Provisions of NYCRR §202.20-b(a)(l) limiting the number of depositions taken by plaintiffs, or by defendants, or by third-party defendants, shall not apply to matrimonial actions.
(iii) simplification and limitation of the issues;
(iv) the establishment of a timetable for the completion of all disclosure proceedings, provided that all such procedures must be completed and the note of issue filed within six months from the commencement of the conference, unless otherwise shortened or extended by the court depending upon the circumstances of the case;
(v) the completion of a preliminary conference order substantially in the form contained in Appendix "G" to these rules, with attachments; and
(vi) any other matters which the court shall deem appropriate.
(3) At the close of the conference, the court shall direct the parties to stipulate, in writing or on the record, as to all resolved issues, which the court then shall "so order," and as to all issues with respect to fault, custody and finance that remain unresolved. Any issues with respect to fault, custody and finance that are not specifically described in writing or on the record at that time may not be raised in the action unless good cause is shown. The court shall fix a schedule for discovery as to all unresolved issues and, in a noncomplex case, shall schedule a date for trial not later than six months from the date of the conference. The court may appoint an attorney for
the infant children, or may direct the parties to file with the court, within 30 days of the conference, a list of suitable attorneys for children for selection by the court. The court also may direct that a list of expert witnesses be filed with the court within 30 days of the conference from which the court may select a neutral expert to assist the court. The court shall schedule a compliance conference unless the court dispenses with the conference based upon a stipulation of compliance filed by the parties.
(4) Unless the court excuses their presence, the parties personally must be present in court at the time of the compliance conference. If the parties are present in court, the judge personally shall address them at some time during the conference. If the parties are present in court, the judge personally shall address them at some point during the conference. Where both parties are represented by counsel, counsel shall consult with each other prior to the compliance conference in a good faith effort to resolve any outstanding issues. Notwithstanding NYCRR §202.11, no prior consultation is required where either or both of the parties is self-represented. Counsel shall, prior to or at the compliance conference, submit to the court a writing with respect to any resolutions reached, which the court shall "so order" if approved and in proper form.
(5) In accordance with Section 202.20-c (f), ,absent good cause, a party may not use at trial or otherwise any document which was not produced in response to a request for such document or category of document, which request was not objected to, or, if objected to, such objection was overruled by the court, provided, however, the court may exercise its discretion to impose such other, further, or additional penalty for non-disclosure as may be authorized by law and which may be more appropriate in a matrimonial action than preclusion or where there is a continuing obligation to update (e.g., updated tax returns, W-2 statements, etc.).
(6) The Court shall alert the parties to the requirements of 22 NYCRR § 202.20-c regarding requests for documents;§ 202.20-e regarding adherence to discovery schedule, and§ 202.20-f regarding discovery disputes, and shall address the issues of potential for default, preclusion, denial of discovery, drawing inferences, or deeming issues to be true, as well as sanctions and/or counsel fees in the event default or preclusion or such other remedies are not appropriate in a matrimonial action.
(g) Expert Witnesses and Other Trial Matters.
(1) Responses to demands for expert information pursuant to CPLR section 3101(d) shall be served within 20 days following service of such demands.
(2) Each expert witness whom a party expects to call at the trial shall file with the court a written report, which shall be exchanged and filed with the court no later than 60 days before the date set for trial, and reply reports, if any, shall be exchanged and filed no later than 30 days before such date. Failure to file with the court a report in conformance with these requirements may, in the court's discretion, preclude the use of the expert. Except for good cause shown, the reports exchanged between the parties shall be the only reports admissible at trial. Late retention of experts and consequent late submission of reports shall be permitted only upon a showing of good cause as authorized by CPLR 3101(d)(l)(i). In the discretion of the court, written reports may be used to substitute for direct testimony at the trial, but the reports shall be submitted by the expert under oath, and the expert shall be present and available for cross- examination. In the discretion of the court, in a proper case, parties may be bound by the expert's report in their direct case.
(3) Pursuant to NYCRR §202.26, in cases in which both parties are represented by counsel and each party has called, or intends to call, an expert witness on issues of finances (e.g., equitable · distribution. maintenance, child support), the court may direct that, prior to, or during trial, counsel consult in good faith to identify those aspects of their respective experts' testimony that are not in dispute. The court may further direct that any agreements reached in this regard shall be reduced to a written stipulation. Such consultation shall not be required where one or both parties is self-represented or where the expert testimony relates to matters of child custody or parental access, domestic violence, domestic abuse, or child neglect or abuse.
(4) The provisions of section 202.20-a regarding privilege logs shall not apply to matrimonial actions and proceedings unless the court orders otherwise.
(5) Parties and non-parties should adhere to the Electronically Store Information ("ESI") Guidelines set forth in an Appendix to the Uniform Civil Rules
(6) At the commencement of the trial or at such time as the court may direct, each party shall identify in writing for the court the witnesses it intends to call, the order in which they shall testify and the estimated length of their testimony, and shall provide a copy of such witness list to opposing counsel. Counsel shall separately identify for the court only a list of the witnesses who may becalled solely for rebuttal or with regard to credibility. The court may permit for good cause shown and in the absence of substantial prejudice, a party to call a witness to testify who was not identified on the witness list submitted by that party. The estimates of the length of testimony and the order of witnesses provided by counsel are advisory only and the court may permit witnesses to be called in a different order and may permit further testimony from a witness notwithstanding that the time estimate for such witness has been exceeded.
(h) Statement of Proposed Disposition.
(1) Each party shall exchange a statement setting forth the following:
(i) the assets claimed to be marital property;
(ii) the assets claimed to be separate property;
(iii) an allocation of debts or liabilities to specific marital or separate assets, where appropriate;
(iv) the amount requested for maintenance, indicating and .elaborating upon the statutory factors forming the basis for the maintenance request;
(v) the proposal for equitable distribution, where appropriate, indicating and elaborating upon the statutory factors forming the basis for the proposed distribution;
(vi) the proposal for a distributive award, if requested, including a showing of the need for a distributive award;
(vii) the proposed plan for child support, indicating and elaborating upon the statutory factors upon which the proposal is based; and
(viii) the proposed plan for custody and visitation of any children involved in the proceeding, setting forth the reasons therefor.
(2) A copy of any written agreement entered into by the parties relating to financial arrangements or custody or visitation shall be annexed-to the statement referred to in paragraph (1) of this subdivision.
(3) The statement referred to in paragraph (1) of this subdivision, with proof of service upon the other party, shall, with the note of issue, be filed with the court. The other party, if he or she has not already done so, shall file with the court a statement complying with paragraph (1) of this subdivision within 20 days of such service.
(i) Filing of Note of Issue.
No action or proceeding to which this section is applicable shall be deemed ready for trial unless there is compliance with this section by the party filing the note of issue and certificate of readiness.
j) Referral to Family Court.
In all actions or proceedings to which this section is applicable referred to the Family Court by the Supreme Court pursuant to section 464 of the Family Court Act, all statements, including supplemental statements, exchanged and filed by the parties pursuant to this section shall be transmitted _to the Family Court with the order of referral.
(k) Motions for Alimony, Maintenance, Counsel Fees Pendente Lite and Child support (other than under section 237(c) or 238 of the Domestic Relations Law).
Unless, on application made to the court, the requirements of this subdivision be waived for good cause shown, or unless otherwise expressly provided by any provision of the CPLR or other statute, the following requirements shall govern motions for alimony, maintenance, counsel fees (other than a motion made pursuant to section 237(c) or 238 of the Domestic Relations Law for counsel fees for services rendered by an attorney to secure the enforcement of a previously granted order or decree) or child support or any modification of an award thereof:
(1) Such motion shall be made before or at the preliminary conference, if practicable.
(2) No motion shall be heard unless the moving papers include a statement of net worth in the official form prescribed by subdivision (b) of this section.
(3) No motion for counsel fees and expenses shall be heard unless the moving papers also include the affidavit of the movant's attorney stating the moneys, if any, received on account of such attorney's fee from the movant or any other person on behalf of the movant, the hourly amount charged by the attorney, the amounts paid, or to be paid, to counsel and any experts, and any additional costs, disbursements or expenses, and the moneys such attorney has been promised by, or the agreement made with, the movant or other persons on behalf of the movant, concerning or in payment of the fee. Fees and expenses of experts shall include appraisal, accounting, actuarial, investigative and other fees and expenses (including costs for processing of NYSCEF documents because of the inability of a self-represented party that desires to e-file to have computer access or afford internet accessibility) to enable a spouse to carry on or defend a matrimonial action or proceeding in the Supreme Court.
(4) The party opposing any motion shall be deemed to have admitted, for the purpose of the motion but not otherwise, such facts set forth in the moving party's statement of net worth as are not controverted in:
(i) a statement of net worth, in the official form prescribed by this section, completed and sworn to by the opposing party, and made a part of the answering papers; or
(ii) other sworn statements or affidavits with respect to any fact which is not feasible to controvert in the opposing party's statement of net worth.
(5) The failure to comply with the provisions of this subdivision shall be good cause, in the discretion of the judge presiding, either:
(i) to draw an inference favorable to the adverse party with respect to any disputed fact or issue affected by such failure; or
(ii) to deny the motion without prejudice to renewal upon compliance with the provisions of this section.
(6) The notice of motion submitted with any motion for or related to interim maintenance or child support shall contain a notation indicating the nature of the motion. Any such motion shall be determined within 30 days after the motion is submitted for decision.
(7) Upon any application for an award of counsel fees or fees and expenses of experts made prior to the conclusion of the trial of the action, the court shall set forth in specific detail, in writing or on the record, the factors it considered and the reasons for its decision.
(l) Hearings or trials pertaining to temporary or permanent custody or visitation shall proceed from day to day conclusion. With respect to other issues before the court, to the extent feasible, trial should proceed from day to day to conclusion.
(m) The court may, for good cause, relieve the parties and counsel from the requirements of 22 NYCRR §202.34 regarding pre-marking of exhibits and 22 NYCRR §202.20-h. regarding pre trial memoranda and Exhibit Books.
(n) Upon request of a party, the court may permit direct testimony of that party's own witness in a non-jury trial or evidentiary hearing shall be submitted in affidavit form, provided, however, that the opposing party shall have the right to object to statements in the direct testimony affidavit, and the court shall rule on such objections, just as if the statements had been made orally in open court. Where an objection to a portion of a direct testimony affidavit is sustained, the court may direct that such portion be stricken. The submission of direct testimony in affidavit form shall not affect any right to conduct cross-examination or re-direct examination of the witness. Notwithstanding the foregoing, in an action for custody, visitation, contempt, order of protection or exclusive occupancy, however. except as provided in NYCRR §202.18, a party or a party's own witness may not testify on direct examination by affidavit.
\(O) Omission or Redaction of Confidential Personal Information from Matrimonial Decisions.
(1) Except as otherwise provided by rule or law or court order, and whether or not a sealing order is or has been sought, prior to submitting any decision, order, judgment, or combined decision and order or judgment in a matrimonial action for publication, the court shall redact the following confidential personal information:
i. the taxpayer identification number of an individual or an entity, including a social security number, an employer identification number, and an individual taxpayer identification number, except the last four digits thereof;
ii. the actual home address of the parties to the matrimonial action and their children;
iii. the full name of an individual known to be a minor under the age of eighteen (18) years of age, except the minor's initials or the first name of the minor with the first initial of the minor’s last name; provided that nothing herein shall prevent the court from granting a request to use only the minor’s initials or only the word “Anonymous;”;
iv. the date of an individual’s birth (including the date of birth of minor children), except the year of birth;
v. the full name of either party where there are allegations of domestic violence, neglect, abuse, juvenile delinquency or mental health issues, except the party’s initials or the first name of the party with the first initial of the party’s last name; provided that nothing herein shall prevent the court from granting a request to use only the party’s initials or only the word “Anonymous;”; and
vi. a financial account number, including a credit and/or debit card number, a bank account number, an investment account number, and/or an insurance account number (including a health insurance account number), except the last four digits or letters thereof.
(2) Nothing herein shall require parties to omit or redact personal confidential information as described herein or 22NYCRR § 202.5(e) in papers submitted to the court for filing.
(3) Nothing herein shall prevent the court from omitting or redacting more personal confidential information than is required by this rule, either upon the request of a party or sua sponte.
Amended effective July 1, 2022
Section 202.16-b Submission of Written Applications in Contested Matrimonial Actions.
(1) Applicability. This section shall be applicable to all contested matrimonial actions and proceedings in Supreme Court authorized by subdivision (2) of Part B of section 236 of the Domestic Relations Law.
(2) Unless otherwise expressly provided by any provision of the CPLR or other statute, and in addition to the requirements of 22 NYCRR §202.16 (k) where applicable, the following rules and limitations are required for the submission of papers in all applications (including post judgment applications) for alimony, maintenance, counsel fees, child support, exclusive occupancy, custody and visitation unless said requirements are waived by the judge for good cause shown:
(i) Applications that are deemed an emergency must comply with 22 NYCRR§202.8 (e) and provide for notice, where applicable, in accordance with same. These emergency applications shall receive a preference by the clerk for processing and the court for signature. Designating an application as an emergency without good cause may be punishable by the issuance of sanctions pursuant to Part 130 of the Rules of the Chief Administrative Judge. Any application designated as an emergency without good cause shall be processed and considered in the ordinary course of local court procedures.
(ii) Where practicable, all orders to show cause, motions or cross-motions for relief should be made in one order to show cause or motion or cross-motion. The utilization of the requirement to move by order to show cause or notice of motion shall be governed by local part rule.
(iii) Length of Papers: Parties shall comply with the word limitations in subsections (a)-(f) of 22 NYCRR §202.8(b) as amended.
(iv) Form of Papers: Parties shall comply with the requirements of 22 NYCRR §202.5(a) as amended.
(v) Notwithstanding 22 NYCRR §202.5 -a, papers and correspondence may be transmitted to the court by fax by a self-represented party without prior court approval unless prohibited by a local part rule or judicial order.
(vi) Self-represented litigants may submit handwritten applications provided that the handwriting is legible and otherwise in conformity with all applicable rules
(vii) Except for affidavits of net worth (pursuant to 22 NYCRR §202.16 (b)), retainer agreements (pursuant to Rule 1400.3 of the Joint Rules of the Appellate Division), maintenance guidelines worksheets and/or child support worksheets, or counsel fee billing statements or affirmations or affidavits related to counsel fees (pursuant to Domestic Relations Law §237 and 22 NYCRR §202.16(k)), all of which may include attachments thereto, all exhibits annexed to any motion, cross motion, order to show cause, opposition or reply may not be greater than three (3) inches thick without prior permission of the court. All such exhibits must contain exhibit tabs.
Amended effective July 1, 2022
Appellate Division, Second Department
It is error as a matter of law to make an order respecting custody in a pendente lite context based on controverted allegations without having had the benefit of a full hearing
In Chukwuemeka v Chukwuemeka, --- N.Y.S.3d ----, 2022 WL 2443815 (Mem), 2022 N.Y. Slip Op. 04287 (2d Dept.,2022) the parties were married in January 2017 and had one child, born in 2017. In August 2019, the plaintiff commenced the action for a divorce. Supreme Court, among other things, granted the plaintiff’s motion, in effect, for temporary primary residential custody of the parties’ child, without conducting a hearing. The Appellate Division reversed and remitted for an expedited hearing. It held that custody determinations should generally be made ‘only after a full and plenary hearing and inquiry. While the general right to a hearing in custody cases is not absolute, where facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required. Moreover, while temporary custody may generally be properly fixed without a hearing where sufficient facts are shown by uncontroverted affidavits, it is error as a matter of law to make an order respecting custody, even in a pendente lite context, based on controverted allegations without having had the benefit of a full hearing. The record demonstrated disputed factual issues so as to require a hearing on the plaintiff’s motion, in effect, for temporary primary residential custody of the child.
Failure to obtain a marriage license has no effect on the validity of the marriage
In Joseph v Singh, --- N.Y.S.3d ----, 2022 WL 2335753 (Mem), 2022 N.Y. Slip Op. 04158 (2d Dept.,2022) an action for a divorce the Appellate Division rejected the defendants argument that the Supreme Court had no authority to enter a judgment of divorce, because the parties never entered into a valid marriage with each other. The evidence before the Supreme Court established that, on October 13, 1995, the parties took part in a Hindu wedding ceremony, conducted by a Hindu religious leader and attended by several guests. Despite the defendant’s assertion that the parties never intended to be married, the parties solemnly declared in the presence of a clergyman and at least one witness that they took each other as husband and wife and, thus, they entered into a valid marriage. Contrary to the defendant’s contention, the parties’ failure to obtain a marriage license had no effect on the validity of their marriage (see Domestic Relations Law § 25).
What qualifies as an “intimate relationship” within the meaning of FCA§ 812(1)(e) is based upon consideration of the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship.
In Matter of Charter v Allen, --- N.Y.S.3d ----, 2022 WL 2335734, 2022 N.Y. Slip Op. 04167 (2d Dept.,2022) the petitioner commenced a family offense proceeding against her sister’s partner (respondent). Family Court dismissed the petition for lack of subject matter jurisdiction. The Appellate Division reversed. It pointed out that Family Court Act article 8 applies to persons who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” (FCA. § 812[1][e]). Although Family Court Act § 812(1)(e) expressly excludes a “casual acquaintance” and “ordinary fraternization between two individuals in business or social contexts” from the definition of “intimate relationship,” “the legislature left it to the courts to determine on a case-by-case basis what qualifies as an intimate relationship within the meaning of Family Court Act § 812(1)(e) based upon consideration of factors such as ‘the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. The record demonstrated that the petitioner knew the respondent for more than 20 years, and the respondent and the petitioner’s sister held themselves out as husband and wife. During that period of time, the petitioner and the respondent engaged in general social activities at each other’s homes, attended holiday and birthday celebrations together, and traveled together. The petitioner’s sister and the respondent had a daughter together who identified the petitioner as her aunt. The petitioner resided in one of the units of a three-family home. The petitioner’s sister, the respondent, and their daughter, who was approximately 18 years old at the time of the hearing, resided in one of the other units of that three-family home. The home was owned by the mother of the petitioner and the petitioner’s sister. Under the circumstances, the Family Court should have denied the respondent’s application to dismiss the petition for lack of subject matter jurisdiction (see Family Ct Act § 812[1]).
Appellate Division, Third Department
Party seeking to modify a separation agreement that was incorporated, without merger, into a divorce decree after 2010 Amendments has the burden of establishing a substantial change in circumstances. Must be “sound and substantial support in the record for imputation of income.
In Yezzi v Small, --- N.Y.S.3d ----, 2022 WL 2346962, 2022 N.Y. Slip Op. 04198(3d Dept.,2022) Plaintiff ( father) and defendant (mother) were married in 1993 and had two children, born in 2004 and 2006. In 2012, the parties signed a separation agreement. In 2014, the father commenced the action for divorce and Supreme Court issued a judgment of divorce that incorporated, but did not merge, the separation agreement. The mother moved for modification of the custody and child support arrangements. Following a hearing, the court issued an order imputing income to the father and, inter alia, ordering him to pay child support.
The Appellate Division observed that the mother, as the party seeking to modify a separation agreement that was incorporated, without merger, into a divorce decree, bore the burden of establishing a substantial change in circumstances (see Domestic Relations Law § 236[B][9][b][2][i]). The separation agreement provided that, because the parties were entering into “a true 50/50 custodial arrangement” and the children’s needs were adequately being met in each household, there would be no child support payment but, instead, the parties would contribute to a joint checking account in proportion to their respective incomes to cover the children’s expenses each month, with the father contributing $520 and the mother contributing $780. The parties also indicated that the proportions of their respective contributions could be adjusted based upon changes in their incomes. In 2018, the previous 50/50 custodial arrangement changed, as reflected in a stipulated order in which the parties agreed to a significant reduction in the father’s parenting time to only two days per week and one weekend per month for 10 months of the year. Further, the mother testified at the hearing that the father had not consistently contributed to the joint account, and she submitted an email from the father in which he stated that he would no longer make monthly contributions to the account because he did not deem them necessary. According to the mother, she now had to pay for many of the children’s expenses on her own and was unable to afford such things as braces and summer camp for the children, while the father continued to enjoy a lavish lifestyle. The Appellate Division found that the mother demonstrated a substantial change in circumstances to justify a modification of child support.
Supreme Court calculated that the father’s total annual income was $170,014. It dismissed as not credible the father’s assertion that his income averaged only $9,162 per year, noting that the father had, by his own admission, received significant benefits from his farm business that he did not report as income. The court properly imputed income to the father in several categories. The court noted that personal expenses of the father had been paid by the business. The court added these expenses together and then conservatively attributed only two thirds of the total, or $34,309, as income to the father. The court also included in the father’s income $73,705, constituting the father’s draw from the business, and $12,000 as the value of rent that could have been received from his aunt’s apartment. The Appellate Division held that to the extent that the father testified that some of the expenses were attributable to the business, the court was under no obligation to credit this aspect of his testimony, particularly given that the father had inconsistently reported his income on tax returns and various credit applications.
The Appellate Division held that Supreme Court’s determination to impute an additional $50,000 in income to the father based upon his earning potential as a result of having obtained a Juris Doctorate degree and a Master’s degree in public health was an abuse of discretion. There must be “sound and substantial support in the record for such imputation. According to the father’s testimony, he had never practiced law, and the last time he held a job that was directly related to his Master’s degree was in 2004. The record was devoid of any evidence providing a basis for Supreme Court’s finding that the father could earn $50,000 by entering the job market with these advanced degrees. Moreover, the father was not obligated to utilize his degrees when, as here, he was pursuing a plausible means of support by running his farm business, and there was no proof that the father could have used his degrees to earn $50,000 in additional income while simultaneously operating the farm, as the court’s order contemplated. The record lacked a sufficient basis beyond mere speculation for imputing this income.
Dismissal of juvenile delinquency proceeding in the furtherance of justice is an extraordinary remedy that must be employed only in those rare cases where there is a compelling factor which clearly demonstrates that prosecution would be an injustice.
In Matter of James JJ., 168 N.Y.S.3d 584, 2022 N.Y. Slip Op. 03555 (3d Dept.,2022) a juvenile delinquency proceeding the Appellate Division reversed an order which dismissed the proceeding in the furtherance of justice. It held that dismissal in the furtherance of justice is an extraordinary remedy that must be employed sparingly, that is, only in those rare cases where there is a compelling factor which clearly demonstrates that prosecution would be an injustice. In determining such a motion, the statutory factors which must be considered, individually and collectively, are as follows: “(a) the seriousness and circumstances of the crime; (b) the extent of harm caused by the crime; (c) any exceptionally serious misconduct of law enforcement personnel in the investigation and arrest of the respondent or in the presentment of the petition; (d) the history, character and condition of the respondent; (e) the needs and best interest of the respondent; (f) the need for protection of the community; and (g) any other relevant fact indicating that a finding would serve no useful purpose” (Family Court Act § 315.2[1]). At least one of these factors must be readily identifiable and sufficiently compelling to support the dismissal. According to the sworn statement of the victim – the mother of respondent’s child on the date in question, respondent threw a full, eight-ounce baby bottle at the victim, which hit her in the face, when she asked him to feed the child, who was crying. The victim stated that, although she was bleeding heavily, respondent and his father discouraged her from seeking medical attention. When she eventually did go to the hospital the next day, a cut on her face was glued shut by a doctor and she was told to return for X rays after the swelling had abated. The victim indicated that she felt unsafe living with the child in the home of respondent and his father. In reaching its determination, Family Court placed emphasis on the fact that respondent was only charged with an act that would constitute a misdemeanor if committed by an adult. However, this was nevertheless a violent act, and the victim’s allegations reflected “a trend in which respondent’s propensity towards violence had escalated. The fact that the victim moved out of respondent’s home with the child on the date of the incident not only underscored the seriousness of respondent’s alleged conduct, but also belied Family Court’s finding that the victim was not in need of protection. Family Court’s dismissal of the petition in furtherance of justice was an improvident exercise of its discretion. The record did not support the court’s determination “that a finding of delinquency or continued proceedings would constitute or result in injustice” (Family Ct Act § 315.2[1]).
In a neglect proceeding, the imminent threat of danger to the children must be near or impending, not merely possible. It is focused on the existence of serious harm or potential harm to the children, not just on what might be deemed undesirable parental behavior
In Matter of Hakeem, --- N.Y.S.3d ----, 2022 WL 2346960, 2022 N.Y. Slip Op. 04214 (3d Dept.,2022) the Appellate Division reversed a finding, that respondent neglected the children by excessively consuming alcohol in such a way that caused her to lose consciousness while the children were in her care. It pointed out that in a neglect proceeding, while actual injury or impairment is not necessary, the imminent threat of danger to the children must be near or impending, not merely possible. Said differently, the inquiry is focused on the existence of serious harm or potential harm to the children, not just on what might be deemed undesirable parental behavior. Respondent testified that she and the children were living in a private room in a homeless shelter in Schenectady at the time of the incident. After the children had gone to sleep, respondent went into the bathroom and began drinking a bottle of brandy while talking on the phone with a family member. According to respondent, the bathroom was accessible through a small vestibule next to her private room, and she had left the door partially open so she could see the children while they slept. At some point, respondent fell asleep while seated on the toilet in the bathroom. She was later awoken by shelter staff in the early morning hours, and staff contacted an ambulance to respond. The report from the ambulance service indicated that the responding ambulance crew encountered respondent in the bathroom and concluded that she was intoxicated. Respondent was transported to Ellis Hospital in Schenectady . The Appellate Division found that the record contained sufficient evidence establishing that respondent failed to exercise a minimum degree of care when she became intoxicated while the children were under her care and, in effect, left them unsupervised for a brief period. However, petitioner failed to establish that respondent’s ill-advised conduct placed the children at risk of anything beyond, “at most, possible harm”. Respondent testified that her youngest children were in age-appropriate sleeping arrangements that presented no inherent danger resulting from respondent’s inebriated state. Although there was a period when the children were no longer supervised by respondent when she was taken to the hospital, the testimony revealed that shelter staff were watching the children until petitioner’s supervisor arrived and took custody of them, and there was no indication that they were in any danger during this period of time . Finally, the record was devoid of any proof that the children were upset or suffered any emotional harm at any point during the incident. The record failed to provide any indication that the children were awake during the entirety of the period that respondent was drinking alcohol and the ensuing period when respondent was asleep in the bathroom across from their private room .While respondent’s conduct was far from ideal and it is possible to speculate about the various ways that events could have turned out differently for the children, petitioner failed to meet its burden to sufficiently put forth evidence establishing that the children were in imminent danger.
Party arguing that he was deprived on meaningful appellate review as a result of incomplete hearing transcript must identify the substance of this testimony, and demonstrate its importance or relevance to the issues raised on appeal.
In Matter of Webster v Larbour, --- N.Y.S.3d ----, 2022 WL 2498951, 2022 N.Y. Slip Op. 04333 (3d Dept.,2022) a family offense proceeding the Appellate Division rejected the husband’s argument that he was deprived of the right to meaningful appellate review as a result of an incomplete hearing transcript. Although it appeared from the transcript and accompanying log that, due to an audio equipment malfunction in Family Court, a portion of the cross-examination and all of the redirect examination of the husband were not recorded, the husband’s full direct examination, including the testimony he gave concerning his theory as to the wife’s motivation for commencing the proceeding, was contained in the record for review. As for the missing cross-examination and redirect examination, the husband did not identify the substance of this testimony, nor had he demonstrated its importance or relevance to the issues he now raised on appeal. As such, it found that the missing information was neither material to the determination nor of such significance as to preclude meaningful review.
A party challenging an acknowledgment of paternity more than 60 days after its execution must initially prove that it “was signed under fraud, duress, or due to a material mistake of fact.” Only after the petitioner meets this burden will the Family Court entertain further inquiry into whether that party should be equitably estopped.
In Matter of Daniel FF., v. Alicia GG., --- N.Y.S.3d ----, 2022 WL 2500279, 2022 N.Y. Slip Op. 04342(3d Dept.,2022) Respondent (mother) gave birth to a child in 2017 while she was in a relationship with petitioner, who signed an acknowledgment of paternity less than two weeks after the child’s birth. They separated around April 2019. . In March 2021, petitioner commenced a proceeding to vacate the acknowledgment of paternity. Following a fact-finding hearing Family Court determined that it was in the child’s best interests to equitably estop petitioner from denying paternity and dismissed the petition. The Appellate Division affirmed on different grounds. Family Ct Act § 516–a (b) generally provides that a party seeking to challenge an acknowledgment of paternity more than 60 days after its execution must initially prove that it “was signed under fraud, duress, or due to a material mistake of fact” (Family Ct Act § 516–a [b][iv]). Only after the petitioner meets this burden will the Family Court entertain further inquiry into whether that party should be equitably estopped from challenging paternity. Petitioner commenced this proceeding well beyond the 60–day statutory deadline and, therefore, Family Court erred in prematurely considering the equitable estoppel defense. This error was academic as it found that petitioner failed to satisfy his initial burden of proof in challenging the voluntary paternity acknowledgment. He made no reference in the petition to the specific statutory ground upon which he sought vacatur. To the extent that petitioner’s claim of infidelity on the mother’s part could be construed as an allegation of a material mistake of fact or fraud, he failed to plead sufficient facts to warrant rescission of the paternity acknowledgment on either basis.
Appellate Division, Fourth Department
Supreme Court has the power to direct equitable distribution of the irrevocable choice of a survivor pension benefit made during the marriage.
In Ulrich v Ulrich, --- N.Y.S.3d ----, 2022 WL 2382909, 2022 N.Y. Slip Op. 04242 (4th Dept.,2022) the parties were married in August 2004. By that time, defendant had been working as a state correction officer for 16 ½ years. In 2015, while the parties were still married, defendant retired, having accrued 27 ½ years of pension credit. At that time, defendant chose a “pop up” pension payment option that provided that either he or plaintiff would continue to receive a pension upon the other’s death but that, should plaintiff die first, defendant’s pension payment would at that time change to the single life allowance amount. Plaintiff commenced the divorce action in November 2019. The Appellate Division held that Supreme Court did not abuse its discretion with respect to the equitable distribution of defendant’s pension benefit. It held that the court has the power to direct equitable distribution of the irrevocable choice of a survivor pension benefit made during the marriage. It affirmed the judgment which confirmed the report of the Referee, who properly set forth the relevant statutory factors that she considered and the reasons for her decision with respect to the pension benefit, The record reflected that plaintiff made significant contributions to the parties’ marriage to the extent that she cared for their shared home and both of their children from prior marriages.
In custody proceeding by a non-parent the extraordinary circumstances analysis must consider the cumulative effect of all issues present in a given case and not view each factor in isolation
In Matter of Byler v Byler, --- N.Y.S.3d ----, 2022 WL 2382450, 2022 N.Y. Slip Op. 04253 (4th Dept., 2022) the Appellate Division affirmed an order which awarded respondent paternal aunt sole custody of the children upon finding that children’s aunt established extraordinary circumstances and that it was in the best interests of the children to remain in the care of the aunt. It rejected the mother’s assertion that the court improperly relied upon the approximately five-year separation between the mother and the children. The child may be so long in the custody of the nonparent’ that separation from the natural parent amounts to an extraordinary circumstance, especially when ‘the psychological trauma of removal is grave enough to threaten destruction of the child. Conversely, when “the separation between the natural parent and child is not in any way attributable to a lack of interest or concern for the parental role, that separation does not amount to an extraordinary circumstance and, deserves little significance. Here, while the mother characterized her filing of more than 85 petitions as legitimate attempts to regain custody of the children during the approximately five years that they were living with the aunt, the court found that the mother’s numerous petitions, constituted abusive and harassing litigation that unfairly burdened the aunt by requiring her to appear to avoid default, thereby justifying its imposition of judicial screening for any future petitions. The mother’s numerous petitions were appropriately viewed as abusive and vexatious litigation rather than serious attempts to regain custody or resume a parental role in the children’s lives. It noted that the extraordinary circumstances analysis must consider the cumulative effect of all issues present in a given case and not view each factor in isolation. It concluded that the aunt met her burden of establishing that extraordinary circumstances existed based upon the cumulative effect of, among other things, the mother’s voluntary relinquishment of physical custody of the children, the subsequent protracted separation between the mother and the children, the psychological bonding of the children to the aunt and potential harm to the children if removed from the aunt’s custody, the mother’s failure to adequately address her ongoing mental health issues and, importantly, the series of incidents in which the mother engaged in erratic, unstable, threatening, and psychologically abusive behavior and communication directed at the children that justifiably rendered the children fearful of the mother
The credible evidence that the mother’s prior in-person supervised visitation was already discontinued, coupled with the mother’s erratic and threatening behaviors, including repeatedly appearing uninvited at the aunt’s house while approaching or communicating with the children in a manner that caused them genuine fear, provided a sound and substantial basis supporting the court’s determination to limit the mother’s visitation to weekly supervised video or electronic communication only.
Where Plaintiff testified concerning her diagnosis of multiple sclerosis and its debilitating effects, and submitted voluminous medical records corroborating her testimony and defendant never disputed plaintiff’s diagnosis and medical condition, plaintiff was not required to call an expert medical witness at trial to establish her inability to work.
In Anastasi v Anastasi, --- N.Y.S.3d ----, 2022 WL 2582269, 2022 N.Y. Slip Op. 04452 (4th Dept, 2022) the Appellate Division held that where, as here, the trial court gave appropriate consideration to the factors enumerated in Domestic Relations Law § 236 (B) (former [6] [a]), the Court will not disturb the determination of maintenance absent an abuse of discretion. It found that the record supported the court’s determination that plaintiff was “ ‘unable to work to support herself financially,’ now or at any point in the future. Plaintiff testified concerning her diagnosis of multiple sclerosis and its debilitating effects, and submitted voluminous medical records corroborating her testimony. Under the circumstances, and considering that defendant never disputed plaintiff’s diagnosis and medical condition, plaintiff was not required to call an expert medical witness at trial to establish her inability to work. The court considered the relevant factors in Domestic Relations Law § 236 (B) (former [6] [a]) in determining the amount and duration of maintenance considering plaintiff’s reasonable needs and predivorce standard of living in the context of the other enumerated statutory factors’. It noted that plaintiff had not worked outside the home since 1998 and that the parties enjoyed a lifestyle commensurate with a substantial income during the marriage.
Res judicata does not require dismissal of complaint to set aside agreement where the issues in this action were not identical to those raised by plaintiff in her prior motion and, plaintiff could have pursued her current claims in the 2018 motion; plaintiff could not have pursued her claims in the prior motion since a plenary action is required to set aside a settlement agreement
In Nagi v Ahmed, --- N.Y.S.3d ----, 2022 WL 2582390, 2022 N.Y. Slip Op. 04461(4th Dept., 2022) the Plaintiff commenced an action seeking to vacate in part an amended judgment of divorce entered in 2018 and to set aside the parties’ property settlement agreement), which was incorporated but not merged into the amended judgment of divorce. The complaint alleged, among other things, that plaintiff signed the agreement due to “extraordinary duress and pressure” exerted on her by defendant, among other people, and that the terms of the agreement are so favorable to defendant as to render it unconscionable and thus unenforceable. Supreme Court granted defendants cross-motion for summary judgment on his affirmative defenses. It dismissed the complaint on the grounds of collateral estoppel and ratification concluding that plaintiff was collaterally estopped from challenging the agreement because she sought similar relief by way of a motion she filed in July 2018 seeking to modify certain provisions of the agreement and to enforce others. It held that Collateral estoppel applies when (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits.
The Appellate Division found that the motion that plaintiff filed in July 2018 did not seek to vacate the amended judgment of divorce or to set aside the agreement. The issues in this action were not identical to those raised by plaintiff in her motion, and defendant thus failed to meet his initial burden on his cross motion of establishing that collateral estoppel precludes plaintiff from challenging the agreement.
It rejected defendants argument that this action was barred by res judicata because plaintiff could have pursued her current claims in the 2018 motion. A party seeking to set aside a settlement agreement must do so in a plenary action. Such relief cannot be obtained on motion. Moreover, although plaintiff did commence a plenary action in August 2018 to set aside the agreement on grounds of fraud, duress, and overreaching, she abandoned that action, and a final judgment was never entered on it. The doctrine of res judicata requires, among other things, “a valid final judgment” on a prior action between the parties which was lacking here. There never had been a determination on the merits of plaintiff’s claims that she signed the agreement under duress and that the agreement is unconscionable.
The Appellate Division rejected defendant’s contention that the court properly granted the cross motion because plaintiff ratified the agreement by acquiescing in it and receiving the benefits under it for a considerable period of time. A divorce settlement tainted by duress is void ab initio, not merely voidable, and is, therefore, not subject to ratification by the mere passage of time. It noted that plaintiff received only meager benefits under the agreement, which awarded sole custody of the parties’ children to defendant and awarded no maintenance to plaintiff despite a long-term marriage. Although plaintiff was not obligated to pay child support under the agreement, she was unemployed at the time of the divorce action, and thus her child support obligation would have been minimal. In return for her share of two family businesses and the marital residence, which was valued at $149,000 with no encumbrances, plaintiff received a lump sum payment of $15,000. The only other asset received by plaintiff through equitable distribution was a seven-year-old used motor vehicle.
A court cannot issue a QDRO encompassing rights not provided in the underlying stipulation, or one that is more expansive than the stipulation
In Gay v Gay, --- N.Y.S.3d ----, 2022 WL 2586496, 2022 N.Y. Slip Op. 04480(4th Dept., 2022) a postjudgment matrimonial proceeding, plaintiff appealed from a qualified domestic relations order (QDRO) that directed the New York State and Local Police and Fire Retirement System to pay defendant her marital share of plaintiff’s pension pursuant to the Majauskas formula. The Appellate Division agreed with Plaintiff that Supreme Court erred by deviating from the terms of the parties’ oral stipulation, which was incorporated but not merged into the judgment of divorce, because the stipulation provided that the numerator of the Majauskas formula would be 253 months for plaintiff’s police service during the marriage, but the court nonetheless added 36 months attributable to plaintiff’s purchase of three additional years of credit for military service. A proper QDRO obtained pursuant to a stipulation of settlement can convey only those rights to which the parties stipulated as a basis for the judgment. An alternative result would undermine litigants’ freedom of contract by allowing QDROs to create new rights, or litigants to generate new claims, unexpressed in the settlement stipulation. Thus, a court cannot issue a QDRO encompassing rights not provided in the underlying stipulation, or one that is more expansive than the stipulation. It found that the stipulation unambiguously contemplated including no more than plaintiff’s police service credit during the marriage as the numerator of the Majauskas formula and did not contemplate the inclusion of any additional service credits. The stipulation clearly referred to the numerator as consisting exclusively of plaintiff’s 21 years and 1 month of police service during the marriage, which amounted to 253 months.
June 29, 2022
United States Supreme Court
[Italy][Petition granted][Ameliorative measures] [Vacated and remanded]
In Golan v. Saada, ___U.S.___, (Supreme Court, June 15, 2022) Petitioner Narkis Golan was a citizen of the United States. She met respondent Isacco Saada, an Italian citizen, while attending a wedding in Milan, Italy, in 2014. Golan soon moved to Milan, and the two wed in August 2015. Their son, B. A. S., was born the next summer in Milan, where the family lived for the first two years of B. A. S.’ life. The two fought on an almost daily basis and, during their arguments, Saada would sometimes push, slap, and grab Golan and pull her hair. Saada also yelled and swore at Golan and frequently insulted her and called her names, often in front of other people. Saada once told Golan’s family that he would kill her. Much of Saada’s abuse of Golan occurred in front of his son. In July 2018, Golan flew with B. A. S. to the United States to attend her brother’s wedding. Rather than return as scheduled in August, however, Golan moved into a domestic violence shelter with B. A. S. In September, Saada filed in Italy a criminal complaint for kidnapping and initiated a civil proceeding seeking sole custody of B. A. S.
Saada also filed a petition under the Convention and ICARA in the U. S. District Court for the Eastern District of New York, seeking an order for B. A. S.’ return to Italy. The District Court granted Saada’s petition after a 9-day bench trial. As a threshold matter, the court determined that Italy was B. A. S.’ habitual residence and that Golan had wrongfully retained B. A. S. in the United States in violation of Saada’s rights of custody. The court concluded, however, that returning B. A. S. to Italy would expose him to a grave risk of harm. The court observed that there was “no dispute” that Saada was “violent—physically, psychologically, emotionally, and verbally—to” Golan and that “B. A. S. was present for much of it.” The court described some of the incidents B. A. S. had witnessed as “chilling.” While B. A. S. was not “the target of violence,” undisputed expert testimony established that “domestic violence disrupts a child’s cognitive and social-emotional development, and affects the structure and organization of the child’s brain.” Records indicated that Italian social services, who had been involved with the couple while they lived in Italy, had also concluded that “ ‘the family situation entails a developmental danger’ for B. A. S.” The court found that Saada had demonstrated no “capacity to change his behavior,” explaining that Saada “minimized or tried to excuse his violent conduct” during his testimony and that Saada’s “own expert said . . . that [Saada] could not control his anger or take responsibility for his behavior.”
The court nonetheless ordered B. A. S.’ return to Italy based on Second Circuit precedent obligating it to “ ‘examine the full range of options that might make possible the safe return of a child to the home country’ ” before it could “ ‘deny repatriation on the ground that a grave risk of harm exists.’ ” The Second Circuit based this rule on its view that the Convention requires return “if at all possible.” Blondin I, 189 F. 3d, at 248. To comply with these precedents, the District Court had required the parties to propose “ ‘ameliorative measures’ ” that could enable B. A. S.’ safe return. Saada had proposed that he would provide Golan with $30,000 for expenses pending a decision in Italian courts as to financial support, stay away from Golan until the custody dispute was resolved, pursue dismissal of the criminal charges he had filed against Golan, begin cognitive behavioral therapy, and waive any right to legal fees or expenses under the Convention. The court concluded that these measures, combined with the fact that Saada and Golan would be living separately, would “reduce the occasions for violence,” thereby ameliorating the grave risk to B. A. S. sufficiently to require his return.
The Second Circuit vacated the return order, finding the District Court’s ameliorative measures insufficient. Because the record did not support concluding that no sufficient ameliorative measures existed, the Second Circuit remanded for the District Court to consider whether such measures, in fact, existed. After an examination over nine months, the District Court identified new ameliorative measures and again ordered B. A. S.’ return. The Second Circuit affirmed.
The Supreme Court, in a unanimous opinion by Justice Sotomayor held that a court is not categorically required to examine all possible ameliorative measures before denying a Hague Convention petition for return of a child to a foreign country once the court has found that return would expose the child to a grave risk of harm. The discretion to courts under the Convention and ICARA includes the discretion to determine whether to consider ameliorative measures that could ensure the child’s safe return. Justice Sotomayor found that the Second Circuit’s rule, by instructing district courts to order return “if at all possible,” improperly elevated return above the Convention’s other objectives. Blondin I, 189 F. 3d, at 248. The Convention does not pursue return exclusively or at all costs. Rather, the Convention “is designed to protect the interests of children and their parents,” Lozano, 572 U. S., at 19 (ALITO, J., concurring), and children’s interests may point against return in some circumstances. Courts must remain conscious of this purpose, as well as the Convention’s other objectives and requirements, which constrain courts’ discretion to consider ameliorative measures in at least three ways.
First, any consideration of ameliorative measures must prioritize the child’s physical and psychological safety. A court may decline to consider imposing ameliorative measures where it is clear that they would not work because the risk is so grave. Sexual abuse of a child is one example of an intolerable situation. Other physical or psychological abuse, serious neglect, and domestic violence in the home may also constitute an obvious grave risk to the child’s safety that could not readily be ameliorated. A court may also decline to consider imposing ameliorative measures where it reasonably expects that they will not be followed.
Second, consideration of ameliorative measures should abide by the Convention’s requirement that courts addressing return petitions do not usurp the role of the court that will adjudicate the underlying custody dispute. A court ordering ameliorative measures in making a return determination should limit those measures in time and scope to conditions that would permit safe return, without purporting to decide subsequent custody matters or weighing in on permanent arrangements.
Third, any consideration of ameliorative measures must accord with the Convention’s requirement that courts act expeditiously in proceedings for the return of children. Timely resolution of return petitions is important in part because return is a “provisional” remedy to enable final custody determinations to proceed. A requirement to “examine the full range of options that might make possible the safe return of a child,” is in tension with this focus on expeditious resolution. Consideration of ameliorative measures should not cause undue delay in resolution of return petitions.
Justice Sotomayor summarized the Courts holding as follows: “ …although nothing in the Convention prohibits a district court from considering ameliorative measures, and such consideration often may be appropriate, a district court reasonably may decline to consider ameliorative measures that have not been raised by the parties, are unworkable, draw the court into determinations properly resolved in custodial proceedings, or risk overly prolonging return proceedings. The court may also find the grave risk so unequivocal, or the potential harm so severe, that ameliorative measures would be inappropriate. Ultimately, a district court must exercise its discretion to consider ameliorative measures in a manner consistent with its general obligation to address the parties’ substantive arguments and its specific obligations under the Convention. A district court’s compliance with these requirements is subject to review under an ordinary abuse-of-discretion standard.”
In this case, the District Court made a finding of grave risk, but never had the opportunity to inquire whether to order or deny return under the correct legal standard. It was appropriate to allow the District Court to apply the proper legal standard in the first instance, see Monasky v. Taglieri, 589 U. S. ___, ___. The Court held that the District Court should determine whether the measures considered are adequate to order return in light of the District Court’s factual findings concerning the risk to B. A. S., bearing in mind that the Convention sets as a primary goal the safety of the child. The order of the Second Circuit was vacated and the case remanded.
Court of Appeals
Authenticated Screen Shots Properly Admitted into Evidence. Proper foundation may be established through testimony that the screen shot accurately represents the subject matter depicted.
In People v Rodriguez, 2022 NY Slip Op 03307 (2022) the charges against defendant included sending numerous text messages containing sexual content to the 15-year-old victim, a player on his volleyball team. Text messages that defendant sent to the victim came to light when the victim's 16-year-old boyfriend observed them on her phone, took screenshots of messages that were sexual in nature, and forwarded the screenshots to the victim's mother and himself. The Court of Appeals held that the trial court acted within its discretion in determining that the People properly authenticated the screenshots. It observed that technologically generated documentation is ordinarily admissible under standard evidentiary rubrics and this type of ruling may be disturbed by this Court only when no legal foundation has been proffered or when an abuse of discretion as a matter of law is demonstrated. The Court noted that it had recently held that for digital photographs, like traditional photographs, "the proper foundation [may] be established through testimony that the photograph accurately represents the subject matter depicted" (People v Price, 29 N.Y.3d 472, 477 [2017] It reiterated that "[r]arely is it required that the identity and accuracy of a photograph be proved by the photographer" which would be the boyfriend here. Rather, "any person having the requisite knowledge of the facts may verify" the photograph "or an expert may testify that the photograph has not been altered." Here, the testimony of the victim, a participant in and witness to the conversations with defendant, sufficed to authenticate the screenshots. She testified that all of the screenshots offered by the People fairly and accurately represented text messages sent to and from defendant's phone. The boyfriend also identified the screenshots as the same ones he took from the victim's phone on November 7. Telephone records of the call detail information for defendant's subscriber number corroborated that defendant sent the victim numerous text messages during the relevant time period. Under these circumstances, there was no abuse of discretion as a matter of law in the court's determination that the screenshots of the texts messages were sufficiently authenticated or in admission of the screenshots into evidence.
Appellate Division, First Departent
No increase in pendente lite child support award was warranted Where Defendant failed to establish that the pendente lite child support award was insufficient
In Anonymous v Anonymous,--- N.Y.S.3d ----, 2022 WL 2308862 (Mem), 2022 N.Y. Slip Op. 04114 (1st Dept.,2022) the Appellate Division affirmed an order that awarded pendente lite child support. It held that no increase was warranted as Defendant failed to establish that the pendente lite child support award was insufficient. She argued that the award was inadequate in light of plaintiff’s wealth, but not that it was insufficient to meet the child’s actual needs or to support a lifestyle appropriate for the child (see DeNiro v. DeNiro, 185 AD3d 465 [1st Dept 2020]; Sykes v. Sykes, 43 Misc.3d 1220[A], 2014 N.Y. Slip Op 50731[U], *22 [Sup Ct, N.Y. County 2014] ).
A single instance of domestic violence may be a proper basis for a finding of neglect.
In Matter of Esther N., --- N.Y.S.3d ----, 2022 WL 2308871, 2022 N.Y. Slip Op. 04126 (1st Dept.,2022) the Appellate Division affirmed a finding that respondent father neglected the four subject children. The findings of neglect were supported by a preponderance of the evidence that the father committed acts of domestic violence in the presence of two of the children and while the other two children were in the apartment (see Family Ct Act §§ 1012[f][i][B]; 1046[b][i]) The credited testimony of the mother and the caseworker at the fact-finding hearing demonstrated that the father punched the mother with a closed fist while he was arguing with her about the family’s expenses in the living room where two of the children were present, and then continued fighting with her behind a closed bedroom door, leading the children to ask him to stop and to summon the police. The two children’s out-of-court statements that after they saw the father punch the mother with a closed fist, the eldest daughter summoned the police to stop the altercation as testified to by the caseworker was supported by the mother’s testimony about the incident. A single instance of domestic violence may be a proper basis for a finding of neglect. The record, including the mother’s testimony that those children told her that they summoned the police because they were scared of what he was going to do to her, supported the finding that the two older children were in danger of or were emotionally impaired by the domestic violence that he inflicted upon the mother while they were present. The two younger children, who were in their own bedroom when the incident occurred, were in imminent danger of physical impairment due to their proximity to the violence directed at the mother even in the absence of evidence that they were aware of the incident or emotionally affected by it
Support Magistrate’s determination that respondent’s failure to pay child support as ordered was not willful affirmed where it rested largely on his credibility findings, to which great deference is owed
In Matter of Laura R., v. Christopher B., --- N.Y.S.3d ----, 2022 WL 2164235, 2022 N.Y. Slip Op. 03978 (1st Dept.,2022) the Appellate Division affirmed an order that, inter alia, determined that respondent father’s failure to pay child support was not willful. It held that the Support Magistrate’s determination that respondent’s failure to pay child support as ordered was not willful rested largely on his credibility findings, to which great deference is owed. The Support Magistrate found that respondent testified credibly that he could not have sought regular employment because of his parenting responsibilities. The parties’ three children lived with him full time during most or all of the relevant period. Before the COVID–19 pandemic started, he shuttled them between home in New Jersey and school in New York City, and after the pandemic started he supervised the children, who all had Individual Education Programs, in their remote learning at home. He spent the summer of 2020 with them, taking them to baseball practice and games. Petitioner had shown no reason to disturb the Magistrate’s findings that this testimony was credible. Petitioner’s reliance on cases in which a party could have sought employment but did not do so was therefore misplaced.
Finding of Neglect due to the mother’s long-standing history of mental illness and resistance to treatment, notwithstanding the absence of a definitive diagnosis
In Matter of Siri V. --- N.Y.S.3d ----, 2022 WL 2163064 (Mem), 2022 N.Y. Slip Op. 03982 (1st Dept.,2022) the Appellate Division found that a preponderance of the evidence supported Family Court’s finding that the children’s physical, mental, or emotional condition was in imminent danger of becoming impaired as a result of the mother’s long-standing history of mental illness and resistance to treatment, notwithstanding the absence of a definitive diagnosis The finding of neglect was supported by the hospital records concerning the mother’s disturbing behavior with her newborn daughter, which indicated that the mother continued to suffer from the mental health issues that had resulted in a previous finding of neglect in 2016 Indeed, after the neglect finding in 2016, the mother’s two oldest children were removed from her care after she failed to seek mental health treatment and take her prescribed medication as ordered by Family Court, and the 2016 finding was not too remote in time from this proceeding to support a reasonable conclusion that the condition still existed.
Appellate Division, Second Department
The hearing court must state in its decision the facts it deems essential’ to its determination (CPLR 4213[b]). Custody order reversed where Family Court did not identify the facts adduced at the hearing that supported its denial of the mother’s custody modification petition and Appellate Division made its own findings.
In Smith v Francis, --- N.Y.S.3d ----, 2022 WL 2232129, 2022 N.Y. Slip Op. 04026 (2d Dept.,2022) the Appellate Division reversed an order of the Family Court made after a hearing which denied the mothers petition to modify a 2018 custody order to award her residential custody of the child. After the court conducted a hearing it concluded that the mother had failed to prove that there had been a change in circumstances warranting a modification of the existing custody arrangement. The Appellate Division found it lacked a sound and substantial basis in the record. It pointed out that to facilitate effective appellate review, the hearing court “must state in its decision ‘the facts it deems essential’ to its determination” (CPLR 4213[b]). Here, the Family Court did not identify the facts adduced at the hearing that supported its denial of the mother’s petition. The evidence at the hearing showed that, on numerous occasions after the issuance of the 2018 custody order, the father, in the child’s presence, denigrated the mother and behaved inappropriately toward her. He consistently failed to make the child available for telephone and video calls with the mother as required by the original custody order, routinely ignored the mother’s attempted communications with the child, and repeatedly failed to adhere to the court-ordered parental access schedule. The father not only refused to foster a good relationship between the mother and the child, he expressly testified that he did not believe he had an obligation to do so, but actively sought to thwart such a relationship. Parental alienation of a child from the other parent is an act so inconsistent with the best interests of the child as to, per se, raise a strong probability that the offending party is unfit to act as custodial parent. In addition, during the period following the issuance of the custody order, the father demonstrated a lack of interest in the child’s education and development by, among other things, refusing to have the child evaluated for learning disabilities or treated for his speech impediment. Moreover, the father failed to respond to the mother’s inquiries about the child’s health, education, and safety.
Pendente lite awards affirmed where defendant failed to establish the existence of any exigent circumstances warranting a modification of these awards, and any perceived inequity could best be remedied by a speedy trial
In Safir v Safir, --- N.Y.S.3d ----, 2022 WL 2136811, 2022 N.Y. Slip Op. 03917(2d Dept.,2022) the parties were married in August 2003 and had four children together. In or about July 2020, the plaintiff commenced this action for a divorce. The plaintiff moved for an award of pendente lite relief, including, among other things, sole physical custody of the parties’ children. The defendant cross-moved for pendente lite relief, including, among other things, sole physical custody of the children and to direct the plaintiff to pay an equal share of all household expenses. Supreme Court denied those branches of the motions which sought temporary custody of the children. However, for the purpose of pendente lite child support, the court determined that the plaintiff was the “de facto” custodial parent of the children because, inter alia, the children were residing with the plaintiff in the marital residence at the time, while the defendant was residing elsewhere. Thus, the court concluded that the defendant was obligated to pay pendente lite child support to the plaintiff, and awarded the plaintiff $6,000 per month for pendente lite child support. Based upon the parties’ lifestyle during the marriage, the cost of maintaining the marital residence, the plaintiff’s absence from the work force, and the defendant’s payment of all marital expenses during the marriage, the court directed the defendant to maintain the status quo by continuing to pay, pendente lite, 100% of the carrying charges for the marital residence, including the costs of the real estate taxes, homeowner’s insurance, homeowner’s association dues, and repairs associated with that property; 100% of the carrying charges, maintenance costs, and other expenses attributable to the Florida property; and 74% of the cost of employing two housekeepers. In doing so, the court, in effect, imputed income to the defendant, finding that he had voluntarily reduced his income by moving to a part-time employment schedule shortly before the commencement of the action, and utilized the plaintiff’s base salary as her annual gross income. The court also directed the parties to pay, pendente lite, their pro rata share of the costs of the summer camp, education, tutoring, and extracurricular activities for the children, and directed the parties to pay their pro rata share of the cost of tennis lessons for the children, if the parties agreed to continue such lessons. If the parties could not agree on whether to continue tennis lessons for the children, or the form thereof, the court directed that “either party may choose to pay 100% of the cost of the type of tennis lesson they prefer.” The court further determined that the defendant was “undoubtedly the monied spouse,” given that his “reduced, part-time income is more than twice the Plaintiff’s current salary,” and that he had “access to substantial amounts of separate assets.” As a result, the court directed the defendant to pay interim counsel fees for the plaintiff of $30,000.
The Appellate Division affirmed. It pointed out that modifications of pendente lite awards should rarely be made by an appellate court and then only under exigent circumstances, such as where a party is unable to meet his or her financial obligations, or justice otherwise requires. It held that the Supreme Court did not improvidently exercise its discretion in directing the pendente lite awards. The court providently, in effect, imputed income to him and determined the plaintiff’s income, at that point in time, based solely upon her base salary. The defendant failed to establish the existence of any exigent circumstances warranting a modification of these awards, and any perceived inequity could best be remedied by a speedy trial, at which the parties’ financial circumstances could be fully explored For the same reason, the court properly denied the defendant’s cross motion.
Error to deny without a hearing, the mother’s motion to modify custody where, among other things, she alleged that although the plaintiff had been awarded residential custody, the parties and the children had continued to live together as a family in the marital home for nearly four years and that she had been the children’s primary caregiver
In O’Mahoney v. O’Mahoney, --- N.Y.S.3d ----, 2022 WL 2136807, 2022 N.Y. Slip Op. 03901(2d Dept.,2022) the plaintiff and the defendant were married in 2004. The parties’ children were born in 2011. The parties were divorced by a judgment dated May 4, 2016. Pursuant to the judgment of divorce, the parties were awarded joint legal custody of the children, the plaintiff was awarded residential custody, with parental access to the defendant, and the defendant was to pay child support. . In September 2020, the defendant moved, inter alia, to modify the custody provisions of the judgment of divorce. Supreme Court denied the defendant’s motion. The Appellate Division held that the Supreme Court erred in denying, without a hearing, the defendant’s motion to modify the custody provisions in the judgment of divorce. The defendant alleged that although the plaintiff had been awarded residential custody, the parties and the children had continued to live together as a family in the marital home for nearly four years after the divorce and that the defendant had been the children’s primary caregiver. The defendant also provided evidence that the plaintiff had interfered with her right to joint legal custody of the children and her “reasonable rights of visitation” as provided for in the judgment of divorce. Finally, the plaintiff and the defendant raised specific, contested allegations as to the other’s fitness to serve as the custodial parent. Accordingly, the defendant made an evidentiary showing of changed circumstances requiring a change of custody to ensure the best interests of the children, and a hearing was necessary to determine whether the custody provisions in the judgment of divorce should be modified. It remitted the matter to the Supreme Court for the appointment of an attorney for the children, a hearing and a new determination.
Motion to vacate default granted where the Family Court, granted the father’s oral application and modified the order of custody and visitation to grant relief which far exceeded that requested in his petition, without first receiving any testimony or other admissible evidence upon which it could determine whether modification was required
In Matter of Hogan v Smith, --- N.Y.S.3d ----, 2022 WL 2136773 (Mem), 2022 N.Y. Slip Op. 03894 (2d Dept., 2022) the Appellate Division reversed an order which denied the mother’s motion to vacate the final order of custody and visitation which was granted upon her default. It found that upon the conclusion of the proceedings on May 6, 2021, the Family Court, inter alia, granted the father’s oral application and modified the order of custody and visitation dated October 6, 2020, so as to grant the father relief which far exceeded that requested in his petition, without first receiving any testimony or other admissible evidence in the matter upon which it could determine whether modification was required to protect the best interests of the children. Under these circumstances, and in light of the policy favoring resolutions on the merits in child custody proceedings, the court improvidently exercised its discretion in denying the mother’s motion to vacate the final order of custody and visitation. It reversed the order, granted the mother’s motion and remitted the matter to the Family Court for further proceedings on the father’s petition.
Support Magistrate’s failure to explain in the order of disposition the reasoning for her determination to deny the mother’s request for a purge payment or weekend incarceration did not constitute a violation of Family Court Act § 454(4).
In Matter of Santman v. Schoenfeldt,--- N.Y.S.3d ----, 2022 WL 2136768 (Mem), 2022 N.Y. Slip Op. 03897 (2d Dept.,2022) the Support Magistrate found that the father’s failure to pay child support was willful, directed the father to pay the mother child support arrears of $20,204 at a rate of $250 per month, and denied the mother’s request to commit the father for a period of incarceration unless he paid a purge amount. The Appellate Division held, inter alia, that contrary to the mother’s contention, the Support Magistrate’s failure to explain in the order of disposition the reasoning for her determination to deny the mother’s request for a purge payment or weekend incarceration did not constitute a violation of Family Court Act § 454(4). The Support Magistrate complied with the statute by setting forth the facts upon which the determination was based. Any purported failure to specifically address the mother’s requests does not amount to a statutory violation requiring remand for further proceedings.
Imputation of income to the father based upon the free housing and use of vehicles he received was not supported by the record, where the Support Magistrate conducted her own research to estimate the value of the father’s housing and adopted the mother’s unsubstantiated estimate of the value of the father’s vehicle use.
In Matter of Sorscher v. Auerbach --- N.Y.S.3d ----, 2022 WL 2136784, 2022 N.Y. Slip Op. 03898 --- N.Y.S.3d ----, 2022 WL 2136784, 2022 N.Y. Slip Op. 03898 (2d Dept.,2022) the Appellate Division pointed out that while a Support Magistrate is afforded considerable discretion in determining whether to impute income to a parent, a determination to impute income will be rejected where the amount imputed was not supported by the record, or the imputation was an improvident exercise of discretion. Here, as the Family Court determined, the Support Magistrate’s imputation of income to the father based upon the free housing and use of vehicles he received was not supported by the record, as the Support Magistrate set forth in her findings of fact that she conducted her own research to estimate the value of the father’s housing and adopted the mother’s unsubstantiated estimate of the value of the father’s vehicle use. Although it agreed with the Support Magistrate’s initial determination to impute an income to the father based upon his housing and vehicle use, the Family Court should have remitted the matter to the Support Magistrate to determine the appropriate value, if any, to be imputed to the father for his free housing and vehicle use. It remitted the matter to the Family Court for a hearing to be conducted concerning the limited issue of whether a value can be ascertained for the father’s free housing and vehicle use, and a new determination, if necessary, of the father’s income.
June 15, 2022
Appellate Division, Second Department
Relocation to Georgia permitted mother who was the primary caregiver where the father was not involved in the child’s day-to-day life, education, or healthcare, and kept in contact with the child more through phone and FaceTime calls, rather than in-person visits.
In Matter of Thomas v Mobley, --- N.Y.S.3d ----, 2022 WL 2057827, 2022 N.Y. Slip Op. 03731 (2d Dept.,2022) the parties had one child together, who was born in July 2008. In an order dated April 30, 2015 which was entered upon the agreement of the parties, the parties were awarded joint legal custody of the child, the mother was awarded residential custody, and the father was awarded parenting time. The custody order specified that neither party was permitted to relocate with the child outside of Nassau or Suffolk Counties without consent of the other party or of the court. By petition dated March 12, 2019, the mother sought to modify the custody order to permit her to relocate with the child to Georgia. Family Court granted the mother’s petition and directed that the father have parenting time with the child in Georgia on 10 days’ notice to the mother. The Appellate Division found that the mother demonstrated a change in circumstances, providing a sufficient basis to conduct a hearing. She presented evidence that, since the custody order was issued, the safety in her neighborhood had declined, requiring her to move to protect the child’s safety, which led to a drastic increase in her living expenses. She also presented evidence that she had a job opportunity in Georgia with a higher salary than what she could earn in New York and that her living expenses would be lower in Georgia than they were in New York. The mother established by a preponderance of the evidence that relocating to Georgia was in the child’s best interests . The mother had sound reasons for wanting to relocate, including providing the child with a better environment and increased financial stability. The Family Court’s determination to credit the mother’s testimony as to how the move would improve her finances was entitled to deference. As to the father’s relationship with the child, who was 11 years old at the time of the hearing, the evidence demonstrated that the mother was the primary caregiver; that the father was not involved in the child’s day-to-day life, education, or healthcare; and that the father kept in contact with the child more through phone and FaceTime calls, rather than through in-person visits, which he could continue if the child moved to Georgia. The evidence demonstrated that the child liked the area where the mother sought to move, he had extended family in Georgia, several of the mother’s family members who saw the child regularly in New York were also moving to Georgia, and the child could visit the father during school breaks. It remitted the matter to the Family Court, to set forth a more detailed schedule for parental access, which must specify how the parties are to pay for the travel associated with the schedule.
Appellate Division, Third Department
In determining whether a parent’s belief regarding the need to use physical force to maintain discipline was reasonable, the trier of fact must consider whether a reasonable person in the same position as the parent would have believed that such force was necessary
In Matter of Nicole J v Joshua J,--- N.Y.S.3d ----, 2022 WL 2068682, 2022 N.Y. Slip Op. 03780 (3d Dept.,2022) a custody modification and family offense proceeding, the evidence established that, in addition to perpetrating acts of domestic violence against the mother, the father, who had supervised visitation, frequently became frustrated with the child and would yell and curse at her. During the incident that prompted the mother to file the family offense petition, the father had difficulty managing the then two-year-old child’s desire to play with toys in an adjoining room. The father “yelled” and, according to the initial supervisor, “grabbed the child by the arm and threw her on a chair pretty aggressively, causing her to cry for an extended period of time. The father then cursed at the child, called her names and likened her to her mother in a disparaging way. There was evidence that the father had been similarly impatient and physically aggressive with the mother’s other children. The interim report resulting from a Family Ct Act § 1034 investigation, which was admitted into evidence, stated that there were child protective concerns related to the father’s temper. In independently reviewing the record to determine whether a fair preponderance of the evidence supported a finding that the father committed one of the qualifying family offenses the Appellate Division found that the proof established that the father committed the family offense of harassment in the second degree and that he was not entitled to a justification defense. As relevant here, a person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person he or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same (Penal Law § 240.26[1]; see Family Ct Act § 812[1]). However, a child’s caretaker may use reasonable physical force for the purpose of discipline (Penal Law § 35.10[1]). In determining whether a parent’s belief regarding the need to use physical force to maintain discipline was reasonable, the trier of fact must consider whether a reasonable person in the same position as the parent would have believed that such force was necessary. The evidence demonstrated that the father used an aggressive amount of physical force to grab the two-year-old child by her arm and throw her in a chair, after which he yelled profane and disparaging insults at the child. The father’s conduct and language toward the child, which did not constitute reasonable disciplinary measures, evinced an intent to alarm the child. It found that the proof adduced at the hearing sufficiently established, by a preponderance of the evidence, that the father committed the family offense of harassment in the second degree (Penal Law § 240.26[1]; Family Ct Act § 812[1]).
Appellate Division, Fourth Department
A father who has promptly taken every available avenue to demonstrate that he is willing and able to enter into the fullest possible relationship with his under-six-month-old child should have an equally fully protected interest in preventing termination of the relationship, even if he has not as yet actually been able to form that relationship.
In Matter of Adoption of William, --- N.Y.S.3d ----, 2022 WL 2092955, 2022 N.Y. Slip Op. 03831 (4th Dept.,2022) the Appellate Division affirmed an order that determined that the consent of respondent-petitioner Douglas W.M. (father) was required for the adoption of William, his biological son and awarded custody of the child to the father. It found a sound and substantial basis to support the determination that the father demonstrated “his willingness to take parental responsibility” (Matter of Raquel Marie X., 76 N.Y.2d 387[1990]. It held that a father who has promptly taken every available avenue to demonstrate that he is willing and able to enter into the fullest possible relationship with his under-six-month-old child should have an equally fully protected interest in preventing termination of the relationship by strangers, even if he has not as yet actually been able to form that relationship. It found that the father did everything possible to manifest and establish his parental responsibility’ under the circumstances. He publicly acknowledged his paternity from the outset of the pregnancy, and, although he did not pay any expenses in connection with the pregnancy or the birth, he testified that all of those expenses were paid by the military. Prior to the child’s birth, the father pursued paternity testing and requested and received from the mother a commitment that he could have custody of the child, and actively began purchasing “items” in anticipation of obtaining custody of the child upon birth. Based on the mother’s commitment, the father enlisted the help of his military commanding officers to obtain custody of his child, and made plans for relatives or family friends to help care for the child until his enlistment in the military ended. It found that the father established his ability to assume custody of the child. Custody and housing are separate and distinct concepts. A parent who lacks housing for a child is not legally precluded from obtaining custody. Certainly, active military members should not lose custody of a child due to their service to our country. Many parents enlist the aid of family members to help them provide housing, including single parents who serve in the military. That temporary inability to provide housing should not preclude them from asserting their custodial rights to the children where, as here, they have established their intent to embrace their parental responsibility. The father reasonably and sincerely believed that the biological mother would not surrender the child for adoption, and she frustrated his efforts to become involved with the child. The evidence at the hearing established that the mother lied to the father, telling him that she would give him custody of the child; misled petitioners into believing that the father did not want the child, even though she knew that he was aggressively pursuing custody; and misled the courts by filing a false affidavit stating that no one was holding himself out as the father.
June 8, 2022
Appellate Division, First Department
Finding of neglect based solely on use of marijuana, without a finding of actual or imminent impairment of the child’s physical or emotional condition, is inconsistent with public policy legalizing marijuana
In Matter of Saaphire A.W., 204 A.D.3d 488, 166 N.Y.S.3d 627, 2022 N.Y. Slip Op. 02382 (1st Dept.,2022) the Appellate Division held that the evidence that the mother smoked marijuana while pregnant with her youngest daughter, and that the mother and child both tested positive for marijuana at the time of the birth, was insufficient, in and of itself, to sustain a finding that the child was physically, mentally or emotionally impaired, or was in imminent danger of being impaired. There was no evidence that the mother’s marijuana use impacted her judgment or behavior, or that the child was impaired or placed in imminent risk of impairment by the mother’s drug use. Furthermore, the finding of neglect based solely on use of marijuana, without a finding of actual or imminent impairment of the child’s physical or emotional condition, is inconsistent with this State’s public policy legalizing marijuana, as reflected in the amendment to the Family Court Act (Family Court Act § 1046[a][iii] [L 2021, ch 92, § 58, eff March 31, 2021]).
Appellate Division, Third Department
Family Ct Act § 1046(a)(iii) specifically forecloses a prima facie neglect finding based solely upon the use of marihuana
In Matter of Micah S.--- N.Y.S.3d ----, 2022 WL 1786627, 2022 N.Y. Slip Op. 03554 (3 Dept.,2022) the Appellate Division observed in a footnote that the Marihuana Regulation and Taxation Act (L 2021, ch 92) amended Family Ct Act § 1046(a)(iii), in pertinent part, by specifically foreclosing a prima facie neglect finding based solely upon the use of marihuana, while still allowing for consideration of the use of marihuana to establish neglect, provided “that there is a separate finding that the child’s physical[,] mental or emotional condition was impaired or is in imminent danger of becoming impaired.”
Appeal by Nonrespondent mother in Neglect Proceeding dismissed where the arguments advanced by the mother did not directly pertain to a custody determination made within this proceeding.
In Matter of Andreija N., 2022 WL 1786662 (3d Dept.,2022) Respondent and Tiffany O. (mother) were the parents of a child (born in 2012). In July 2018, the petitioner commenced this proceeding alleging that respondent had abused, severely abused and repeatedly abused the child by committing sex offenses against her. The petition also alleged that respondent neglected the child by threatening to harm the mother and others, purportedly causing the child to experience fear and emotional distress. Family Court determined that petitioner failed to meet its burden to demonstrate that respondent abused or neglected the child and, dismissed the petition. Petitioner and the mother appealed. The Appellate Division dismissed the mothers appeal noting that the mother was not a proper party to this appeal. A nonrespondent parent in a child protective proceeding has a limited statutory role and narrow rights under Family Ct Act § 1035(d) related to issues of custody: to (1) pursue temporary custody of his or her child/children during fact-finding; and (2) seek permanent custody during the dispositional phase. It has been observed that the notice requirements of that statute are designed to ensure that the nonrespondent parent, often the noncustodial parent, is notified of the proceedings and allowed to intervene and be heard on temporary or permanent custody more often as alternative custodians for a child rather than foster care placements. Family Ct Act § 1035(d) was amended the year after its enactment to clarify the narrow role of nonrespondent parents, limiting their participation to arguments and hearings at fact-finding insofar as they affect the temporary custody of the child and to all phases of a dispositional hearing. Thus, the role of a nonrespondent parent in a Family Ct Act article 10 proceeding has been carefully circumscribed, and the scope of a nonrespondent parent’s participation on appeal in such a proceeding is therefore similarly narrow. There is no question that the mother has an interest in the child’s welfare. However, allowing her to participate with full party status would significantly expand the intended role of a nonrespondent parent in this type of proceeding. As the arguments advanced by the mother did not directly pertain to a custody determination made within this proceeding, her appeal was dismissed.
June 1, 2022
The court is not required to hold a hearing on this interim fee application
In Adler v Adler, --- N.Y.S.3d ----, 2022 WL 1739077, 2022 N.Y. Slip Op. 03468 (1st Dept.,2022) the Appellate Division affirmed an order which awarded the plaintiff wife, pendente lite, custody-related counsel fees totaling $600,000. It observed that as reflected in the legal bills at issue and counsel’s description of the work to be done imminently, a significant portion of legal fees were incurred and will be incurred in connection with specific custody-related matters not addressed in the parties’ prenuptial agreement, and that could not even have been contemplated by the parties when they executed the agreement, before the first of their four children was born. These included disputes over visitation and parenting time, efforts to resolve such disputes via stipulation, matters concerning the Attorney for the Children and appointed forensics, therapy issues and communications with the children’s pediatrician, parenting issues arising from the COVID pandemic, issues surrounding one child’s graduation, and disputes concerning the children’s activities such as tennis lessons and art classes. The prenuptial agreement did not address these matters, and thus the counsel fee waiver did not apply. The court was not required to hold a hearing on this interim fee application (see Matter of Balber v. Zealand, 169 AD3d 500 [1st Dept 2019]). The court carefully considered the bills and the issues, as shown by its reduction of the wife’s $900,000 interim counsel fee request to $600,000. The husband did not show the court failed to consider whether the billing was excessive or redundant, or that it miscalculated the extent to which the fees awarded were, in fact, custody-related. As the award is subject to reallocation at the end of the case, a hearing would be premature and an unnecessary expenditure of resources in an already heavily litigated case.
First Department holds that (1) its precedents support a smaller percentage distribution to the nontitled spouse of the value of a business created and managed by the titled spouse; (2) Because of the tax consequence it was appropriate to award plaintiff a smaller distribution of assets for which defendant will have to sell property awarded to her in equitable distribution in order to pay him; and (3) appreciation in value of defendant’s pre-marital business, during the marriage constituted marital property subject to distribution where appreciation was due to defendant’s active efforts and that there was “some nexus” between plaintiff’s limited indirect contributions as a supportive spouse and active parent, and the success of defendant’s business. The nontitled spouse is not required to quantify the connection between the titled spouse’s efforts and the increase in value of separate property during the marriage “with mathematical, causative or analytical precision.
In Culman v Boesky, --- N.Y.S.3d ----, 2022 WL 1670167, 2022 N.Y. Slip Op. 03440(1st Dept.,2022) the parties appealed from a judgment of divorce, valuing the subject art work by including the “buyer’s premium,” awarding plaintiff 7.5% of the appreciation in value of defendant’s business, Art Works Inc., during the marriage, 10% of the marital value of M&E, LLC, without awarding defendant a separate property credit, 10% of the marital value of the real property located in the Chelsea property, 20% of the marital value of the parties’ condominium in Aspen, Colorado, 20% of the appreciation in the cash surrender value of defendant’s AXA life insurance policy, 10% of the marital value of defendant’s personal art collection, and 50% of the remaining assets, including the value of the parties’ club memberships, vehicles, wine collection, bank accounts, and investment and retirement funds, directing defendant to pay plaintiff his equitable share of illiquid assets within four years of judgment at 3% interest, and awarding plaintiff $320,000 in counsel fees.
Plaintiff commenced this divorce action on January 19, 2016. The parties stipulated that they would identify and evaluate marital assets as of May 15, 2015. At the time of trial, plaintiff was 51 and defendant was 52. They met in 2001 and married on June 28, 2003. They had one child born in 2004. At the date of marriage, plaintiff was employed in the financial industry, and defendant was the owner of an art gallery, incorporated as Art Works, Inc. (AWI), which she had established in 1995. Throughout the marriage, the parties paid their living expenses primarily with defendant’s income, and did so exclusively after 2008, when plaintiff left his employment. Plaintiff then engaged in several business ventures, some of which were funded by defendant, but none of which were remunerative. After 2008, he did not contribute economically, either to defendant’s business or the parties’ living expenses, except for a deposit of $200,000 into the AWI account from an inheritance he received in 2011. However, plaintiff was primarily responsible for managing the payment of the family’s expenses. Both parties participated in parenting their daughter, with the assistance of a nanny five days per week. The nanny also accompanied the family on trips to Aspen and Nantucket. The trial court found that there was “some evidence” that plaintiff helped care for the child when defendant was traveling without the child, and on Saturdays from September to June when defendant was at work, which included taking the child to classes and skiing on Saturdays in the winter, starting in 2011. Plaintiff took the child to school and activities when the nanny did not. However, the trial court also found that plaintiff “engaged in conduct that was potentially detrimental” to the child when defendant was away on business. Plaintiff attended events with defendant related to her gallery, but he was not involved with the day-to-day work of defendant’s business. The trial court found that plaintiff’s contributions to the marriage, both economic and non-economic, began to diminish beginning in or about 2008, to the extent that, after 2012 or 2013, “he failed to make any significant contributions to the marriage.” Plaintiff executed the contract of sale for the Chelsea property on November 5, 2004, and the closing took place in January 2005. The Chelsea property was owned by an LLC formed for that purpose on October 28, 2004. Initially, defendant owned 100% of the LLC, but in 2011, she transferred 20% of it to a trust of which the parties’ daughter is the beneficiary. While defendant used some of her separate property funds to acquire the property, she also used some marital funds to pay the costs of the construction and renovation. In 2007, construction was completed on the residential portion of the building, which then became the marital residence. The majority of the Chelsea property was used by the gallery, and the residence occupied approximately 10% of the building. AWI had a lease with the LLC pursuant to which it paid rent to the LLC. The parties resided in the residential portion of the building rent-free.
Plaintiff objected globally to the trial court’s distribution of assets on the grounds that he was awarded only 10.2% of the marital estate, according to his calculations. Plaintiff complained that the overall distribution of assets to him constitutes a de minimis percentage of the parties’ total assets. However, equitable distribution does not require equal distributions. Its precedents support a smaller percentage distribution to the nontitled spouse of the value of a business created and managed by the titled spouse. In a situation like this, where the complex marital estate is composed of multiple assets of varying natures, many of which cannot be distributed in kind, the court must carefully consider the equitable distribution of each asset based on the applicable statutory equitable distribution factors, which frequently leads to an unequal distribution that is nevertheless equitable.
As defendant’s business was the parties’ largest asset, the application of the general principle that business assets are generally less evenly divided than other assets results in a greater overall distribution in defendant’s favor. Plaintiff failed to account for the tax consequences that defendant will bear in paying plaintiff his distributive award. In order for defendant to pay plaintiff its increased award to him of 15% of the marital portion of AWI, she would have to liquidate approximately 30% of the marital portion of AWI’s value,. Accordingly, taking into account the tax impact of the distribution to plaintiff, defendant would retain not 85% of the marital value of AWI, but closer to 70%. On the other hand, it affirmed the distribution to plaintiff of 50% of those marital assets that can be distributed in kind without any tax impact, including the value of the parties’ vehicles, wine collection, bank accounts, and investment and retirement funds. Because of the tax consequence it was appropriate to award plaintiff a smaller distribution of assets for which defendant will have to sell property awarded to her in equitable distribution in order to pay him.
The Appellate Division held that plaintiff met his burden to show that the appreciation in value of defendant’s pre-marital business, AWI, during the marriage constituted marital property subject to distribution. The record, including defendant’s own testimony, supported the trial court’s determination that the appreciation was due to defendant’s active efforts and that there was “some nexus” between plaintiff’s limited indirect contributions as a supportive spouse and active parent, at least in the early years of the marriage, and the success of defendant’s business. The nontitled spouse is not required to quantify the connection between the titled spouse’s efforts and the increase in value of separate property during the marriage “with mathematical, causative or analytical precision” (Citing Price v. Price, 69 N.Y.2d 8 (1986) and Hartog v. Hartog, 85 N.Y.2d 36 (1995)).
The Appellate Division found that an award to plaintiff of significantly less than half of the marital portion of AWI was justified by the following facts: defendant started her business years before she met plaintiff; plaintiff was not involved with defendant’s acquisition or sale of art; plaintiff’s conduct was at times problematic and even a hindrance to defendant’s business success; plaintiff’s contributions to the marriage diminished over time; and defendant would bear substantial tax consequences when she sells art to pay plaintiff a distributive award (see Domestic Relations Law § 236[B][5][d][7], [8], [11]). However, the trial court’s distribution of only 7.5% of the marital appreciation in AWI to plaintiff was an improvident exercise of discretion, given the court’s findings that plaintiff made indirect contributions to defendant’s business as a supportive spouse and parent, at least in the early years of the marriage, and deposited $200,000 into the AWI account from an inheritance he received in 2011. He also attended many events with her, and provided occasional assistance, particularly following Hurricane Sandy. It found that plaintiff’s share of AWI’s appreciation during the marriage should be 15%, or $3,486,821.
The Appellate Division held that with respect to M&E, an entity established during the marriage and partly owned by a trust benefitting the parties’ daughter, the award of 10% of the marital value to the plaintiff was an improvident exercise of discretion; instead, it found that his share should be 15%. Defendant’s role as sole arbiter of the acquisition and disposition of artwork held by M&E, plaintiff’s lack of any direct contribution to this asset, and his diminishing indirect contributions as a spouse and parent over time, as well as the tax consequences to defendant from selling assets to pay plaintiff’s distributive award justified a relatively small award to plaintiff of this asset (see Klauer v. Abeliovich, 149 A.D.3d 617 [1st Dept. 2017], supra). However, the trial court found that plaintiff made indirect contributions as a spouse and parent in the early years of the marriage.
The Appellate Division further found that defendant was entitled to a separate property credit for art that was gifted to her, valued at $991,400, as detailed in tax returns (see Domestic Relations Law § 236B[1][d][1]). The stipulated value of the art held by M&E, taking into account the buyer’s premium, was $10,529,638. After deducting defendant’s separate property credit and the 33 1/3% interest of the trust benefitting the parties’ child, the amount subject to equitable distribution was $6,359,143, of which plaintiff was entitled to 15%, or $953,871.45.
For similar reasons, the Appellate Division found that the award to plaintiff of 10% of the value of defendant’s personal art collection was an improvident exercise of discretion and that the distribution to him should be 15%, or $215,812.50, with the buyer’s premium.
The Appellate Division held that trial court’s award to plaintiff of only 10% of the marital value of the Chelsea property, which housed defendant’s art gallery and the parties’ former marital residence, was an improvident exercise of discretion. The award did not give sufficient weight to the facts that marital funds were used to construct, renovate, maintain, and operate the building and that plaintiff was involved during the construction process. On the other hand, after 2008, plaintiff ceased to earn an income and therefore did not contribute financially, and the parties did not pay rent or a mortgage to live in the marital residence since it was situated in a commercially zoned space. Considering all of these facts, it found that plaintiff was entitled to 30% of the marital value, or $3,708,233.28.
Similarly, plaintiff was entitled to 40% of the marital value of the parties’ condominium in Aspen, instead of the 20% awarded by the trial court. The parties purchased and renovated this property during the marriage. The record showed that, although plaintiff was not earning income to contribute financially, he paid the bills associated with the property and handled the occasional summer rental.
The Appellate Division held that trial court providently exercised its discretion in awarding plaintiff 50% of the value of the parties’ vehicles and the cost of their club membership fees. Defendant’s use of the cash proceeds from the sale of her separate property art to help fund these purchases did not render them her separate property, because those funds were commingled with marital funds in her account and used for the parties’ joint benefit.(see generally Mahoney-Buntzman v. Buntzman, 12 N.Y.3d 415, 421, 881 N.Y.S.2d 369, 909 N.E.2d 62 [2009]).
The Appellate Division held that the court providently exercised its discretion in giving defendant four years to pay plaintiff his distributive award of the non-liquid assets, at 3% postjudgment interest, and 60 days to pay him his share of liquid assets, given the illiquid nature of the assets to be sold, the related tax consequences, and the effect of the pandemic on the economy in general and the art market in particular, of which the trial court took judicial notice
The judgment of divorce was modified, on the law and the facts, to award plaintiff 15% of the marital appreciation of Art Works Inc., 15% of the marital value of M&E LLC after awarding defendant a separate property credit of $991,400, 30% of the marital value of the Chelsea property, 40% of the marital value of the condominium in Aspen, Colorado, 0% of the appreciation in the cash surrender value of defendant’s AXA life insurance policy, and 15% of the marital value of defendant’s personal art collection, and otherwise affirmed
Evidence of an offer to purchase is generally inadmissible at trial to show fair market value.
In Lauren S v Alexander S., --- N.Y.S.3d ----, 2022 WL 1668835, 2022 N.Y. Slip Op. 03443 (1st Dept.,2022) the Appellate Division found that the Supreme Court erred in imposing a minimum value on the parties Southampton marital property based on a purchase offer of $20 million rejected by defendant, as evidence of an offer to purchase is generally inadmissible at trial to show fair market value.
Relocation to Ireland permitted wife and young child where meaningful extended vacations could compensate for the loss of regular visitation
In Lavery v O’Sullivan, --- N.Y.S.3d ----, 2022 WL 1653929, 2022 N.Y. Slip Op. 03378 (2d Dept.,2022) plaintiff, who was a dual citizen of the United States and Ireland, and the defendant, who was a citizen of Ireland, married in 2015, and lived and worked in New York. They hade one child, who was born in 2016. Both parties had traveled frequently to Ireland to visit extended family. In October 2019, the plaintiff commenced this action seeking, inter alia, a judgment of divorce. Supreme Court, inter alia, awarded the plaintiff sole legal and physical custody of the child and permitted her to relocate with the child to Ireland. The Appellate Division affirmed. It found Supreme Court’s determination to be supported by a sound and substantial basis in the record. “ The Supreme Court found credible the plaintiff’s testimony that she was the child’s primary caregiver, that the defendant had engaged in alcohol abuse and subjected the plaintiff to instances of domestic violence and verbal abuse, and that if she were permitted to relocate with the child to Ireland, the child’s quality of life would be improved. In Ireland, the plaintiff and the child could live cost free in a guest house on the maternal grandparents’ property, the cost of living in the town was less than it is in New York, where the parties were struggling financially, and in Ireland the plaintiff had been offered a job as a clerical administrator in a nursing home. In addition, the plaintiff would have her parents, siblings, and cousins in the vicinity to offer her support, as well as the defendant’s extended family. The court properly concluded that, while relocation would disrupt the defendant’s regular contact with the child, meaningful extended vacations could compensate for the loss of regular visitation
Family Court did not improvidently exercise its discretion in denying the father’s motion to vacate the finding of neglect under Family Court Act § 1051(c), as the motion was made after the disposition and was, therefore, untimely.
In Matter of Yarelis E. --- N.Y.S.3d ----, 2022 WL 1653962 (Mem), 2022 N.Y. Slip Op. 03385 (2d Dept.,2022) a finding of neglect was entered against the father and after an order of disposition was issued, the father moved, inter alia, pursuant to Family Court Act §§ 1051(c) to vacate the finding of neglect and to dismiss the petition. Family Court denied the father’s motion. The Appellate Division affirmed. It held that Family Court did not improvidently exercise its discretion in denying the father’s motion to vacate the finding of neglect and to dismiss the petition under Family Court Act § 1051(c), as the motion was made after the disposition and was, therefore, untimely. In any event, the father failed to demonstrate that the aid of the court was not required (see Family Ct Act § 1051[c]).
May 25, 2022
Before entering judgment upon the husband’s default, there should have been an inquiry into whether a guardian ad litem was necessary where court explicitly acknowledged that the husband’s absence was likely attributable to his mental health
In Buck v Buck, --- N.Y.S.3d ----, 2022 WL 1572173 (Mem), 2022 N.Y. Slip Op. 03335 (1st Dept.,2022) Judgment was entered in this divorce proceeding after the husband, pro se, failed to appear for an inquest. At the time of the inquest, both the wife and Supreme Court were aware that the husband had been diagnosed with a significant mental health condition, which resulted in episodes during which the husband was demonstrably unable to care for himself or otherwise protect his interests. At the conclusion of the inquest, the court explicitly acknowledged that the husband’s absence was likely attributable to his mental health. The Appellate Divisoin held that before entering judgment upon the husband’s default, there should have been an inquiry into whether a guardian ad litem was necessary (see CPLR 1201, 1203) Because there was no inquiry, it vacated the judgment and the matter remanded for further proceedings, including, if necessary, an inquiry into the husband’s current capacity. The earlier decision of the court was recalled and vacated.
May 18, 2022
Family Court providently exercised its discretion in granting the father’s motion for an attorneys’ fees, since it was reasonable for the court to conclude that the mother’s repetitive motions and other dilatory tactics were undertaken primarily to delay or prolong the resolution of the litigation
In the Matter of Aponte v Jagnarain, --- N.Y.S.3d ----, 2022 WL 1481726, 2022 N.Y. Slip Op. 03111 (2d Dept.,2022) the mother moved to vacate the final order of protection, entered upon her default, and to change venue from Nassau County to New York County, where the child resided. After that motion was denied, the mother made a successive motion for the same relief, and the father cross-moved for an award of attorneys’ fees. Family Court denied the mother’s motions and granted the father’s cross motion and awarded him attorneys’ fees of $2,200. The Appellate Divison affirmed. It held that the mother failed to provide a reasonable excuse for her failure to appear on the day the hearing was scheduled to resume. The mother had discharged her attorney on the eve of the continued hearing, and the court had denied her request for an adjournment, which was a provident exercise of discretion, particularly since the mother had previously discharged counsel under similar circumstances. The mother had no reason to believe that her request for an adjournment had been granted, and despite the court’s numerous attempts to reach the mother by telephone over the course of two days before proceeding with the hearing, the mother did not respond to any of the detailed voicemail messages left by the court for the mother and her sister. It also held that the Family Court providently exercised its discretion in granting the father’s cross motion for an award of attorneys’ fees, since it was reasonable for the court to conclude that the mother’s repetitive motions and other dilatory tactics were “undertaken primarily to delay or prolong the resolution of the litigation” (citing 22 NYCRR 130–1.1[c][2]; see Matter of Mancuso, 48 A.D.3d 570, 849 N.Y.S.2d 909; Ofman v. Campos, 12 A.D.3d 581, 582, 788 N.Y.S.2d 115).
A witness’s testimony in a prior proceeding may be incorporated into a later proceeding if it was given under oath, referred to the same subject-matter, and was heard in a tribunal where the other side was represented and allowed to cross-examine.
In Matter Aponte v Jagnariain, --- N.Y.S.3d ----, 2022 WL 1481731, 2022 N.Y. Slip Op. 03112 (2d Dept.,2022) the factual and procedural background was set forth in Matter of Aponte v. Jagnarain, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2022 WL 1481726 [decided herewith]). There the Family Court conducted a fact-finding hearing in the family offense proceeding, in which the father alleged that the mother had committed the family offense of harassment in that she repeatedly had falsely accused him of sexually abusing the parties’ child, and, upon the mother’s failure to appear at the hearing, issued a final order of protection directing the mother to stay away from the child except for supervised parental access. Thereafter, the Family Court conducted a hearing on the father’s petition to modify the prior orders of custody and parental access issued in this matter by limiting the mother’s parental access with the child to supervised parental access. At the hearing, the court heard testimony from the father, and incorporated the testimony of a witness who, at the hearing in the family offense proceeding, had recounted the accusations made by the mother against the father. In an order dated March 9, 2021, the court, among other things, in effect, granted the father’s petition to modify the prior orders of custody and parental access, and directed the mother to stay away from the child, except for supervised parental access. The Family Court determined that there had been a change in circumstances sufficient to warrant a modification of parental access based on evidence that the mother repeatedly made unfounded allegations that the father had sexually abused the child, and that those accusations required the child, at the age of four, to be subjected to intrusive physical examinations. This Appellate Division affirmed. It held, inter alia, that the Family Court did not err in incorporating into the record of the custody and parental access proceeding the testimony of the witness who had testified at the hearing in the family offense proceeding. A witness’s testimony may be incorporated into a later proceeding if “it was given under oath, referred to the same subject-matter, and was heard in a tribunal where the other side was represented and allowed to cross-examine” (Fleury v. Edwards, 14 N.Y.2d 334, 338–339). Here, the prior testimony was given under oath and referred to the same subject matter, and the mother was allowed to cross-examine the witness at the earlier hearing, but declined to avail herself of that opportunity when she voluntarily absented herself from that hearing. In addition, the mother had the opportunity to call the witness to testify at the hearing in the custody and parental access proceeding, and, if necessary, to request that the court deem her to be a hostile witness so that the mother could impeach her, but she failed to do so.
While an isolated incident cannot support a finding of harassment under Penal Law § 240.26(3) a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose can support such a finding.
In Matter of Breval v Martinez, --- N.Y.S.3d ----, 2022 WL 1481748 (Mem), 2022 N.Y. Slip Op. 03113 (2d Dept.,2022) the petitioner filed a family offense petition alleging that the respondent had committed various family offenses. After a hearing, the court determined, inter alia, in effect, that the petitioner failed to establish by a fair preponderance of the evidence the elements of a family offense and, in effect, denied the petition and dismissed the proceeding. The Appellate Division affirmed. It observed that as relevant here, a person commits the family offense of harassment in the second degree when, with intent to harass, annoy, or alarm another person, he or she ‘engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose’ ” (Penal Law § 240.26[3]). While there is no question that an isolated incident cannot support a finding of harassment, a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose can support such a finding. It held that the Family Court properly found that the evidence adduced at the hearing failed to identify more than an isolated incident. The court’s determination was based on its credibility assessments and supported by the record.
In a termination of parental rights proceeding on the ground of abandonment authorized by Social Services Law § 384–b(4)(b) while a parent’s conduct outside the abandonment period is not determinative in an abandonment proceeding, it may be relevant to assessing parental intent.
In Matter of Grace --- N.Y.S.3d ----, 2022 WL 1481401, 2022 N.Y. Slip Op. 03119 (2d Dept.,2022) the Appellate Division reversed an order which terminated the mothers parental rights on the ground of abandonment. It observed that termination of parental rights is authorized by Social Services Law § 384–b(4)(b). In order to demonstrate that the mother abandoned the children, the petitioner was required to demonstrate by clear and convincing evidence that during the six months prior to the petitions being filed, the mother evinced an intent to forego her parental rights, as manifested by her failure to visit or communicate with the children or the petitioner although able to do so and not prevented or discouraged from doing so by the petitioner (see id. § 384–b[3][g][i]; [4][b]; [5]). It found that the petitioner failed to establish by clear and convincing evidence that the mother evinced an intent to forego her parental rights. The record demonstrated that, during the six-month abandonment period, the mother visited with the children on two occasions, saw the children on at least one additional occasion at a family gathering, purchased clothing for the children, spoke with the case worker on the phone multiple times, and objected to the goal for the children’s placement changing to a kinship adoption rather than returning the children to the mother. Under these circumstances, the Family Court should have denied the petitions on the merits, insofar as asserted against the mother. It noted that the record contained testimony from a case worker that, during family visits subsequent to the filing of the petitions, the mother’s interactions with the children were “very positive.” While a parent’s conduct outside the abandonment period is not determinative in an abandonment proceeding, it may be relevant to assessing parental intent.
May 11, 2022
Appellate Division, First Department
Submission of the retainer agreement with Mother’s reply papers was not fatal to her motion for counsel fees, since the Family Court Act is clear that an award of counsel fees is mandatory
In Bernadette R v Anthony V.L., --- N.Y.S.3d ----, 2022 WL 1462648, 2022 N.Y. Slip Op. 03087 (1st Dept.,2022) the Appellate Division held that Family Court properly concluded that the submission of the retainer agreement with petitioner mother’s reply papers was not fatal to her motion for counsel fees, since the Family Court Act is clear that an award of the counsel fees is mandatory, not discretionary (Family Court Act §§ 454[3]; 438[b]). However, the entry of a money judgment when no order directing payment of counsel fees had been entered was inconsistent with the procedure established by Family Court Act § 460, since the father was not in default in payment of an order.
A pendente lite award may be modified where a court awards an impermissible double shelter allowance resulting from directing the payment of both a child support award under the Child Support Standards Act and the carrying costs on the marital residence.
In Levin v Levin, --- N.Y.S.3d ----, 2022 WL 1414967 (Mem), 2022 N.Y. Slip Op. 03050 (1st Dept.,2022) on a motion for pendente lite support Supreme Court directed plaintiff to pay $4,750 per month for child support, plus 57% of add-on expenses, $60,000 for defendant’s interim counsel fees, and $6,085 per month for the majority of carrying costs for the marital home. The Appellate Division modified the order and remitted the matter to Supreme Court to clarify and recalculate the amount of child support and/or carrying costs for the marital residence. It held that a pendente lite award should only be modified rarely and the general rule is that an aggrieved party’s remedy for perceived inequities in a pendente lite award is a speedy trial. However, a pendente lite award may be modified where a court awards an impermissible double shelter allowance resulting from directing the payment of both a child support award under the Child Support Standards Act and the carrying costs on the marital residence. It held that here, the pendente lite award should be modified as the court directed the plaintiff to pay both child support as well as the majority of the carrying costs on the marital residence, resulting in a double shelter allowance. The court did so even though neither party sought a directive regarding carrying costs on the marital residence and the court failed to provide any explanation as to why it was awarding both child support and carrying costs on the marital residence. It declined to reach the merits of plaintiff’s argument that the pendente lite award should be modified with respect to plaintiff’s obligation to pay retroactive child support and defendant’s counsel fees because plaintiff’s remedy for such perceived inequities is a speedy trial.
Appellate Division, Second Department
Improper to direct parties to equally share the costs of supervised parental access, without evaluating the parties’ economic realities, including ability to pay and the actual cost of each visit
In Matter of Gray v Tyson --- N.Y.S.3d ----, 2022 WL 1414933, 2022 N.Y. Slip Op. 02998 (2d Dept.,2022) the Appellate Division held that the Family Court should not have directed the parties to equally share the costs of the mother’s supervised parental access, without evaluating the parties’ economic realities, including the mother’s ability to pay and the actual cost of each visit. It remitted the matter to the Family Court, for a hearing to resolve those issues, and a determination thereafter regarding the parties’ respective shares of the costs for the mother’s supervised parental access.
Where life insurance is appropriate, it should be set in an amount sufficient to prevent financial injury
In Shvalb v Rubinshtein, --- N.Y.S.3d ----, 2022 WL 1231633, 2022 N.Y. Slip Op. 02827 (2d Dept.,2022) the parties were married in 2007 and had two children born in 2010. The Appellate Division observed that a party’s obligation to pay maintenance and child support terminates upon that party’s death. The death of a payor spouse, however, may cause financial injury to a former spouse or children who, but for the payor spouse’s death, would have continued to receive maintenance, a distributive award, or child support. Accordingly, the legislature has provided that a court may require a payor spouse to maintain life insurance to prevent that financial injury (see Domestic Relations Law § 236[B][8][a ). Thus, where life insurance is appropriate, it should be set in an amount sufficient to achieve that purpose. Here, the Supreme Court should have directed the plaintiff to maintain a life insurance policy for the benefit of the parties’ children until their emancipation. It remitted the matter to the Supreme Court, for a determination of the amount of life insurance sufficient to secure the plaintiff’s child support obligations.
Where a child justifiably relies on the representations of a man that he is his or her father with the result that he or she will be harmed by the man’s denial of paternity, the man may be estopped from making such a denial where it is in the Childs best interest
In Mitches- Lewis v. Lewis, --- N.Y.S.3d ----, 2022 WL 1231541, 2022 N.Y. Slip Op. 02787 (2d Dept.,2022) the parties were married on April 18, 2008. On August 21, 2008, the subject child was born. In August 2018, the plaintiff commenced this action for a divorce. Thereafter, the plaintiff moved, inter alia, for an award of interim counsel fees and to direct the defendant to pay pendente lite child support for the child. The defendant cross-moved to direct the parties and the child to submit to genetic marker testing, asserting that he was not the biological father of the child. Supreme Court, awarded interim counsel fees of $7,000. In a separate order the court denied the defendant’s cross motion to direct the parties and the child to submit to genetic marker testing. The Appellate Division affirmed. It pointed out that where a child justifiably relies on the representations of a man that he is his or her father with the result that he or she will be harmed by the man’s denial of paternity, the man may be estopped from making such a denial. However, 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’ . Here, the Supreme Court providently exercised its discretion in determining that the defendant should be equitably estopped from denying paternity. While the defendant was not present for the child’s birth because he was on overseas military duty at the time, the defendant has not refuted the plaintiff’s assertion that his mother was present for the child’s birth. The defendant was named as the child’s father on the child’s birth certificate, and the child was given the defendant’s surname. Although the parties ended their relationship in September 2008, shortly after the child’s birth, the defendant acknowledged that he voluntarily provided financial support for the needs of the child for around nine years prior to the time he first denied paternity in May 2018. The defendant made no effort to deny his status as the child’s father until after he received a letter in March or April 2018 from a child support enforcement office. The defendant also indicated that he received military benefits for the child since the child’s birth, and provided for health, vision, and dental insurance for the child. Moreover, the child, who was now 13 years old, had only ever known the defendant to be his father. Under the circumstances, the court providently exercised its discretion in determining that it was in the best interest of the child to apply the doctrine of equitable estoppel.
Appellate Division, Third Department
Where agreement requires appraisal from licensed appraisers, if appraiser does not substantially comply with the mandatory USPAP standards his appraisal should not be considered
In Martin v Martin --- N.Y.S.3d ----, 2022 WL 1243095, 2022 N.Y. Slip Op. 02840 (3D Dept., 2022) the parties agreement provided that "the parties . . . shall obtain three (3) appraisals, from licensed appraisers, and the arithmetic mean of these appraisals shall be considered the fair market value of the premises." In a post-judgment enforcement proceeding the husband argued that one appraisal had to be disregarded because the appraiser did not comply with the provisions and standards set forth in the Uniform Standards of Professional Appraisal Practice. The agreement specifically required appraisals from licensed appraisers. The Appellate Division pointed out that pursuant to Executive Law article 6-E, the Board of Real Estate Appraisal adopts regulations establishing standards for appraisals and prescribing the form and content of appraisal reports (see Executive Law § 160-d [1] [d]; [2], [3]). Under these regulations, every appraisal by a certified or licensed real estate appraiser must comply with the provisions and standards set forth in the Uniform Standards of Professional Appraisal Practice (hereinafter USPAP) (see 19 NYCRR 1106.1 [a]), a -4- 532482 document "published by the Appraisal Foundation, which is authorized by the United States Congress as the source of appraisal standards" (19 NYCRR 1106.1 [b]). Thus, a reasonable implication of the agreement was that the parties, by specifying that the appraisers be licensed, intended for the appraisers to comply with appraisal standards mandated for state licensed and certified appraisers. It noted that there is a distinction between state certified real estate appraisers and state licensed real estate appraisers (see e.g., Executive Law §§ 160; 160-a [6] [a], [b]; 160-b [1]; 160-h); certified appraisers have met higher training standards. The Appellate Division held that if it was established that appraiser did not substantially comply with the mandatory USPAP standards (see 19 NYCRR 1106.1 [a]), his appraisal should not be considered as one of the three appraisals required by the parties' agreement. However, if the court determines following this hearing that he substantially complied with USPAP standards in compiling his appraisal report and reaching an opinion on the value of the property, his appraisal should be considered along with those of the other two appraisers, and the husband must pay the wife to purchase her share of equity in the property based upon the mean of those three appraisals.
Although none of judicial surrender documents expressly prohibit contacting the child, such a condition is necessarily included by implication in a judicial surrender which states that Family Court informed respondent that the surrender would result in her “giving up all rights to have custody, visit with, speak with, write or learn about the child, forever,” unless respondent and the local social services agency agreed upon different terms.
In Matter of Riley XX, --- N.Y.S.3d ----, 2022 WL 1243115, 2022 N.Y. Slip Op. 02839 (3d Dept.,2022) the Appellate Division held that enforcement of the post adoption contract agreement was not in the child’s best interests. It found a sound and substantial basis in the record for Family Court’s conclusions that the child’s best interests would be served by prohibiting respondent from contacting the child and that an order of protection was necessary to do so. Further, as respondent was attempting to inappropriately initiate contact with the child and repeatedly posting her pictures in public spaces despite the stated objections of petitioners, the court did not abuse its discretion in refusing to enforce the condition of the post-adoption contact agreement requiring petitioners to provide respondent with pictures and updates. Although none of the documents expressly prohibited respondent from contacting the child, the Appellate Division found such a condition is necessarily included by implication in a judicial surrender which states that Family Court informed respondent that the surrender would result in her “giving up all rights to have custody, visit with, speak with, write or learn about the child, forever,” unless respondent and the local social services agency agreed upon different terms as specified therein. The surrender also stated that it is subject to conditions contained in an attachment, which notes – under a heading of post-adoption communication or contact – that respondent “will receive updates and pictures at least twice per year.” No visitation or other contact with the child is mentioned. If parties to a contract omit terms – particularly, terms that are readily found in other, similar contracts — the inescapable conclusion is that the parties intended the omission”. Thus, by negative implication, the limited affirmative condition in the agreement indicated that no other type of contact had been agreed upon. Family Court apparently recognized that an appropriate method for petitioners to present their concerns about respondent’s attempts to contact the child would have been by a petition for enforcement of the post adoption contact agreement, pursuant to Domestic Relations Law § 112–b (4) (see Social Services Law § 383–c [2][b]). That statutory subdivision provides that “[a]n order incorporating an agreement regarding [postadoption] communication or contact ... may be enforced by any party to the agreement or the attorney for the child by filing a petition in the family court in the county where the adoption was approved. Such petition shall have annexed to it a copy of the order approving the agreement regarding communication or contact. The court shall not enforce an order under this section unless it finds that the enforcement is in the child’s best interests” (Domestic Relations Law § 112–b [4]). Although petitioners did not directly follow that procedural path, they nonetheless met the underlying requirements; they filed their motions in the proper court, attached a copy of the agreement and adoption order, and clearly stated the relief that they requested. Family Court expressly found that respondent “had notice of the relief sought, [was] well aware of the issues, and had the full opportunity to present evidence and argument[s]” at the hearing. Thus, respondent did not demonstrate prejudice arising from the manner in which this matter was initiated. Courts are permitted to ignore a defect in the form of a proceeding, and to convert a motion into a special proceeding (see CPLR 103[c]; 2001; Family Ct Act § 165[a]). It expressly deemed petitioners’ filings to be an application for enforcement of the postadoption contact agreement.
Where upon finding of neglect the child was “directly placed” with Kaline S it was error to dismiss neglect petition upon ground child had not been “in the care of an authorized agency for a period of at least one year prior to [petitioner] filing a permanent neglect petition.” Direct placement authorized by Family Court fell within the purview of Social Services Law § 384–b(1)(b)
In Matter of Frank Q., --- N.Y.S.3d ----, 2022 WL 1243176, 2022 N.Y. Slip Op. 02843 (3d Dept.,2022) the Appellate Division reversed an order which dismissed petitioner’s application, in a proceeding pursuant to Social Services Law § 384–b, to adjudicate the subject child to be permanently neglected. Respondent was the mother of the subject child (born in 2018). Several months after the child’s birth, petitioner commenced a Family Ct Act article 10 proceeding alleging that the child was neglected by respondent and the child’s father. Thereafter, the parties consented to a temporary order of removal of the child and placement with Kaline S., a suitable person known to them. By order of Family Court, a permanency hearing was scheduled for June 2019 “if the child remains in foster care or is directly placed pursuant to [Family Ct Act §§ ] 1017 or 1055.” Thereafter, respondent consented to a finding of neglect and Family Court issued an order of fact-finding and disposition in May 2019, which ordered, pursuant to Family Ct Act § 1055, that the child is “directly placed” with Kaline S. In December 2019, while the child was still in a direct placement with Kaline S., petitioner commenced this permanent neglect proceeding seeking to terminate respondent’s parental rights, alleging that the child had been in the “care of an authorized agency” for a continuous one-year period. Following a five-day fact-finding hearing, although Family Court found “overwhelming evidence” of respondent’s neglect, it dismissed the petition on the ground that the child had not been “in the care of an authorized agency for a period of at least one year prior to [petitioner] filing a permanent neglect petition.” Family Court reasoned that, based on the language in Family Ct Act § 1017(2)(a), there was a clear distinction between a “direct release to a suitable person” like Kaline S. and a “placement with an authorized agency” like petitioner. Although the word “care” is not defined by statute, Family Court held that petitioner’s actions in providing services for the benefit of the child did not rise to that level, such as to “bathe, feed, cloth, educate or do any of the things required to care for the child.” Family Court distinguished this case from Matter of Dale P., 84 N.Y.2d 72, 614 N.Y.S.2d 967, 638 N.E.2d 506 (1994), and noted that the legislative intent of Social Services Law § 384–b was to prevent children from languishing in the foster care system, and it was undisputed that the child had never been in foster care. Petitioner appealed.
The Appellate Division found that Family Court’s interpretation of Social Services Law § 384–b too narrow and calling for a result that is “unnecessarily circuitous”, and ultimately contrary to the stated legislative intent. Regarding the phrase “care of an authorized agency,” courts have consistently held that a direct placement authorized by Family Court, like the order of fact-finding and disposition issued in May 2019 pursuant to Family Ct Act § 1055, falls within the purview of Social Services Law § 384–b. In Matter of Dale P., 84 N.Y.2d at 75–76, 78–79, 614 N.Y.S.2d 967, 638 N.E.2d 506, the Court of Appeals rejected the argument that a child had to be formally placed in foster care, where a finding of abandonment had been made and a child’s care had been with a suitable person pursuant to Family Ct Act § 1055. Similarly, this Court had rejected the “narrow definitional approach” adopted by Family Court that a child who was directly placed with a suitable person was not within the “care of an authorized agency. Other Departments of the Appellate Division have also embraced the validity of a direct placement to satisfy Social Services Law § 384–b (see Matter of Hannah D., 292 A.D.2d 867, 867, 740 N.Y.S.2d 537 [4th Dept. 2002] [holding that “we reject the contention of (the mother) that the proceeding to terminate her parental rights on the ground of permanent neglect could not be maintained where, as here, the children had been placed directly with relatives”]; Matter of Anthony Julius A., 231 A.D.2d 462, 462, 647 N.Y.S.2d 212 [1st Dept. 1996] [finding “no merit to (the mother’s) contention that her parental rights could not be terminated unless the child had first been placed in the care of an authorized agency. Direct placement authorized by the Family Court can also be a predicate for a termination of parental rights proceeding”]). The Court agreed here that the child had been in the care of petitioner to satisfy the statute. Petitioner evaluated Kaline S., performing a background check and interview, before ultimately approving her as a suitable person to care for the child. Although Kaline S. declined a foster care subsidy, she agreed to comply with monitoring and the requests of petitioner, and she further submitted to Family Court’s jurisdiction, consenting to “cooperate with respect to making the child available for court-ordered visitation with respondent[ ], siblings and others, appointments with the child’s attorneys and clinicians and other individuals or programs providing services to the child[ ], [and] visits (including home visits) by the child protective agency.” The record reflected close involvement and coordination between petitioner and Kaline S. during the pendency of this matter. Accordingly, it found that, in further consideration of Social Services Law § 384–b (1)(b), Family Court erred in dismissing the petition on the basis that the child had not been in the “care of an authorized agency.”
An allegation in petition that the parent wanted more parenting time with the child so that they could participate in more activities did not constitute a change in circumstances warranting a hearing as to whether modification would serve the child’s best interests.
In Matter of Joshua KK., v. Jaime.--- N.Y.S.3d ----, 2022 WL 1243133, 2022 N.Y. Slip Op. 02847 (3d Dept.,2022) the Appellate Division reversed an order granted the fathers petition and awarded the father additional parenting time, including overnight visits. It held that the father, as the party seeking modification of a prior custody order, had the threshold burden of showing a change in circumstances since the entry of that prior order so as to trigger an examination as to whether modification would serve the child’s best interests. As a change in circumstances, the father alleged in the petition that he wanted more parenting time with the child so that they could participate in more activities. The father likewise testified at the hearing about the activities that he engaged in with the child during his parenting time and what he would do with her if given more parenting time. Family Court found that a change in circumstances existed – namely, that the father wanted to have a closer relationship with the child and the amount of parenting time provided in the January 2019 order was insufficient to develop that relationship. Even crediting the father’s testimony, the father’s mere dissatisfaction with the amount of parenting time provided in the January 2019 order and the desire for more time did not constitute a change in circumstances.
Where transcript of family offense hearing included in the record on appeal reflected that counsel posed over 80 questions to respondent’s mother and that the parties and Family Court could hear the witness’s answer to only four of those questions, with 77 answers reported as “inaudible” meaningful review was impossible and new hearing ordered.
In Matter of Jereline Z v Joseph A, 2022 WL 1243172 (3d Dept.,2022) Family Court issued an order finding that respondent had committed family offenses and determined that the appropriate disposition was a one-year order of protection in favor of petitioner and the child. Respondent appealed from that order, arguing, among other things, that meaningful review was impossible because the transcript of the fact-finding hearing omitted potentially significant testimony. The Appellate Division observed that the hearing was recorded by an electronic recording system – not a court reporter – and the transcript provided in the record was prepared over seven months later by a commercial transcription service. One of the witnesses called at the hearing was respondent’s mother, who witnessed a November 2019 incident and testified as to what she observed. Although the transcript of the hearing included in the record on appeal reflected that counsel posed over 80 questions to respondent’s mother and that the parties and Family Court could hear her resulting answers, the transcript provides the witness’s answer to only four of those questions, with 77 answers reported as “inaudible.” Petitioner suggested that the absence of that testimony was immaterial, as respondent’s mother testified with regard to a November 2019 incident and Family Court only found that respondent had committed family offenses during an April 2020 incident. The Appellate Division found that it could not assess that argument without the testimony of respondent’s mother, which therefore constituted “a potentially significant portion of the transcript” . As the absence of that testimony made meaningful appellate review an impossibility, it reversed and remitted for a new hearing.
Fathers visitation with child terminated where evidence established that the child’s health and safety were compromised while in the father’s custody, and that continuing risk to her was detrimental to her welfare.
In Matter of Jared MM., v. Mark KK., --- N.Y.S.3d ----, 2022 WL 1414524, 2022 N.Y. Slip Op. 03032 (3d Dept.,2022) the Appellate Division affirmed an order which terminated the fathers visitation where the father routinely failed to avail himself of the parenting time that he was afforded, requiring the grandfather (who was awarded custody) and his wife to distract the child or simply not tell her about possibly seeing the father so as to avoid her confusion or disappointment when he ultimately failed to show up. The father was also the only person to testify at the hearing that he and the child enjoyed a relationship that was in any way beneficial to her. Most significantly, the credible evidence at the hearing demonstrated, by a preponderance of the evidence that the child’s health and safety were compromised while in the father’s custody, and that continuing risk to her was detrimental to her welfare.
The Appellate Division pointed out in a footnote that as a consequence of an order which vacated the father’s prior judicial consent to a private placement adoption because no adoption had taken place it was required to treat his claim to the child as that of a parent. Contrary to the conclusion of Family Court the father was not required to himself establish extraordinary circumstances to proceed on his own petition.
Not every petition to modify custody is automatically entitled to a hearing, including where the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and Family Court has sufficient information to undertake a comprehensive independent review of the child’s best interests.
In the Matter of Nathan PP., v. ANGELA PP., --- N.Y.S.3d ----, 2022 WL 1414475, 2022 N.Y. Slip Op. 03031 (3d Dept.,2022) the Appellate Division affirmed Family Court’s order granting the mother’s motion to dismiss the father amended petition to modify custody. It held that generally, in order to survive a motion to dismiss, the petitioner is required to establish a change in circumstances warranting an inquiry into whether the best interests of the child would be served by modifying the existing custody arrangement. However, parties to a custody proceeding may, like here, stipulate that either party can later seek modification of the custody order without demonstrating a change in circumstances. Despite eliminating that threshold burden of demonstrating a change in circumstances, a party still show that modification of the underlying order is necessary to ensure the child’s continued best interests. Although an evidentiary hearing is generally necessary, not every petition in a Family Court Act article 6 proceeding is automatically entitled to a hearing, including where the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and Family Court has sufficient information to undertake a comprehensive independent review of the child’s best interests.
The Appellate Division cannot treat a document as a notice of appeal when nothing in it suggests that it was intended to be one
In Matter of Washington County Department of Social Services on Behalf of Vernon v. Oudekerk, --- N.Y.S.3d ----, 2022 WL 1414592 (Mem), 2022 N.Y. Slip Op. 03038 (3d Dept.,2022) the Appellate Division pointed out that the power of an appellate court to review a judgment or order is subject to an appeal being timely taken. An appeal is taken from a Family Court order by filing an original notice of appeal with the clerk of the family court in which the order was made and from which the appeal is taken, then serving that notice upon any adverse party as provided for in CPLR 5515(1) and upon the child’s attorney, if any, within the time allowed by Family Ct Act § 1113 (Family Ct Act § 1115). Where an appealing party fails to complete both steps by timely filing a notice of appeal in the proper court and by serving it on the individuals entitled to notice the Court lacks subject matter jurisdiction to hear the appeal. The record did not contain a notice of appeal, with the father instead providing a “notice of poor person requesting permission to proceed” that served the different purposes of requesting poor person relief and the assignment of counsel in anticipation of an appeal from one or more of the January 2021 orders. It held that although a mistake, omission, defect or irregularity in a notice of appeal may be disregarded (CPLR 2001), and it may deem a notice of appeal to be valid where it is premature or contains an inaccurate description of the judgment or order appealed from (CPLR 5520[c]), it cannot treat a document as a notice of appeal when nothing in it suggests that it was intended to be one. Further, the record gave no indication that the document was served upon petitioner as required for a notice of appeal. As the record was devoid of proof that a notice of appeal was filed or served in a timely manner, the appeal was dismissed.
April 27, 2022
Appellate Division, Second Department
Parent’s disrespect for the court’s authority is not a sufficient basis to modify custody.
In Matter of Corcoran v Liebowitz, --- N.Y.S.3d ----, 2022 WL 1160899 (Mem), 2022 N.Y. Slip Op. 02542 (2d Dept.,2022) the Appellate Division reversed an order which, without a hearing, granted the mother’s motion to award her sole legal custody of the children and remitted for a new hearing before a different judge. It held that in order to modify an existing court-sanctioned custody or parental access agreement, there must be a showing that there was a sufficient change in circumstances so that modification is required to protect the best interests of the child. Although a parent seeking a change of custody is not automatically entitled to a hearing custody determinations should generally’ be made ‘only after a full and plenary hearing and inquiry. Where facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute,’ a hearing is required. The record did not demonstrate the absence of unresolved factual issues so as to render a hearing unnecessary. The record suggested that the award of sole legal custody to the mother served more as a punishment to the father for his misconduct than as an appropriate custody award in the children’s best interests. While the Family Court’s determination was initially limited to awarding the mother only decision-making authority as to education for the parties’ youngest child, the court abruptly awarded sole legal custody of both children to the mother in response to the father stating that the court’s decision was “ridiculous” and “demand[ing] we go to trial.” The court advised the father that his interjections “[c]hanged my mind,” and that “I was going to give you the option ... to remain a joint custodian, but ... you didn’t let me even finish my thought.” While the father’s disrespect for the court’s authority should not be countenanced, this was not a sufficient basis to modify custody.
Direction in parental access order, in effect allowing father to determine when the child can have parental access time with the mother is improper delegation of authority
In Felgueiras v Cabral --- N.Y.S.3d ----, 2022 WL 1097247, 2022 N.Y. Slip Op. 02410 (2d Dept.,2022) the Appellate Division vacated that part of an order which after modifying custody to award custody to the father and provide the mother with parental access, directed that in the event that the mother ceases attending a Personalized Recovery Oriented Services (PROS) program before being successfully discharged, or has any unsupervised parental access with the child without prior court approval, parental access shall be immediately suspended. It held that these provisions did not appear to give the mother the opportunity to judicially challenge the father’s determinations concerning her compliance with the Personalized Recovery Oriented Services (PROS) program or whether she had unsupervised parental access with the child, and, consequently, constituted an improper delegation of authority by the Family Court to the father to determine when the child can have parental access time with the mother.
Where the court possesses information sufficient to afford a comprehensive, independent review, a hearing pursuant to Family Court Act § 1061is not required
In the Matter of Sebastian P., --- N.Y.S.3d ----, 2022 WL 1097215 (Mem), 2022 N.Y. Slip Op. 02415 (2d Dept.,2022) the Appellate Division pointed out that pursuant to Family Court Act § 1061, the Family Court may set aside, modify, or vacate any order issued in the course of an article 10 proceeding for “good cause shown. This statute expresses the strong Legislative policy in favor of continuing Family Court jurisdiction over the child and family so that the court can do what is necessary in the furtherance of the child’s welfare. The conducting of a hearing under section 1061 is not mandated, but is left entirely to the Family Court’s discretion. Where the court possesses information sufficient to afford a comprehensive, independent review, a hearing is not required .The Family Court was not required to conduct a hearing before determining the mother’s motion pursuant to Family Court Act § 1061, since the material facts underlying the motion were not in dispute.”
Appellate Division, Fourth Department
The Court has the power to impose restrictions on the childs interactions with third parties during visitation if it is in the child’s best interests to do so
In Matter of Hall v Velez, --- N.Y.S.3d ----, 2022 WL 1196681 (Mem), 2022 N.Y. Slip Op. 02676 (4th Dept., 2022) the Appellate Division affirmed an order that, among other things, modified a prior order of custody and visitation by prohibiting any contact between the parties’ children and the mother’s male friend. It observed that Family Court is ‘afforded wide discretion in crafting an appropriate visitation schedule’ ... and ‘has the power to impose restrictions on [the children’s] interactions with third parties during visitation if it is in the child[ren]’s best interests to do so. The evidence in the record established that the mother’s friend engaged in acts of violence in the presence of the children, repeatedly used drugs with the mother and, along with the mother, frequently and flagrantly violated the court’s temporary order that the children not be in his presence. Consequently, the court properly determined that allowing the mother’s friend to have contact with the children created an unnecessary risk to their health and well-being. It concluded that the court’s determination that it is in the children’s best interests to have no contact with the mother’s friend had a sound and substantial basis in the record.
Recent Legislation (new matter underlined)
Domestic Relations Law 13-b
Laws of 2022, Ch 56,§ 39 amended Domestic Relations Law 13-b to read as follows:
§ 13-b. Time within which marriage may be solemnized. A marriage shall
not be solemnized within twenty-four hours after the issuance of the
marriage license, unless authorized by an order of a court of record as
hereinafter provided, nor shall it be solemnized after sixty days from
the date of the issuance of the marriage license unless authorized
pursuant to section ten of the
veterans' services law. Every license to marry hereafter issued by a
town or city clerk, in addition to other requirements specified by this
chapter, must contain a statement of the day and the hour the license is
issued and the period during which the marriage may be solemnized. It
shall be the duty of the clergyman or magistrate performing the marriage
ceremony, or if the marriage is solemnized by written contract, of the
judge before whom the contract is acknowledged, to annex to or endorse
upon the marriage license the date and hour the marriage is solemnized.
A judge or justice of the supreme court of this state or the county
judge of the county in which either party to be married resides, or the
judge of the family court of such county, if it shall appear from an
examination of the license and any other proofs submitted by the parties
that one of the parties is in danger of imminent death, or by reason of
other emergency public interest will be promoted thereby, or that such
delay will work irreparable injury or great hardship upon the contract-
ing parties, or one of them, may, make an order authorizing the immedi-
ate solemnization of the marriage and upon filing such order with the
clergyman or magistrate performing the marriage ceremony, or if the
marriage is to be solemnized by written contract, with the judge before
whom the contract is acknowledged, such clergyman or magistrate may
solemnize such marriage, or such judge may take such acknowledgment as
the case may be, without waiting for such three day period and twenty-
four hour period to elapse. The clergyman, magistrate or judge must file
such order with the town or city clerk who issued the license within
five days after the marriage is solemnized. Such town or city clerk must
record and index the order in the book required to be kept by him or her
for recording affidavits, statements, consents and licenses, and when so
recorded the order shall become a public record and available in any
prosecution under this section. A person who shall solemnize a marriage
in violation of this section shall be guilty of a misdemeanor and upon
conviction thereof shall be punished by a fine of fifty dollars for each
offense, and in addition thereto, his or her right to solemnize a
marriage shall be suspended for ninety days.
Domestic Relations Law § 14-a (3)(a)
Laws of 2022, Ch 56, § 3.Amended Domestic Relations Law § 14-a (3)(a) to read as follows:
a. No fee shall be charged for any certificate when required by the
United States department of veterans affairs or by the
department of veterans' services of the state of New York to be used in
determining the eligibility of any person to participate in the benefits
made available by the United States department of veterans affairs or by
the state of New York.
Domestic Relations Law §19(1)
Laws of 2022, Ch 56, § 4. amended Domestic Relations Law §19(1)to read as follows:
1. Each town and city clerk hereby empowered to issue marriage
licenses shall keep a book supplied by the state department of health in
which such clerk shall record and index such information as is required
therein, which book shall be kept and preserved as a part of the public
records of his or her office. Whenever an application is made for a
search of such records the city or town clerk, excepting the city clerk
of the city of New York, may make such search and furnish a certificate
of the result to the applicant upon the payment of a fee of five dollars
for a search of one year and a further fee of one dollar for the second
year for which such search is requested and fifty cents for each addi-
tional year thereafter, which fees shall be paid in advance of such
search. Whenever an application is made for a search of such records in
the city of New York, the city clerk of the city of New York may make
such search and furnish a certificate of the result to the applicant
upon the payment of a fee of five dollars for a search of one year and a
further fee of one dollar for the second year for which search is
requested and fifty cents each additional year thereafter. Notwithstand-
ing any other provision of this article, no fee shall be charged for any
search or certificate when required by the United States department of
veterans affairs or by the department of veterans' services
of the state of New York to be used in determining the eligibility of
any person to participate in the benefits made available by the United
States department of veterans affairs or by the state of New York. All
such affidavits, statements and consents, immediately upon the taking or
receiving of the same by the town or city clerk, shall be recorded and
indexed as provided herein and shall be public records and open to
public inspection whenever the same may be necessary or required for
judicial or other proper purposes. At such times as the commissioner
shall direct, the said town or city clerk, excepting the city clerk of
the city of New York, shall file in the office of the state department
of health the original of each affidavit, statement, consent, order of a
justice or judge authorizing immediate solemnization of marriage,
license and certificate, filed with or made before such clerk during the
preceding month. Such clerk shall not be required to file any of said
documents with the state department of health until the license is
returned with the certificate showing that the marriage to which they
refer has been actually performed.
The county clerks of the counties comprising the city of New York
shall cause all original applications and original licenses with the
marriage solemnization statements thereon heretofore filed with each,
and all papers and records and binders relating to such original docu-
ments pertaining to marriage licenses issued by said city clerk, in
their custody and possession to be removed, transferred, and delivered
to the borough offices of the city clerk in each of said counties.
Domestic Relations Law §20-c
Laws of 2022, Ch 57, §1 added Section 20-c to the Domestic Relations Law to read as follows:
§ 20-c. Certification of marriage; new certificate in case of subse-
quent change of name or gender. 1. A new marriage certificate shall be
issued by the town or city clerk where the marriage license and certif-
icate was issued, upon receipt of proper proof of a change of name or
gender designation. Proper proof shall consist of: (a) a judgment, order
or decree affirming a change of name or gender designation of either
party to a marriage; (b) an amended birth certificate demonstrating a
change of name or gender designation; (c) in the case of a change of
gender designation, a notarized affidavit from the individual attesting
to their change of gender designation; or (d) such other proof as may be
established by the commissioner of health.
2. When a new marriage certificate is made pursuant to this section,
the town or city clerk shall substitute such new certificate for the
marriage certificate then on file, if any, and shall send the state
commissioner of health a digital copy of the new marriage certificate in
a format prescribed by the commissioner, with the exception of the city
clerk of New York who shall retain their copy. The town or city clerk
shall make a copy of the new marriage certificate for the local record
and hold the contents of the original marriage certificate confidential
along with all supporting documentation, papers and copies pertaining
thereto. It shall not be released or otherwise divulged except by order
of a court of competent jurisdiction.
3. The town or city clerk shall be entitled to a fee of ten dollars
for the amendment and certified copy of any marriage certificate in
accordance with the provisions of this section.
4. The state commissioner of health may, in their discretion, report
to the attorney general any town or city clerk that, without cause,
fails to issue a new marriage certificate upon receipt of proper proof
of a change of name or gender designation in accordance with this
section. The attorney general shall thereupon, in the name of the state
commissioner of health or the people of the state, institute such action
or proceeding as may be necessary to compel the issuance of such new
marriage certificate.
(§2 of the Act provides that this provision is effective six months
After it shall have become a law.)
Family Court Act §302.1(4)
Laws of 2022, Ch 56 § 1 amended Family Court Act §302.1 by adding a new subdivision 4 to read as follows:
4. Where a proceeding had been commenced in the youth part of a supe-
rior court for an act alleged to have been committed prior to his or her
eighteenth birthday and then had been removed to family court, the fami-
ly court shall exercise jurisdiction under this article, notwithstanding
the fact that the respondent may be over the age of eighteen prior to
the proceeding having commenced in the family court.
Family Court Act § 302.2
Laws of 2022, Ch 56, § 2 amended Family Court Act § 302.2 to read as follows:
§ 302.2. Statute of limitations. A juvenile delinquency proceeding
must be commenced within the period of limitation prescribed in section
30.10 of the criminal procedure law or, unless the alleged act is a
designated felony as defined in subdivision eight of section 301.2 of
this part or is an act allegedly committed when the respondent was aged
sixteen years or older, commenced before the respondent's eighteenth
birthday, whichever occurs earlier, provided however, that consistent
with subdivision four of section 302.1 of this part, a proceeding
commenced for an act allegedly committed when the respondent was aged
sixteen years or older shall be considered timely if it is commenced
within such period of limitation prescribed in section 30.10 of the
criminal procedure law or prior to the respondent's twentieth birthday,
whichever occurs earlier, regardless of whether the action had
originally been commenced prior to the respondent's eighteenth birthday
in a youth part of a superior court. When the alleged act constitutes a
designated felony as defined in subdivision eight of section 301.2 of
this part or is an act allegedly committed when the respondent was aged
sixteen years or older, such proceeding must be commenced within such
period of limitation or before the respondent's twentieth birthday,
whichever occurs earlier.
Family Court Act §309.1
Laws of 2022, Ch 56, § 3 amended the Family Court Act by adding a new section 309.1 to read as follows:
§ 309.1. Community based treatment referrals. 1. A youth who is
released prior to the filing of a petition shall be made aware of and
referred to community based organizations offering counseling, treat-
ment, employment, educational, or vocational services in which they may
voluntarily enroll or participate. Such services shall be separate from
and in addition to any adjustment services provided under section 308.1
of this part, where applicable.
2. The youth shall be advised that the service referrals are being
made as a resource and participation in them is voluntary and that
refusal to participate will not negatively impact any aspect of their
pending case. Provided, however, nothing shall preclude the youth from
voluntarily providing information, after consulting with their attorney,
demonstrating successful enrollment, participation, and completion,
where applicable, of any such services. The court shall consider any
information provided by the youth regarding such participation in the
case proceedings including but not limited to dispositional or placement
determinations. The court may require supporting documentation for any
such consideration that the youth requests, provided however, that such
information shall be maintained as confidential in accordance with any
applicable state or federal law.
3. No statements made to probation when discussing any service refer-
rals under this section shall be admissible in a fact-finding hearing.
(§ 4 of the Act provides. This act shall take effect immediately; provided that section three of this act shall apply to offenses committed on or after such date and to offenses for which the statute of limitations that was in effect prior to such date has not elapsed as of such date.)
Juvenile Delinquincy Amendments (new matter underlined)
Laws of 2022 Ch 38 approved February 24, 2022, effective December 29, 2022
amended Chapter 810 of the laws of 2021 by making technical changes related to the law defining the age in which a youth would be considered a juvenile delinquent. The amendment takes effect one year after it shall have become a law.
Family Court Act § 117 (b) opening paragraph:
Laws of 2022, Ch 38, Section 1 amended Family Court Act § 117 (b) opening paragraph to read as follows:
For every juvenile delinquency proceeding under article three involv-
ing an allegation of an act committed by a person which, if done by an
adult, would be a crime (i) defined in sections 125.27 (murder in the
first degree); 125.25 (murder in the second degree); 135.25 (kidnapping
in the first degree); or 150.20 (arson in the first degree) of the penal
law committed by a person thirteen, fourteen, fifteen, sixteen, or
seventeen years of age; or such conduct committed as a sexually moti-
vated felony, where authorized pursuant to section 130.91 of the penal
law; (ii) defined in sections 120.10 (assault in the first degree);
125.20 (manslaughter in the first degree); 130.35 (rape in the first
degree); 130.50 (criminal sexual act in the first degree); 130.70
(aggravated sexual abuse in the first degree); 135.20 (kidnapping in the
second degree), but only where the abduction involved the use or threat
of use of deadly physical force; 150.15 (arson in the second degree); or
160.15 (robbery in the first degree) of the penal law committed by a
person thirteen, fourteen, fifteen, sixteen, or seventeen years of
age; or such conduct committed as a sexually motivated felony, where
authorized pursuant to section 130.91 of the penal law; (iii) defined in
the penal law as an attempt to commit murder in the first or second
degree or kidnapping in the first degree committed by a person thirteen,
fourteen, fifteen, sixteen, or seventeen years of age; or such
conduct committed as a sexually motivated felony, where authorized
pursuant to section 130.91 of the penal law; (iv) defined in section
140.30 (burglary in the first degree); subdivision one of section 140.25
(burglary in the second degree); subdivision two of section 160.10
(robbery in the second degree) of the penal law; or section 265.03 of
the penal law, where such machine gun or such firearm is possessed on
school grounds, as that phrase is defined in subdivision fourteen of
section 220.00 of the penal law committed by a person fourteen [or],
fifteen, sixteen, or seventeen years of age; or such conduct committed
as a sexually motivated felony, where authorized pursuant to section
130.91 of the penal law; (v) defined in section 120.05 (assault in the
second degree) or 160.10 (robbery in the second degree) of the penal law
committed by a person fourteen, fifteen, sixteen, or seventeen
years of age but only where there has been a prior finding by a court
that such person has previously committed an act which, if committed by
an adult, would be the crime of assault in the second degree, robbery in
the second degree or any designated felony act specified in clause (i),
(ii) or (iii) of this subdivision regardless of the age of such person
at the time of the commission of the prior act; or (vi) other than a
misdemeanor, committed by a person at least twelve but less than
eighteen years of age, but only where there have been
two prior findings by the court that such person has committed a prior
act which, if committed by an adult, would be a felony:
Family Court Act § 301.2 (1)
Laws of 2022 Ch 38 § 2 amended Family Court Act § 301.2 (1) to read as follows:
1. "Juvenile delinquent" means a person over
seven and less than sixteen years of age, or commencing on October
first, two thousand eighteen a person over seven and less than seventeen
years of age, and commencing October first, two thousand nineteen a
person over seven and less than eighteen years of age, who, having
committed an act that would constitute a crime, or a violation, where
such violation is alleged to have occurred in the same transaction or
occurrence of the alleged criminal act, if committed by an adult, (a) is
not criminally responsible for such conduct by reason of infancy, or (b)
is the defendant in an action ordered removed from a criminal court to
the family court pursuant to article seven hundred twenty-five of the
criminal procedure law.
Family Court Act § 301.2 (1)
Laws of 2022 Ch 38 § 3 amended Family Court Act § 301.2 (1) to read as follows:
1. "Juvenile delinquent" means:
(a)(i) a person at least twelve and less than eighteen years of age, having committed an act that would constitute a crime if committed by an
adult; or
(ii) a person over sixteen and less than seventeen years of age or, a
person over sixteen and less than eighteen years of age commencing Octo-
ber first, two thousand nineteen, having committed an act that would
constitute a violation as defined by subdivision three of section 10.00
of the penal law if committed by an adult, where such violation is
alleged to have occurred in the same transaction or occurrence of the
alleged criminal act; or
(iii) a person over the age of seven and less than twelve years of age
having committed an act that would constitute one of the following
crimes, if committed by an adult: (A) aggravated criminally negligent
homicide as defined in section 125.11 of the penal law; (B) vehicular
manslaughter in the second degree as defined in section 125.12 of the
penal law; (C) vehicular manslaughter in the first degree as defined in
section 125.13 of the penal law; (D) aggravated vehicular homicide as
defined in section 125.14 of the penal law; (E) manslaughter in the
second degree as defined in section 125.15 of the penal law; (F)
manslaughter in the first degree as defined in section 125.20 of the
penal law; (G) aggravated manslaughter in the second degree as defined
in section 125.21 of the penal law; (H) aggravated manslaughter in the
first degree as defined in section 125.22 of the penal law; (I) murder
in the second degree as defined in section 125.25 of the penal law; (J)
aggravated murder as defined in section 125.26 of the penal law; and (K)
murder in the first degree as defined in section 125.27 of the penal
law; and
(b) who is:
(i) not criminally responsible for such conduct by reason of infan-
Cy ; or
(ii) the defendant in an action ordered removed from a crimi-
nal court to the family court pursuant to article seven hundred twenty-
five of the criminal procedure law.
Family Court Act § 301.2 (8)
Laws of 2022 Ch 38 § 4 Amended Family Court Act § 301.2 (8) to read as follows:
8. "Designated felony act" means an act which, if done by an adult,
would be a crime: (i) defined in sections 125.27 (murder in the first
degree); 125.25 (murder in the second degree); 135.25 (kidnapping in the
first degree); or 150.20 (arson in the first degree) of the penal law
committed by a person thirteen, fourteen, fifteen, sixteen, or seventeen
years of age; or such conduct committed as a sexually motivated felony,
where authorized pursuant to section 130.91 of the penal law; (ii)
defined in sections 120.10 (assault in the first degree); 125.20
(manslaughter in the first degree); 130.35 (rape in the first degree);
130.50 (criminal sexual act in the first degree); 130.70 (aggravated
sexual abuse in the first degree); 135.20 (kidnapping in the second
degree) but only where the abduction involved the use or threat of use
of deadly physical force; 150.15 (arson in the second degree) or 160.15
(robbery in the first degree) of the penal law committed by a person
thirteen, fourteen, fifteen, sixteen, or seventeen years of age; or such
conduct committed as a sexually motivated felony, where authorized
pursuant to section 130.91 of the penal law; (iii) defined in the penal
law as an attempt to commit murder in the first or second degree or
kidnapping in the first degree committed by a person thirteen, fourteen,
fifteen, sixteen, or seventeen years of age; or such conduct committed
as a sexually motivated felony, where authorized pursuant to section
130.91 of the penal law; (iv) defined in section 140.30 (burglary in the
first degree); subdivision one of section 140.25 (burglary in the second
degree); subdivision two of section 160.10 (robbery in the second
degree) of the penal law; or section 265.03 of the penal law, where such
machine gun or such firearm is possessed on school grounds, as that
phrase is defined in subdivision fourteen of section 220.00 of the penal
law committed by a person fourteen, fifteen, sixteen, or seventeen
years of age; or such conduct committed as a sexually motivated felony,
where authorized pursuant to section 130.91 of the penal law; (v)
defined in section 120.05 (assault in the second degree) or 160.10
(robbery in the second degree) of the penal law committed by a person
fourteen, fifteen, sixteen or seventeen years of age but only where
there has been a prior finding by a court that such person has previous-
ly committed an act which, if committed by an adult, would be the crime
of assault in the second degree, robbery in the second degree or any
designated felony act specified in paragraph (i), (ii), or (iii) of this
subdivision regardless of the age of such person at the time of the
commission of the prior act; (vi) other than a misdemeanor committed by
a person at least twelve but less than eighteen years of age, but only
where there have been two prior findings by the court that such person
has committed a prior act which, if committed by an adult, would be a
felony.
Family Court Act §304.1 (3)
Laws of 2022 Ch 38 § 5. Amended Family Court Act §304.1 (3) to read as follows:
3. The detention of a child under ten years of age in a
secure detention facility shall not be directed under any of the
provisions of this article.
Family Court Act §304.1 (3)
Laws of 2022 Ch 38 § 6. Amended Family Court Act §304.1 (3)to read as follows:
3. The detention of a child under thirteen years of age in a
secure detention facility shall not be directed, unless such child is at
least ten years old and is considered a juvenile delinquent pursuant to
subparagraph (iii) of paragraph (a) of subdivision one of section 301.2
of this article, nor shall the detention of a child adjudicated solely
for an act that would constitute a violation as defined in subdivision
three of section 10.00 of the penal law, be directed under any of the
provisions of this article.
Social Services Law §409-a(1)(a)
Laws of 2022 Ch 38 § 7. Amended Social Services Law §409-a (1)(a) to read as follows:
(a) A social services official shall provide preventive services to a
child and his or her family, in accordance with the family's service
plan as required by section four hundred nine-e of this chapter and the
social services district's child welfare services plan submitted and
approved pursuant to section four hundred nine-d of this chapter, upon a
finding by such official that (i) the child will be placed, returned to
or continued in foster care unless such services are provided and that
it is reasonable to believe that by providing such services the child
will be able to remain with or be returned to his or her family, and for
a former foster care youth under the age of twenty-one who was previous-
ly placed in the care and custody or custody and guardianship of the
local commissioner of social services or other officer, board or depart-
ment authorized to receive children as public charges where it is
reasonable to believe that by providing such services the former foster
care youth will avoid a return to foster care or (ii) the child is the
subject of a petition under article seven of the family court act or by
the probation service, to be at risk of being the subject of such a
petition, and the social services official determines that the child is
at risk of placement into foster care or (iii) the child is under the
age of twelve, the child does not fall under the definition of a juve-
nile delinquent pursuant to subparagraph (iii) of para-
graph (a) of subdivision one of section 301.2 of the family court act
and but for their age, their behavior would bring them within the juris-
diction of the family court pursuant to article three of the family
court act, and the social services official determines that the child is
at risk of placement into foster care. Such finding shall be entered in
the child's uniform case record established and maintained pursuant to
section four hundred nine-f of this article. The commissioner shall
promulgate regulations to assist social services officials in making
determinations of eligibility for mandated preventive services pursuant
to this subparagraph.
Laws of 2022 Ch 38 § 6 Effective date
Laws of 2022 Ch 38 § 6 § 13 provides that the amendments shall take effect on the same date and in the same manner as a chapter of the laws of 2021 amending the family court act, the social services law and the executive law relating to raising the lower age of juvenile delinquency jurisdiction from age seven to age twelve and establishing differential response programs for children under the age of twelve, as proposed in legislative bills numbers S.4051-A and A. 4982-A, takes effect; provided, however, that the amendments to subparagraph (ii) of paragraph (a) of subdivision 1 of section
409-a of the social services law made by section seven of this act shall
not affect the expiration of such subparagraph and shall be deemed to
expire therewith.
April 13, 2022
Appellate Division, First Department
Plaintiff failed to demonstrate that child support award, based on a $250,000 income cap, was insufficient to meet the children’s “actual needs” to live an “appropriate lifestyle” as evidence reflected that the parties lived a comfortable upper-middle-class lifestyle and both had significant financial resources to support the use of the cap. Awarding defendant a $291,513.40 credit against future add-on expenses for his overpayment of child support during the pendency of the matter did not violate public policy.
In Castelloe v Fong, --- N.Y.S.3d ----, 2022 WL 960668, 2022 N.Y. Slip Op. 02190 (1st Dept.,2022) the Appellate Division affirmed an order which, to the extent appealed from as limited by the briefs, confirmed the Special Referee’s report, awarding plaintiff monthly basic child support of $3,333.33, and, awarded defendant a child support overpayment credit of $291,513.40 against his future share of add-on expenses.
It held that the court providently exercised its discretion in imputing income to the parties. The Referee properly imputed income of $250,000 to defendant based on the cash gifts he received from his parents during the three years preceding the hearing, and omitting earlier gifts used to purchase his current residence and to pay the parties’ legal fees. The Referee properly rejected plaintiff’s contention that additional income should be imputed to defendant based on his earning capacity, given the evidence demonstrating that the 60–year–old defendant was terminated from his job before the marriage and had not worked full-time since 2008, three years before the commencement of this divorce action. Plaintiff presented no expert testimony to establish defendant’s earning capacity at the time of the hearing, and there was no evidence that defendant intentionally diminished his income to avoid his support obligations.
Although plaintiff argued that the Referee relied on an outdated lifestyle analysis in fashioning a child support award and that the award does not capture the economic realities of raising now teenaged children, she failed to demonstrate that the award, based on a $250,000 income cap, was insufficient to meet the children’s “actual needs” to live an “appropriate lifestyle” (Matter of Culhane v. Holt, 28 A.D.3d 251, 252, 813 N.Y.S.2d 400 [1st Dept. 2006]. The trial evidence reflected that the parties lived a comfortable upper-middle-class lifestyle and that both parties had significant financial resources to support the use of a $250,000 cap.
It rejected Plaintiff’s argument that awarding defendant a $291,513.40 credit against future add-on expenses for his overpayment of child support during the pendency of this matter violated public policy because it will effectively extinguish his child support obligation. While public policy forbids offsetting over payments against basic child support, it does not forbid offsetting against add-on expenses. Given that plaintiff had sufficient financial resources at her disposal, it found that defendant was entitled to use any overpayment, retroactive to the agreed-upon date of January 27, 2017, to offset his share of future add-on expenses.
Appellate Division rejected husband claim that the wife and her counsel drove up litigation costs, where the Special Referee and the court found both parties caused delays and took intransigent positions that prevented settlement. A Counsel fee award is not based solely on litigation conduct; the paramount factor is financial need.
In Rennock v Rennock, 2022 WL 960872 (1st Dept., 2022) the Appellate Division found that the husband’s arguments concerning maintenance were unavailing. The amount and duration of maintenance is a matter committed to the sound discretion of the trial court and he did not show that the award to the wife of $2,500 per onth, with such payments to cease in July 2022, when she will be age 66 and able to receive social security benefits, was an abuse of such discretion.
As to the $2,559 per month in child support, the Special Referee’s reliance on the husband’s 2014 income, and the inclusion of capital gains in assessing that year’s income for CSSA purposes, was a provident exercise of discretion. The Special Referee canvassed his income from other years and, as its summary of such income shows, the 2014 income was not the anomaly he claimed it to be. Nor did he show reason to revisit the inclusion of capital gains in the income calculation.
It affirmed the $162,500 counsel fee award (Domestic Relations Law § 237). The husband claimed the wife and her counsel drove up litigation costs, but the Special Referee and the court found both parties caused delays and took intransigent positions that prevented settlement. Further, such award is not based solely on litigation conduct; the paramount factor is financial need a factor whose application here the husband showed no reason to revisit.
Appellate Division, Second Department
The child’s fear and anxiety was a sound and substantial basis to limit parental access with the child to letters, and weekly one-hour telephone or video sessions as consented to by the child.
In Matter of Walker v. Sterkowicz-Walker, --- N.Y.S.3d ----, 2022 WL 960668, 2022 N.Y. Slip Op. 02190 (2d Dept.,2022) after two court-ordered “observation and evaluation” virtual visits between the mother and the child, which were supervised by two licensed social workers, and upon supplemental findings, the court awarded the mother parental access with the child only to the extent of allowing the mother to communicate with the child through written letters either by regular mail or electronically, and by speaking with the child weekly by telephone or by Skype, Zoom, or other electronic video platform for up to one hour, provided that the child consents. The Appellate Division affirmed. It held that the determination of appropriate parental access is entrusted to the sound discretion of the Family Court, and the determination will not be set aside unless it lacks a sound and substantial basis in the record. Here, a sound and substantial basis existed in the record to limit her parental access with the child to letters, and weekly one-hour telephone or video sessions as consented to by the child. The testimony of the father and the child’s therapist as to the child’s fear and anxiety surrounding parental access, the social workers’ observation of physical symptoms of that fear and anxiety in the child, and the therapist’s testimony that visitation between the mother and the child would be “very damaging” to the child, all supported limiting parental access to letters, and to weekly one-hour telephone or video sessions as consented to by the child.
The state issuing a child support order retains continuing, exclusive jurisdiction over its child support orders so long as an individual contestant continues to reside in the issuing state. A state may modify the issuing state’s order of child support only when the issuing state has lost continuing, exclusive jurisdiction
In Matter of Salim v Freeman, --- N.Y.S.3d ----, 2022 WL 1020819 (Mem), 2022 N.Y. Slip Op. 02268 (2d Dept.,2022) the mother and the father were the parents of a child who was born Virginia in 2007. In September 2020, the father commenced a proceeding in New York for child support pursuant to the Uniform Interstate Family Support Act (UIFSA). The Support Magistrate issued a temporary order of support directing the mother to pay child support to the father. The mother moved to dismiss the petition on the ground, among others, in effect, that the Family Court lacked jurisdiction because there was a prior child support order that had been issued by a court in Virginia. The Support Magistrate granted the mother’s motion, dismissed the petition, and vacated the temporary order of support. Family Court, granted the father’s objections and reinstated the temporary order of support. The Appellate Division reversed. It observed that the UIFSA, adopted in New York as article 5–B of the Family Court Act, grants continuing, exclusive jurisdiction over’ a child support order to the state that issued the order (Family Ct Act § 580–205[a]). Under the Full Faith and Credit for Child Support Orders Act and UIFSA, the state issuing a child support order retains continuing, exclusive jurisdiction over its child support orders so long as an individual contestant continues to reside in the issuing state. A state may modify the issuing state’s order of child support only when the issuing state has lost continuing, exclusive jurisdiction . In this context, a “modification” is defined to mean “a change in a child support order that affects the amount, scope, or duration of the order and modifies, replaces, supersedes, or otherwise is made subsequent to the child support order” (28 USC § 1738B[b][8]). Support for the parties’ child was previously awarded to the mother in an order issued by a court within the jurisdiction of Virginia prior to the filing of the father’s petition. Accordingly, his petition was in the nature of a “modification” petition, rather than a “de novo” application. Since the father resided in the Commonwealth of Virginia, that entity retained continuing, exclusive jurisdiction of its child support order, and New York did not have jurisdiction to modify it.
Appellate Division, Third Department
The amount and duration of a maintenance award will not be disturbed provided that the statutory factors and the parties’ predivorce standard of living are considered. The court need not articulate every factor it considers, but it must provide a reasoned analysis of the factors it ultimately relies upon in awarding or declining to award maintenance. Findings of fact submitted pursuant to CPLR 4213(a) cannot constitute the decision of the court as mandated by Domestic Relations Law § 236(B)(5)(g).
Counsel fees properly denied where wife failed to support her claim by filing a copy of the retainer agreement and a detailed affidavit setting forth the charges incurred.
In Louie v Louie, --- N.Y.S.3d ----, 2022 WL 959399, 2022 N.Y. Slip Op. 02172 (3rd Dept.,2022) the Plaintiff (wife) and defendant ( husband) were married in 1975 and had one emancipated child (born in 1976). The parties separated in 2007, and, in 2019, the wife commenced a divorce action. A bench trial was conducted to determine the issues of maintenance, equitable distribution and classification of the assets. Following the trial, Supreme Court adopted the findings of fact and conclusions of law submitted by the husband and issued a judgment of divorce. The judgment distributed the marital assets, directed the sale of certain properties and found that certain financial accounts were the husband’s separate property, but declined to award the wife maintenance or counsel fees.
The Appellate Division noted that the amount and duration of a maintenance award are addressed to the sound discretion of the trial court, and will not be disturbed provided that the statutory factors and the parties’ predivorce standard of living are considered. The court need not articulate every factor it considers, but it must provide a reasoned analysis of the factors it ultimately relies upon in awarding or declining to award maintenance. Supreme Court wholly adopted verbatim the husband’s proposed findings of fact and conclusions of law, without articulating the factors it considered or providing a reasoned analysis for its rulings on the proposed findings of fact and conclusions of law. Findings of fact submitted pursuant to CPLR 4213(a) cannot constitute the decision of the court as mandated by Domestic Relations Law § 236(B)(5)(g). (Capasso v. Capasso, 119 A.D.2d 268, 269, 506 N.Y.S.2d 686 [1986].
The trial testimony established that this was a 44–year marriage and both parties were retired, with the husband having retired in 1999 and the wife in 2016. The proof demonstrates that the wife earned approximately $31,582 per year and the husband earned approximately $117,000. The wife paid for a family health insurance plan through her former employer, and the husband and the wife also have Medicare. The parties’ predivorce standard of living was very comfortable. Given the lengthy term of the marriage, the significant disparity between the parties’ incomes and the unlikelihood that the wife will be able to close that gap despite her receiving additional assets from the equitable distribution of the marital property, as a majority of the husband’s income is from his separate property, it found that the husband should pay the wife monthly maintenance of $2,1391 for a period of 20 years. With regard to the effective date of the maintenance award, generally, awards are retroactive to the date an action for divorce is commenced. It found that the wife, who requested maintenance in both the summons with notice and the complaint, was entitled to a retroactive award of maintenance to the commencement of the divorce action.
The Appellate Division affirmed the denial of the wife’s request for counsel fees. The record failed to demonstrate that the wife properly supported her claim by filing a copy of the retainer agreement and a detailed affidavit setting forth the charges incurred (see Domestic Relations Law § 237[a]; 22 NYCRR 1400.3). An award of counsel fees requires that an evidentiary basis be established as to two elements: the parties’ respective financial circumstances and the value of the legal services rendered. Although the wife was the less-monied spouse, the record evidence indicating the amount of counsel fees that she expended, without more, failed to furnish a meaningful way to gauge the value of the services rendered.
The Appellate Division rejected the wife’s argument that Supreme Court erred in characterizing the husband’s funds in his Sterling Bank account and Citibank account as separate property. The husband testified, without contradiction, that he inherited funds from his parents and that he placed those funds in an account in his name only at Sterling Bank. The funds remained in his name, and the funds were never placed in the wife’s name. As to the Citibank account, the husband testified that this account was initially in his mother’s name. The husband’s name was added to the account to assist in paying his mother’s expenses. The wife’s name was never added to the account. Moreover, the wife failed to demonstrate that the account was later transmuted into marital property by commingling the funds.
The amount and duration of a maintenance award will not be disturbed provided that the statutory factors and the parties’ predivorce standard of living are considered. The court need not analyze and apply each and every factor set forth in the statute, but must provide a reasoned analysis of the factors it ultimately relies upon in awarding maintenance.
In Giulilano v Giuliano,--- N.Y.S.3d ----, 2022 WL 959403, 2022 N.Y. Slip Op. 02160 (3d Dept.,2022) Plaintiff (husband) and defendant ( wife) were married in 1993 and had three children (born in 1994, 1998 and 2007). In 2015, the husband commenced the divorce action.
The Appellate Division rejected the wife’s argument that Supreme Court erred in imputing income to her. Income may be imputed based upon a prior employment experience, as well as such person’s future earning capacity in light of that party’s educational background. At trial, the wife testified that she was a registered nurse and that she applied for various full-time nursing jobs. She had worked part time as a nurse but also taught yoga classes. The wife explained that she could not work on a full-time basis because of the needs of the youngest child. The wife’s friend, however, was asked at trial whether the wife made any comment to her to the effect that returning to full-time work would hurt her divorce case, to which the friend responded, “I believe so.” The friend also testified that she did not tell the wife about nursing opportunities because “[t]here was no interest.” The Appellate Division held that although the wife argued that Supreme Court improperly relied on the friend’s testimony in imputing income to her, it was within the province of the court, as the trier of fact, to credit such testimony. Furthermore, the court considered that there was no proof indicating that the wife was not capable of full-time employment as a nurse. In view of the record evidence and taking into account that the court’s credibility determinations are entitled to deference, the court providently exercised its discretion in imputing income to the wife. Supreme Court did not err in imputing income to her in the amount of $58,000. The court reached this $58,000 amount based upon the wife’s capability of full-time work, her testimony regarding her hourly wage as a nurse and by taking into account a 40–hour work week. Because the court did not abuse its discretion in its calculation of imputed income, would not be disturbed.
The Appellate Division rejected the wife’s challenge to Supreme Court’s determination reducing her maintenance from the presumptive amount to a monthly amount of $450 for a period of three years. The amount and duration of a maintenance award are addressed to the sound discretion of the trial court and will not be disturbed provided that the statutory factors and the parties’ predivorce standard of living are considered. The court need not analyze and apply each and every factor set forth in the statute, but must provide a reasoned analysis of the factors it ultimately relies upon in awarding maintenance. Supreme Court found, and the record confirmed, that the wife was in good health and was capable of economic independence based on her work as a registered nurse and a yoga instructor. The court also considered that the husband paid most of the college expenses for the middle child, as well as medical costs for the middle and youngest children. The court’s decision provided a reasoned analysis for deviating from the presumptive maintenance amount and, therefore, the court’s determination was not disturbed .
The Appellate Division rejected the wife challenges to Supreme Court’s determination reducing the presumptive child support amount to be paid by the husband. The court’s decision reflected that it considered the husband’s contributions to the college expenses and medical costs of the children. Having reviewed the record in its entirety, its determination would not be disturbed.
The wife correctly contended that the reduced maintenance and child support awards should have been retroactively ordered. The matter was remitted for the purpose of determining the amount of retroactive maintenance and child support and the amount of credits, if any, to which the husband is entitled.
The wife took issue with Supreme Court’s determination awarding her 5% of the value of the husband’s business. The wife relied on her testimony that she performed tasks for the business and assisted with administrative and operational matters. The husband, however, offered proof to the contrary as to the wife’s direct contributions to his business. Presented with conflicting proof, the court did not credit the wife’s testimony, and no basis existed to disturb its credibility determination.. As to the wife’s indirect contributions, the court noted, and the evidence discloses, that the wife cared for the children and contributed to the overall household income while the husband worked. Upon review of the record it held that the wife should have been awarded 15% of the value of the husband’s business
In light of the determination on appeal that the order was not entered upon respondent’s default, respondent’s failure to move to vacate the default finding did not preclude his appeal.
In the Matter of David VV., v. Alison., --- N.Y.S.3d ----, 2022 WL 959420, 2022 N.Y. Slip Op. 02165 (3d Dept.,2022) Petitioner and the attorney for the child argued that the appeal in this termination of parental rights proceeding had to be dismissed because the challenged order was entered upon respondent’s default. The Appellate Division disagreed and found that under the circumstances Family Court abused its discretion in holding respondent to be in default. The order was reversed and the matter remitted for a new fact-finding hearing on the issue of abandonment. In light of the determination that the order was not entered upon respondent’s default, respondent’s failure to move to vacate the default finding did not preclude his appeal.
A modification of maintenance pursuant to Domestic Relations Law § 236(B)(9)(b)(1) is generally not appropriate where one spouse has the present ability to obtain higher paying employment, but brings about a reversal of financial condition by the spouse’s own actions or inactions.
In Hickman v Hickman, --- N.Y.S.3d ----, 2022 WL 1037788, 2022 N.Y. Slip Op. 02318 (3d Dept.,2022) Plaintiff ( wife) and defendant (husband) were divorced in 2012. The parties’ divorce judgment required the husband to pay the wife spousal maintenance of $50,000 per year (or approximately $4,167 per month) for five years, as well as child support for their two children. In May 2020, after the maintenance obligation had terminated, the wife moved to modify the maintenance provision of the divorce judgment pursuant to Domestic Relations Law § 236(B)(9)(b)(1), seeking spousal maintenance of $7,000 per month. Supreme Court denied the wife’s motion. The Appellate Division affirmed. It pointed out that Domestic Relations Law § 236(B)(9)(b)(1) provides that a court in a matrimonial action may modify a maintenance award of any prior order or judgment made after trial “upon a showing of the payee’s inability to be self-supporting or upon a showing of a substantial change in circumstance, including financial hardship.” The party seeking the modification of a maintenance award has the burden of establishing the existence of the change in circumstance that warrants the modification”. Determining whether a substantial change has occurred and the extent of relief occasioned by such a change are matters addressed to the discretion of the trial court, with each case turning on its particular facts. A modification is generally not appropriate where one spouse has the present ability to obtain higher paying employment, but brings about a reversal of financial condition by the spouse’s own actions or inactions. A hearing is not required on a maintenance modification application unless the movant makes a prima facie showing of entitlement to a modification and demonstrates the existence of genuine issues of fact regarding a substantial change in circumstance. In the divorce judgment and the decision upon which it was based, Supreme Court imputed annual income of $55,000 to the wife. The court acknowledged that she had ceased full-time employment to be a mother and homemaker for 14 years during the marriage. However, the court noted, based on her education and prior work experience, that she was qualified and capable of obtaining employment and, although it might take some time, she could work toward self-sufficiency during the five-year duration of ordered maintenance payments. The court also noted that the wife had been aware of the divorce proceedings and her need to support herself for several years at that time, but had not yet taken steps leading to her return to self-sufficiency, had not engaged in serious efforts to find employment, and appeared to lack interest in returning to the workforce. Accepting as true the wife’s assertions in her application for modification, she applied for more than 100 jobs over 18 months, finally being offered one position with an annual salary of $40,000. After 15 months in that position, which had work hours from 9:00 a.m. to 5:00 p.m., she quit her job because she felt that she needed more flexibility to transport her children, then both teenagers, to after school activities. The wife then purchased a nonmedical home care business, despite having no experience in that field. The business experienced net losses each year, and she lacked capital to advertise and market its services. The wife avers that she unsuccessfully continued to look for jobs and tried to sell the business. Due to the expenses of the marital residence, the wife agreed to sell it earlier than required by the divorce judgment. Using some of the money from that sale along with a large mortgage, she purchased a spacious, expensive house, just five months before the maintenance payments were scheduled to cease.
The Appellate Division held that although the record demonstrated that the husband’s income increased significantly after the divorce, that is not determinative and does not necessarily present a substantial change in circumstance warranting a modification to increase maintenance. The wife was not required to show a change in circumstance that was unexpected, but she was required to establish a substantial change in circumstance or an inability to support herself. The record supported the conclusion that the wife’s behavior was at least partially responsible for her current financial situation, considering that she voluntarily left her job, purchased a house beyond her means and, contrary to advice from professionals, purchased a business that resulted in no profit. Despite some proof of her 18–month job search before gaining employment, the wife did not demonstrate that she was unable to find employment after quitting that job or discovering that her business was unprofitable. As the wife failed to make a prima facie showing of an inability to be self-supporting or a substantial change in circumstance that would warrant reinstating spousal maintenance, she was not entitled to a hearing on her application.
Although only 1 month passed between the custody order and the father’s modification petition, the mother’s attempted suicide and her being pushed down a flight of stairs by her boyfriend while the child was in her care, reflected a change in circumstances that warranted a review of the custodial arrangement
In Matter of Devin W, --- N.Y.S.3d ----, 2022 WL 1037792, 2022 N.Y. Slip Op. 02316 (3d Dept.,2022) Petitioner ( father) and respondent ( mother) were the parents of a daughter (born in 2016). Pursuant to an order entered upon consent in January 2019, the parties were awarded joint custody of the child, with the child being placed with the mother during the week and with the father from 6:00 p.m. on Friday to 7:00 p.m. on Monday. In February 2019, the father filed a modification petition seeking sole physical custody of the child due to the mother’s mental and physical health issues. Family Court issued a December 2019 decision finding that the mother’s January 2019 suicide attempt and her involvement in a domestic violence incident constituted a change in circumstances that warranted revisiting the custodial arrangement. The court further found that the best interests of the child lie in awarding the father physical placement of the child and the mother supervised visitation. Family Court contemporaneously issued an order awarding the parties joint legal custody of the child, the father primary physical placement and the mother supervised visitation on alternating weekends, a week in the summer and as agreed by the parties. The Appellate Division affirmed. It held that although little time had passed between the stipulation that led to the January 2019 order and the father’s February 2019 modification petition, the mother’s own testimony reflected that, shortly after the parties had agreed to the terms of that order, she attempted suicide and was pushed down a flight of stairs by her then-boyfriend during a domestic dispute that occurred while the child was in her care, those developments reflected a change in circumstances that warranted a review of what custodial arrangement would be in the child’s best interests. Although the inquiry into whether a “change in circumstances has occurred should be limited to occurrences since the date of the prior custody order, a best interests inquiry is broader and may include other facts that give the court a view of the totality of the circumstances and family dynamics, including proof that relates to either party’s fitness as a parent”
March 30, 2022
Appellate Division, First Department
Confidential mental health records may only be disclosed upon a finding that the interests of justice significantly outweigh the need for confidentiality. Under Family Court Act § 1038(d) the court must conduct a balancing test to weigh the need of the moving party for the discovery against any potential harm to the child
In Matter of Briany T., 202 A.D.3d 408, 161 N.Y.S.3d 79, 2022 N.Y. Slip Op. 00629 (1st Dept.,2022) Respondent sought disclosure of records relating to the prior and current mental health treatment of the 13–year–old child who reported that he sexually abused her, claiming that those records are material and necessary to his defense that the child is fabricating her allegations. The Appellate Division held that confidential mental health records may only be disclosed upon a finding by a court that “the interests of justice significantly outweigh the need for confidentiality” (Mental Hygiene Law § 33.13[c][1]). Pursuant to Family Court Act § 1038(d), the court must conduct a balancing test to weigh “the need of the [moving] party for the discovery to assist in the preparation of the case” against “any potential harm to the child [arising] from the discovery”. It held that although a close question, given respondent’s need to prepare his defense, his right to impeach the child’s credibility as she was likely to be a witness, and the child’s diminished interest in the confidentiality of older records from an institution that was not currently providing services to her, an in camera review of the NYP records was warranted (Matter of Dean T., Jr., 117 A.D.3d at 492, 985 N.Y.S.2d 518). It remanded the matter to the Family Court to review the child’s mental health records from NYP in camera to determine whether there was any information in those records that tended to support respondent’s defense that the child had previously made a false allegation when she was approximately four years old and had underlying mental health issues relating to the earlier disclosure.
Default judgment of divorce vacated where husband’s absence was likely attributable to his mental health and there should have been an inquiry into whether a guardian ad litem was necessary.
In Richard v Buck, --- N.Y.S.3d ----, 2022 WL 903740 (1st Dept.,2022) the Appellate Division reversed a Judgment that was entered in this divorce proceeding after the husband, pro se, failed to appear for an inquest. At the time of the inquest, both the wife and supreme court were aware that the husband had been diagnosed with a significant mental health condition, which resulted in episodes during which the husband was demonstrably unable to care for himself or otherwise protect his interests. At the conclusion of the inquest, the court explicitly acknowledged that the husband’s absence was likely attributable to his mental health. Thus, before entering judgment upon the husband’s default, there should have been an inquiry into whether a guardian ad litem was necessary. Because there was no inquiry, the judgment was vacated and the matter remanded for further proceedings, including, if necessary, an inquiry into the husband’s current capacity.
Appellate Division, Second Department
Pendente lite maintenance properly denied without prejudice here wife failed to submit statement of net worth
In Yin v. Qiao, --- N.Y.S.3d ----, 2022 WL 791392 (Mem), 2022 N.Y. Slip Op. 01839 (2d Dept.,2022) the Appellate Division held, among other things, that the Supreme Court properly denied that branch of plaintiff’s motion which was for an award of pendente lite maintenance, without prejudice, because she failed to attach a statement of net worth to her motion papers (see 22 NYCRR 202.16[k][2]; Barton v. Barton, 137 A.D.3d 723, 724, 27 N.Y.S.3d 572).
Supreme Court improvidently exercised its discretion in awarding the defendant husband, who was the monied spouse, attorney’s fees where the plaintiff’s motion was not so lacking in merit as to justify such an award. Award of prospective sanctions on the plaintiff in future litigation improvident exercise of discretion.
In Assad v Assad, 200 A.D.3d 831, 161 N.Y.S.3d 92, 2021 N.Y. Slip Op. 06978 (2d Dept., 2021) the parties were divorced by judgment dated September 13, 2016, which incorporated, but did not merge, a stipulation of settlement of the parties dated January 29, 2016. Pursuant to the stipulation of settlement, the parties shared joint legal custody of their three children, with primary residential custody to the plaintiff and a parental access schedule for the defendant. The stipulation also provided that the plaintiff was prohibited from relocating with the children outside of New York City without prior written consent of the defendant, or court order. On June 16, 2020, the plaintiff moved, inter alia, to modify the stipulation of settlement to permit her to relocate with the children to Texas, or in the alternative, to upwardly modify the defendant’s child support obligation and award her sole custody of the children. The defendant cross-moved for an award of attorney’s fees. In an order entered January 4, 2021, the Supreme Court, inter alia, denied, without a hearing, those branches of the plaintiff’s motion, granted that branch of the defendant’s cross motion to the extent of awarding him attorney’s fees of $5,000, and, sua sponte, enjoined the plaintiff, absent an emergency, from instituting further actions or filing motions without first obtaining written leave of the court, and directed that if the plaintiff attempted to re-litigate the same issues in the future, sanctions would be imposed against her for the defendant’s full costs and fees of defending the action.
The Appellate Division held that Supreme Court properly denied the plaintiff’s motion to permit her to relocate with the children to Texas or to award her sole custody of the children. However, the Supreme Court erred in summarily denying the plaintiff’s motion which was to modify the stipulation of settlement to upwardly modify the defendant’s child support obligation. Since the parties did not opt out of the provisions of Domestic Relations Law § 236(B)(9)(b)(2)(ii), the plaintiff was not obligated to demonstrate a substantial change in circumstances where, as here, she demonstrated that three years had passed since the last order concerning child support was entered Moreover, the plaintiff also demonstrated that the defendant’s gross income had increased by 15% or more during that time.
The Appellate Division also held that a court has the authority to award an attorney’s fee in custody proceedings when warranted under the circumstances of the case (see Domestic Relations Law § 237[b]). Here, the Supreme Court improvidently exercised its discretion in awarding the defendant attorney’s fees. The plaintiff’s motion did not attempt to re-litigate previously waived claims, and it represented the plaintiff’s first request for permission to relocate, sole custody of the children, and an upward modification of the defendant’s child support obligation since the judgment of divorce was entered in 2016. Moreover, the defendant was the monied party and the plaintiff’s motion “was not so lacking in merit as to justify such an award.”
For similar reasons, the Supreme Court improvidently exercised its discretion in enjoining the plaintiff, absent an emergency, from instituting further actions or filing motions without first obtaining written leave of the court and in imposing prospective sanctions on the plaintiff in future litigation.
Both voluntary child support payments which were made prior to a pendente lite order and payments made pursuant to a pendente lite order may be credited toward a party’s retroactive child support.
In Ford v Ford, 200 A.D.3d 854, 161 N.Y.S.3d 103, 2021 N.Y. Slip Op. 06988
(2d Dept., 2021) the parties were married in 1998, and had three children. The plaintiff commenced an action for a divorce on May 4, 2012. On March 6, 2013, the plaintiff moved for pendente lite relief. In an amended order dated August 2, 2013, the Supreme Court directed the defendant, inter alia, to continue to pay to the plaintiff unallocated maintenance and child support and to pay 100% of various carrying charges on the marital residence, which was in the plaintiff’s exclusive use and occupancy in accordance with a stipulation of the parties and awarded the plaintiff interim counsel fees of $3,000. On December 15, 2016, the parties entered into a stipulation of settlement in which they agreed, inter alia, to the defendant’s prospective child support obligation. The parties agreed to submit to the court for determination the issues of retroactive child support and additional counsel fees on behalf of the plaintiff. A judgment of divorce was entered April 26, 2017. The Appellate Division held, inter alia, that a party is entitled to a credit for any amount of temporary child support already paid as well as for carrying charges on the marital home. Both voluntary child support payments which were made prior to a pendente lite order and payments made pursuant to a pendente lite order may be credited toward a party’s retroactive child support. It noted that payments made by the defendant toward counsel fees on behalf of the children do not constitute basic child support.
Petitioner deprived of her statutory right to counsel where Family Court failed to conduct a searching inquiry of the petitioner to ensure that her waiver of her right to counsel was knowing, intelligent, and voluntary. Court’s determination, after brief questioning of the petitioner, did not constitute a hearing to determine subject matter jurisdiction.
In Matter of Minor v Birkenmeyer, 200 A.D.3d 1044, 161 N.Y.S.3d 209, 2021 N.Y. Slip Op. 07546 (2d Dept.,2021) the petitioner commenced a family offense proceeding against the respondent, with whom she alleged she had resided in the past. At the initial court appearance, the Family Court advised the petitioner that she had a right to counsel, that “[h]aving an attorney can be helpful” but that having an attorney “is not something that we force people to do.” The court advised the petitioner that it could give her time to consult with or hire an attorney or that the petitioner could ask the court to determine if the petitioner would be eligible to have an attorney assigned to represent her at no cost. The court also informed the petitioner that she also had the right to represent herself and inquired if, for purposes of the proceedings that day, she wanted to be represented by counsel. The petitioner responded, “[f]or today’s purposes no I don’t think so.” The court then asked the petitioner several questions about the petitioner’s relationship with the respondent. Thereafter, in an order dated January 13, 2021, the Family Court dismissed, with prejudice, the proceeding for lack of subject matter jurisdiction. The Appellate Division reversed. It held that a party in a proceeding pursuant to Family Court Act article 8 has the right to be represented by counsel. Family Court failed to conduct a searching inquiry of the petitioner to ensure that her waiver of her right to counsel was knowing, intelligent, and voluntary. Thus, the petitioner was deprived of her statutory right to counsel. It also held that the Family Court also should have conducted a hearing prior to determining that it lacked subject matter jurisdiction on the ground that the parties did not have an intimate relationship within the meaning of Family Court Act § 812(1)(e). The court’s determination, after brief questioning of the petitioner, without affording the petitioner the opportunity to testify or proffer any evidence as to whether the relationship she had with the respondent constituted an intimate relationship within the meaning of Family Court Act § 812(1)(e), did not constitute a hearing. It remitted the matter to the Family Court for a hearing to determine whether the Family Court had subject matter jurisdiction and for further proceeding, if warranted. It directed that upon remittitur, the court must conduct an appropriate inquiry as to whether the petitioner wishes to waive her right to counsel.
Appellate Division, Third Department
Parents retain the right to make certain medical decisions for their children in foster care.Appellate Division establishes standard for determining if children in foster care can have covid-19 vaccine despite objection by parent.
In Matter of Athena Y., 201 A.D.3d 113, 161 N.Y.S.3d 335, 2021 N.Y. Slip Op. 06908 (3d Dept.,2021) Petitioner commenced a proceeding in August 2020 alleging that respondent neglected her four children. In February 2021, petitioner effected an emergency removal of the children and placed them in foster care. In response to respondent’s motion for their return, Family Court held a hearing and denied that motion. Several months later, the attorney for the children (AFC) informed Family Court that the two oldest children, then 13 and 15 years old, wished to receive the COVID–19 vaccine, but respondent did not consent. In response to the court’s request for the parties’ positions, the AFC, petitioner and the children’s father all submitted letters in support of allowing the children to be vaccinated, while respondent opposed the vaccination. After reviewing the parties’ submissions, Family Court held that the children had the right to decide whether to receive the COVID–19 vaccine and ordered that they shall be given the vaccine if they still consent.
The Appellate Division reversed. It held that parents have a fundamental right to raise their children in the manner they choose, subject to the state’s ability to intervene to protect children in narrow circumstances. By statute, the right to make health care decisions for oneself belongs to anyone at least 18 years old. Under common law, parents generally have the right to make health care decisions for their minor children, though some exceptions exist, such as for emergency situations. Even when the state intrudes on a family by obtaining a temporary order of custody due to abuse or neglect, “parents retain the right to make certain medical decisions for their children in foster care,” up until the moment that parental rights are terminated. Family Court determined that the situation is “similar to reproductive health services for children in foster care,” as governed by regulations permitting children ages 12 and older to make their own decisions after being informed about such relevant services (see 18 NYCRR 463.1, 463.2[b]). The Appellate Division held that Respondent was entitled to a hearing before Family Court issued an order authorizing vaccination of the children. Due process generally requires notice and an opportunity to be heard before medical treatment is imposed upon a patient by court order (see Matter of Fosmire v. Nicoleau, 75 N.Y.2d 218, 224, [1990]), but the opportunity to be heard does not always require a formal procedure. Family Court gave the parties notice that it was considering the AFC’s request and directed the parties to submit their positions to the court in writing, thus providing some limited opportunity to be heard. Having reviewed those submissions, the court rendered its decision. The court made specific findings that the subject children “have been fully informed regarding COVID–19 and the vaccine” and that they “have the capacity to consent.” These factual findings were made without evidence and based solely on hearsay, through unsworn letters containing representations by counsel. This did not constitute a sufficient basis to support these findings. At such a hearing, the court must focus on whether respondent’s refusal to authorize vaccination constitutes “an acceptable course of medical treatment for [her] child[ren] in light of all the surrounding circumstances,” while heeding the Court of Appeals’ cautionary point that courts cannot “assume the role of a surrogate parent” (Matter of Hofbauer, 47 N.Y.2d at 656). As the Office of Children and Family Services’ guidance documents prohibit local agencies from administering a COVID–19 vaccine if the child refuses to consent, the hearing must address whether the subject children have been fully informed about COVID–19 and the vaccine and whether they have the capacity to consent. After the hearing, the court must carefully balance the risks and benefits of the potential vaccination to decide whether to authorize it for the subject children). It remitted for Family Court to promptly conduct a hearing on the issue, applying this standard.
Where all parties were in agreement that there was no concern over equitable estoppel and that a genetic marker test as to respondent should be ordered Family Court exceeded its authority by ordering that another party should be named respondent in this proceeding. A court cannot, on its own initiative, add or direct the addition of a party.
In the Matter of Schenectady County Department of Social Services on Behalf of Desiree CC v. Noah DD.,200 A.D.3d 1509, 161 N.Y.S.3d 442, 2021 N.Y. Slip Op. 07587 (3d Dept.,2022) nine months prior to the child’s January 2017 birth, Petitioner was in a sexual relationship with respondent, and the two resided together in North Carolina. She entered into a relationship with Rory EE., a resident of New York, in November 2017, when the child was 10 months old. About four months later, petitioner filed an application on behalf of the mother against respondent seeking an order of filiation. By January 2019, after the child had just turned two years old, all parties were in agreement that there was no concern over equitable estoppel in this matter and that a genetic marker test as to respondent should be ordered (see generally Family Ct Act § 532[a]). Family Court nonetheless determined that a hearing and written findings as to equitable estoppel were required before a test could be ordered and it subsequently added Rory EE. as a named respondent in this proceeding. The Appellate Division held Family Court exceeded its authority by adding him. Although a court may raise the absence of a necessary party at any stage of the proceedings upon its own motion a court cannot, on its own initiative, add or direct the addition of a party. Rather, the court may only summon a person who should be joined, if the court has jurisdiction over the person; if jurisdiction over the person can be obtained only by his or her consent or appearance, the court must determine whether the proceeding should be permitted to proceed in that person’s absence. Family Court plainly did not have the authority to make Rory EE. a named party to this proceeding. . Family Court also failed to obtain jurisdiction over Rory EE. No petition or summons, or supplemental summons, was filed against or served upon him (see Family Ct Act §§ 522–525), no party moved to add him as a necessary party and there was no stipulation to that end (see CPLR 1003), and he had not appeared before Family Court or otherwise consented to the court’s jurisdiction (see CPLR 320[b]). It reversed and remitted for further proceedings, “at which time the parties remain free to move for or stipulate to Rory EE. being added as a necessary party, or not, and, absent such a motion or stipulation, and if his joinder is deemed to be necessary, the court is limited to directing that reasonable efforts be made to join him as a party or considering whether this matter should proceed in his absence (see CPLR 1001)”.
Enforcement of a post-adoption contact agreement will only be ordered if it is determined to be in the child’s best interests
In Matter of Jennifer JJ., v. Jessica JJ., 2022 WL 867119 (3d Dept.,2022) the Appellate Division pointed out that pursuant to Domestic Relations Law § 112–b (4), birth parents and adoptive parents may enter into a legally enforceable agreement regarding post-adoption contact that may thereafter be enforced by filing a petition in Family Court. It held that enforcement of a post-adoption contact agreement will only be ordered if it is determined to be in the child’s best interests. The hearing court’s determination of best interests will only be disturbed if it lacks a sound and substantial basis in the record.
A former judge is automatically prohibited, as a matter of law, from acting as an attorney in any action, claim, matter, motion or proceeding, which has been before him or her in his or her official character.
In Corey O v Angela P, 2022 WL 867063 (3d Dept.,2022) the Appellate Division affirmed an order which awarded the parties joint legal custody of the children with the father having primary physical custody and the mother having parenting time. The Appellate Division observed that the attorney for the children ( AFC) was previously a judge who, in 2014, decided a custody case involving the mother her. It noted that a former judge is automatically prohibited, as a matter of law, from acting as an attorney “in any action, claim, matter, motion or proceeding, which has been before him [or her] in his [or her] official character” (Judiciary Law § 17). Here, the custody case neither involved the subject children nor the subject children’s father. It was an entirely separate proceeding involving different children and a different father. The mother did not allege any factual ties between these underlying proceedings and the prior custody case. The only common tie between them was that the mother was a litigant. Only the mother, and not her present custody claim over the subject children, had been before the AFC during his tenure as a judge. Although not explicitly clear from the record, the mother’s fitness as the custodial parent presumably was an issue presented in her prior custody case. It was also an issue present here. Equating a discrete issue with a “matter” provided in Judiciary Law § 17, however, impermissibly stretches the meaning of “matter” such that it does not comport with “action, claim, ... motion or proceeding” – the other terms in Judiciary Law § 17. Moreover, in view of the jurisdiction of Family Court and the particular cases such court hears, a party’s fitness as a custodial parent frequently arises as an issue whether directly or indirectly. By giving an expansive view to “matter,” the AFC, a former Family Court judge who had presided over countless proceedings in the past, would be disqualified from representing any party in any future case where another party in such case was previously before the AFC in one of those past proceedings, a result that would occur without regard to the nature of either the past proceeding or future case. It held that based on the circumstances of this case, neither a new hearing nor automatic disqualification of the AFC under Judiciary Law § 17 was required.
Appellate Division, Fourth Department
The costs of providing suitable housing, clothing and food for child do not qualify as extraordinary expenses so as to justify a deviation from the presumptive child support amount. Entertainment, including sports, is not an extraordinary visitation expense for purposes of calculating child support.
In Matter of Livingston County Support Collection Unit on behalf of Yusko v. Sansocie, --- N.Y.S.3d ----, 2022 WL 819070, 2022 N.Y. Slip Op. 01914 (4th Dept., 2022) there was a shared custody arrangement in which the father was the primary custodial parent. The Support Magistrate determined that, because the children spent approximately 50% of the parenting time with the mother and because the mother incurred expenses for the children’s “food, clothing, shelter, utilities, cell phones, transportation[,] and extracurricular activities” during the times they were with her, she should be granted a variance from the presumptive support obligation. That was error. Although “extraordinary expenses incurred by the non-custodial parent in exercising visitation” with a child not on public assistance may support a finding that the presumptive support obligation is unjust or inappropriate (Family Ct Act § 413 [1] [f] [9] [I]), “[t]he costs of providing suitable housing, clothing and food for [a child] during custodial periods do not qualify as extraordinary expenses so as to justify a deviation from the presumptive amount”, “nor is the cost of entertainment, including sports, an extraordinary visitation expense for purposes of calculating child support”. The Appellate Division concluded that the Support Magistrate’s determination “was merely another way of [improperly] applying the proportional offset method” which has been rejected. It remitted the matter to Family Court for a determination of respondent’s support obligation upon an adequate record.
Family Court
Family Court holds that attorneys can recoup fees that are expended while attempting to recover counsel fees in family offense proceedings
In Matter of a Custody/Visitation Proceeding Article 8 of the Family Court Act M. M., v. A. A., .74 Misc.3d 202 (Fam Ct, 2021) Respondent was a physician who earned upwards of $300,000 a year. Petitioner was a stay-at-home mother who does not have an independent source of income. Petitioner commenced a family offense proceeding which resulted in a stipulated final order of protection. Petitioner’s counsel brought a motion for legal fees in excess of $40,000 dollars pursuant to Family Court Act § 842 (a) and (f). The Court granted the motion in part. It noted that Family Court Act § 842(f) states that if an order of protection is either obtained or enforced, the wrongdoer may be required “to pay the reasonable counsel fees and disbursements involved in obtaining or enforcing the order of the person who is protected by such order.” See Family Court Act § 842(f). The Family Court Act is silent as to whether attorneys can recoup additional fees that are expended while attempting to recover underlying counsel fees, and there is a very limited body of case law which addresses “fees for fees” in family offense proceedings. However ,the Court of Appeals has held that they are authorized. (O'Shea v O'Shea, 93 NY2d 187, 193 (1999)). It explained that the Parties’ respective financial positions are a threshold consideration in determining whether to award attorney’s fees. Other factors to be considered are “the nature and extent of the services rendered, the complexity of the issues involved, and counsel’s experience, ability, and reputation.” Thereafter, the court must determine the “reasonable” value of the services provided through an evidentiary hearing. The court can consider the same factors used in determining whether legal fees should be awarded when assessing their reasonable value and total amount to be paid. In utilizing its discretion regarding the total amount of legal fees to be paid, the court should assess facts, including the parties’ finances, relative to each other. For instance, in a fee hearing involving a more monied Respondent father, the same factors which support an award of counsel fees also militate against granting the mother’s request that respondent be responsible for her entire fee.
March 16, 2022
Residence means living in a particular locality, even if a person does not intend to make that place a fixed and permanent home, i.e., a domicile. A person’s ‘residence’ entails something more than temporary or physical presence, with some degree of permanence and an intention to remain. To consider a place a residence, he must stay there for some length of time and have the bona fide intent to retain the place as a residence with at least some degree of permanency. Sheltering in place in a seasonal home did not create a sufficient degree of permanence to establish residency at that location
In Matter of Fisch v Davidson, --- N.Y.S.3d ----, 2022 WL 697403, 2022 N.Y. Slip Op. 01442 (2d Dept.,2022) the parties to this divorce action primarily resided in New York County, while maintaining a seasonal second home in Suffolk County. In March 2020, when the COVID-19 pandemic first reached New York City, the defendant retreated to the Suffolk County residence along with her pregnant and immunocompromised daughter and began spending more time there in order to assist the daughter during the pregnancy and after the child’s birth. In August 2020, the plaintiff commenced this action for a divorce in Suffolk County, on the ground that the parties were residents of Suffolk County. The defendant moved pursuant to CPLR 510 and 511 for a change of venue, and the Supreme Court denied the motion. The Supreme Court denied the defendant’s motion. The court concluded, inter alia, that Suffolk County was a proper venue pursuant to CPLR 503(a) and 510(1) because the defendant was a resident of Suffolk County. The Appellate Division reversed. It held that under the circumstances of this case sheltering in place in a seasonal home did not create a sufficient degree of permanence to establish residency at that location. It held that because the parties’ stays in Suffolk County were only seasonal and temporary neither of them were residents of Suffolk County at the time of the commencement of the action. Because Suffolk County was not a proper venue, the Supreme Court should have granted the defendant’s motion pursuant to CPLR 510 and 511 to change the venue of the action from Suffolk County to New York County.
In its analysis the Appellate Division observed that CPLR 510(1) provides that the court, upon motion, may change the place of trial of an action where the county designated for that purpose is not a proper county. CPLR 503(a) provides that except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced. The leading Court of Appeals case on the issue of the meaning of “reside” is Yaniveth R. v. LTD Realty Co. (27 NY3d 186). In that case, the Court of Appeals concluded that a child who did not live in the subject apartment but spent approximately 50 hours per week there with a caregiver did not “reside” in the apartment In doing so, the Court of Appeals reviewed, among other things, venue cases interpreting CPLR 503(a) and its predecessor, and synthesized from them the following definition of “residence”: “[r]esidence means living in a particular locality, even if a person does not intend to make that place a fixed and permanent home, i.e., a domicile…. [A] person’s ‘residence’ entails something more than temporary or physical presence, with some degree of permanence and [an] intention to remain. Thus, [a]lthough it is true that a person may have more than one residence[,]…to consider a place as such, he [or she] must stay there for some length of time and have the bona fide intent to retain the place as a residence with at least some degree of permanency”.
This Court has held that “[r]esidence requires more stability than a brief sojourn for business, social or recreational activities.” Thus, in Doe v. Hall (36 AD3d 651), the Court held that the affidavit of the plaintiff’s son, who stated that at the time of the commencement of the action the plaintiff maintained a residence at her son’s apartment in Queens County and would “reside” there when she came back to Queens County during holidays and other times, was insufficient to establish that the plaintiff resided in Queens County at the time the action was commenced. Similarly, in Stern v. Epstein (29 AD3d 778), this Court held that the plaintiffs’ use of their medical office in Kings County to sleep over for convenience a couple of nights a week did not render them residents of Kings County for venue purposes. And in Katz v. Siroty (62 AD2d 1011), the plaintiff, whose primary residence was in Scarsdale, retained the exclusive use of a bedroom in his sister and brother-in-law’s home in Brooklyn, where he slept between 50 and 100 times per year when he visited his Manhattan law office or when he had to see people in localities such as Patchogue, Long Island. This Court concluded that the plaintiff’s “occasional use of a bedroom in his sister and brother-in-law’s home when he transacts business in the New York metropolitan area does not support his contention that he has a second residence in Brooklyn”.
This case presented two issues relating to the parties’ residence: (1) whether the parties’ seasonal use of the Southampton house on weekends prior to March 2020 made them residents of Suffolk County; and (2) whether the defendant’s retreat to the Southampton house at the outset of the COVID-19 pandemic made her a resident of Suffolk County. The Appellate Division concluded that neither of these things made the parties residents of Suffolk County. The defendant clearly established that the parties primarily resided in New York County. The defendant submitted, among other things, copies of: the parties’ income tax returns, listing their address in New York County as their residence and reflecting their payment of New York City income taxes; the defendant’s voter registration showing that she was registered to vote in New York County; the defendant’s driver license listing her address in New York County; motor vehicle records showing that the parties’ cars were all registered in New York City or were in the process of having the registration transferred from New Jersey to New York City; an email from the plaintiff to the parties’ art insurance carrier stating that the parties did not have any intention of adding any art to the Southampton house; and bank statements listing the Beresford apartment and the plaintiff’s Manhattan office as the parties’ addresses.
Although a person may have more than one residence, the defendant demonstrated that neither party resided in Suffolk County at the time of the commencement of the action. With respect to the parties’ use of the Southampton house prior to 2020, the Appellate Division observed that a highly instructive case was Daley v. Daley (257 AD2d 593) which held that a seasonal residence was not sufficient to establish a party’s residency for venue purposes, at least where the party frequently resided in another location during the workweek. Here, in her affidavit submitted in support of her motion, the defendant averred that prior to 2020, the Southampton house was only used by the parties on weekends in the summertime, with limited exceptions, and that the only time the parties stayed in the Southampton house outside of the summer season was a few days over the Christmas holiday break in 2018. The plaintiff’s affirmation submitted in opposition to the motion does not contain anything disputing these averments. Since it was undisputed that, prior to 2020, the parties only stayed in the Southampton house on weekends in the summer, with limited exceptions, contrary to the plaintiff’s contention, neither party resided in Suffolk County at any time prior to 2020.
Contrary to the Supreme Court’s conclusion, the time the defendant spent in the Southampton house in 2020 during the COVID-19 pandemic was not enough to make her a resident of Suffolk County. Although the defendant retreated to the Southampton house in March 2020, it was undisputed that the defendant planned only to stay there temporarily to assist her immunocompromised daughter and newborn grandchild when the COVID-19 pandemic was at its zenith in New York City. Under the circumstances of this case, the defendant did not have the bona fide intent to retain [Suffolk County] as a residence with at least some degree of permanency (See Yaniveth R. v. LTD Realty Co., 27 NY3d at 193 ; Morreale v. 105 Page Homeowners Assn., Inc., 64 AD3d at 690; see also Ray-Ollenu v. Kaufman Mgt. Co., 107 AD3d 476; Sibrizzi v. Mount Tom Day School, 155 AD2d at 338).
A party seeking a downward modification of an unallocated order of child support based on the emancipation of one of the children has the burden of proving that the amount of unallocated child support is excessive based on the needs of the remaining children.
In Matter of Gerety v Gerety, --- N.Y.S.3d ----, 2022 WL 697433, 2022 N.Y. Slip Op. 01455 (2d Dept.,2022) the Appellate Division held that the party seeking modification of an order of child support has the burden of establishing the existence of a substantial change in circumstances warranting the modification. In determining whether there has been a change in circumstances warranting modification of a parent’s child support obligation, the court must consider several factors, including the increased needs of the children, the increased cost of living insofar as it results in greater expenses for the children, a loss of income or assets by a parent or a substantial improvement in the financial condition of a parent, and the current and prior lifestyles of the children. A substantial change in circumstances may be measured by comparing the parties’ financial situation at the time of the application for modification with that existing at the time the order sought to be modified was issued. In addition, a party seeking a downward modification of an unallocated order of child support based on the emancipation of one of the children has the burden of proving that the amount of unallocated child support is excessive based on the needs of the remaining children.
Not an abuse of discretion to refuse to appoint an AFC where child was less than one year old at the time and would have been unable to express his wishes to an AFC
In Matter of Santana v Barnes, --- N.Y.S.3d ----, 2022 WL 731173 (Mem), 2022 N.Y. Slip Op. 01634 (4th Dept., 2022) a custody and visitation proceeding the Appellate Division rejected the mother’s contention that the court erred in failing to appoint an attorney for the child (AFC). The determination whether to appoint an AFC in a custody and visitation proceeding is discretionary. Although a court may appoint an AFC on its own motion it held that, given that the child was less than one year old at the time and thus would have been unable to express his wishes to an AFC, the court did not abuse its discretion in not appointing an AFC.
March 9, 2022
Revised Forms Released
Revised Forms for Use in Matrimonial Actions in Supreme Court were adopted effective March 1, 2022. These revisions reflect the required statutory adjustment on March 1, 2022 of the combined income cap under the Child Support Standards Act from $154,000 to $163,000, and of the income cap of the maintenance payor under the Maintenance Guidelines Act from $192,000 to $203,000. Both of these adjustments are based on increases in the Consumer Price Index for all urban consumers (CPI-U) published by the United States Department of Labor. In addition, the revised forms reflect the increases as of March 1, 2022 in the Self Support Reserve from $17,388 to $18,346.50 and in the federal Poverty Level Income for a single person from $12,880 to $13,590.
Uncontested Divorce Forms were revised March 1, 2022 reflecting these changes
The uncontested divorce packet and the following forms in uncontested divorce packet were revised: UD-8(2) Maintenance Guidelines Worksheet; UD -8(3) Child Support Worksheet; UD -10 Findings of Fact And Conclusions Of Law: UD -11 Judgment of Divorce; UD -13 Uncontested Matrimonial Request For Judicial Intervention
Worksheets for both Contested and Uncontested Divorces were revised March 1, 2022 reflecting these changes
The following contested divorce worksheets were revised: Temporary Maintenance Guidelines worksheet (for divorces started on or after 10/25/15); Post-Divorce Maintenance/Child Support Worksheet
Amendments to Domestic Relations Law §240-d (5) and Family Court Act § 413-b
Domestic Relations Law §240-d (5) and Family Court Act § 413-b which were enacted in 2021 (Laws of 2021, Ch.437) were amended to clarify that an order of support for an adult with developmental disabilities is not applicable to services under section 111-g of the social services law. Subdivision 6 was added to provide that a court's finding concerning a person's disability status is not binding on the state, a local government, or the person, for any other purpose, including whether the person is eligible for services from the state office for people with developmental disabilities. Laws of 2022, Ch 110, approved February 24, 2022, effective October 8, 2021
Subdivision 5 was amended and a new subdivision 6 was added to read as follows:
5. Except where inconsistent with this section, all provisions of this
article relating to orders of child support shall apply to all orders of
support for adults with developmental disabilities; provided, however,
that such orders shall not be eligible for services pursuant to section
one hundred eleven-g of the social services law.
6. A determination made pursuant to this section that the person is or
is not developmentally disabled, as defined in subdivision twenty-two of
section 1.03 of the mental hygiene law, shall not be binding on the
state, a local government or the person for any other purpose, including
determinations of eligibility for services authorized by the office for
people with developmental disabilities. (new matter in bold)
Appellate Division, First Department
Although father’s objections to orders of the Support Magistrate were untimely and Appellate Division exercised its discretion to entertain the appeal to the extent it implicated the Family Court’s subject matter jurisdiction
In Matter of Deborah K v Richard K, --- N.Y.S.3d ----, 2022 WL 618996 (Mem), 2022 N.Y. Slip Op. 01391(1st Dept.,2022) the Appellate Division found that the father’s objections to the amended orders of the Support Magistrate were untimely (Family Court Act § 439[e]), and that he failed to proffer a reasonable excuse for the delay. Nevertheless, it exercised its discretion to entertain this appeal (see Family Court Act § 1112), to the extent it implicated the Family Court’s subject matter jurisdiction to modify the parties’ stipulation of settlement agreement, dated February 26, 2013 (see Matter of Georgette D.W. v. Gary N.R., 134 A.D.3d 406, 406, 21 N.Y.S.3d 41 [1st Dept. 2015]). It observed that a stipulation of settlement which is incorporated but not merged into the parties’ judgment of divorce may be reformed only in a plenary action and that Family Court does not have jurisdiction to modify a separation agreement.
Appellate Division, Second Department
Service by email is not one of the permissible methods of service of papers upon a party who has not appeared by an attorney. Therefore, father’s contentions regarding the merits of his objections were not reviewable.
In Nizen v Jacobellis, --- N.Y.S.3d ----, 2022 WL 610030 (Mem), 2022 N.Y. Slip Op. 01299 (2d Dept.,2022) the father filled objections to an order dated January 19, 2021, asserting that the order failed to adequately credit him for payments he made toward the arrears. The father attempted to effectuate service of his objections upon the mother, who was not represented by counsel, via email. The mother did not file a rebuttal to the father’s objections. Family Court denied the father’s objections on the ground of improper service. The Appellate Division affirmed. It held that Family Court properly denied his objections on the ground of improper service. Family Court Act § 439(e) provides, in pertinent part, that a party filing objections shall serve a copy of such objections upon the opposing party, and that proof of service upon the opposing party shall be filed with the court at the time of filing of objections. Since Family Court Act § 439(e) does not set forth the permissible methods for service of objections, the provisions of the Civil Practice Law and Rules are applicable. Pursuant to CPLR 2103(b), papers to be served upon a party, which includes an “opposing party” as described in Family Court Act § 439(e), shall be served upon the party’s attorney (CPLR 2103[b]), and may be served by, inter alia, transmitting the papers to the attorney by email when the transmission by email is made “upon the party’s written consent” ( § 2103[b][7]). However, if a party has not appeared by an attorney, service shall be upon the party” (§ 2103[c]), and may be made by certain methods set forth in CPLR 2103(b), such as personal delivery (§ 2103[b][1]; [c]). Service by email is not one of the permissible methods of service of papers upon a party who has not appeared by an attorney. Since the father failed to serve his objections upon the mother in compliance with CPLR 2103(c), the father’s proof of service of the objections upon the mother was deficient. Therefore, the father failed to fulfill a condition precedent to filing timely written objections and, failed to exhaust the Family Court procedure for review of his objections. Consequently, the father’s contentions regarding the merits of his objections were not reviewable.
Appellate Division, Third Department
Based on the wife’s imputed income and the husband’s income, the presumptive postdivorce maintenance obligation was unjust and inappropriate where wife could support herself through her Social Security income and food stamps, her ownership of the marital residence, her support from family and friends and her ability to work. Property distribution will not be disturbed absent an abuse of discretion or failure to consider the requisite statutory factors under Domestic Relations Law § 236(B)(5)(d) .
In King v King, 2022 WL 547156 (3d Dept.,2022) Plaintiff (husband) and defendant ( wife) were married in 1977 and, in 1989, plaintiff moved out of the marital residence. In July 2016, the husband commenced this action for divorce based on irretrievable breakdown of the marriage. Supreme Court determined that the wife was not entitled to equitable distribution of the husband’s 401(k) and retirement plans and declined to impose any postdivorce maintenance. The Appellate Division affirmed.
The Appellate Division found that the testimony at trial established that the husband was 63 years old and in good health at the time of trial. At the time of trial, the husband was working as a sales supervisor earning $48,000 per year. For additional income, the husband was driving for Uber earning, on average, $250 per week, but he was not compensated for gas mileage or wear and tear on his vehicle. In 1985, the wife purchased property located in Feura Bush, Albany County. Three years later, the husband transferred his interest in the property to the wife. Since 1991, the husband lived with a woman and that they split household expenses. He indicated that he had credit card debt amounting to $2,600. He owed $500 in back taxes. At the time of trial, the wife was 63 years old, in good health and was residing in the marital residence. She had an Associate’s degree in secretarial science. Most of her work had been administrative. She was not employed at the time of trial, having retired, and was receiving $750 monthly through Social Security benefits. Her 2016 tax return indicated that she earned $6,878 in income. The wife could not explain why her earnings were low considering her employment history. Her resume indicated that she has various computer skills, which she had retained. The wife indicated that she had received insurance through Medicaid. She had a savings account, which was not reflected on her statement of net worth. which reflected varying balances in excess of $2,000, which the wife alleged was an error. The wife was unable to state who deposited the funds. “My supports.” The wife heavily relied on spousal support payments the husband had been ordered to make and received Supplemental Nutrition Assistance Program payments. The wife indicated that she had not applied for any jobs recently, but there was no reason that she cannot work in certain positions. The wife testified that, in approximately 2001, a family friend paid off the mortgage and now owned the residence but she was still listed on the deed. She stated that she had certain maintenance payments for the house and paid the homeowners’ insurance, but the owner took care of most expenses. Although she testified that she had not paid rent since 2005, her financial affidavit reflected rent or mortgage payments of $550. This same family friend assisted with the wife’s counsel fees. There was no evidence that she could not work, Supreme Court imputed income to the wife based on her administrative skill set and her ability to earn $10 per hour on a part-time basis. Based on the wife’s imputed income and the husband’s income, the court calculated the presumptive postdivorce maintenance obligation and then, after reviewing the statutory factors in Domestic Relations Law § 236(B)(6)(e)(1), determined that this award was unjust and inappropriate. The Appellate Division affirmed. The court determined that the wife could support herself through her Social Security income and food stamps, her ownership of the marital residence, her support from family and friends and her ability to work. The Appellate Division found that this deviation was supported by the record, especially considering that the wife conceded that the spousal support payments were for the mortgage and the mortgage had since been paid in full. It noted that upon the entry of the divorce judgment by Supreme Court, all prior support orders of Family Court became null and void in the absence of Supreme Court’s adoption and incorporation of those orders in the divorce judgment” (Family Ct Act § 412[1][c]).
The Appellate Division rejected the wife’s argument that Supreme Court erred in denying her any portion of the husband’s retirement accounts because the court did not consider certain statutory factors outlined in Domestic Relations Law § 236(B)(5)(d). Domestic Relations Law § 236(B)(5)(d) directs that “the court shall set forth the factors it considered and the reasons for its decision and such may not be waived” (Domestic Relations Law § 236[B][5][g]). However, the factors do not have to be specifically cited when the factual findings of the court otherwise adequately articulate that the relevant statutory factors were considered. The court’s award will not be disturbed absent an abuse of discretion or failure to consider the requisite statutory factors under Domestic Relations Law § 236(B)(5)(d) . The record revealed that, as of June 2018, defendant’s 401(k) account had just over $10,000. He also had a pension plan that would pay him $500 per month, contingent on the stock, when he reaches the age of 65. In its order, Supreme Court explicitly stated each factor it must consider under Domestic Relations Law § 236(B)(5)(d) and then analyzed each factor that was relevant, while indicating what factors it deemed irrelevant to the analysis. After analyzing each factor, Supreme Court looked at each asset to determine what distribution would be appropriate and found it appropriate to award the entirety of the retirement assets to the husband. With that being said, the court awarded the entire marital residence to the wife and any other property not discussed was distributed to “the party holding title or possession.” In support of its determination, the court stated that “it is appropriate, equitable and just to award the husband [the retirement] assets in light of the fact that the parties had been physically and financially separated for at least 14 years when the husband started working at Golub [Corporation] and in light of the [c]ourt’s award of the marital residence to the wife without any distribution to the husband of a portion of the equity.” Although the court did not explicitly state which factors contributed to the decision regarding the retirement assets, the order expressly stated each factor and assessed its relevance against the facts and circumstances of the case, and it was clear from the order that the parties’ respective incomes, the duration of the marriage and other financial circumstances were heavily considered. Based on the foregoing it could not be said that the court abused its discretion in awarding the husband 100% of his retirement assets.
Family Court’s determination to modify a permanency goal will not be disturbed unless it lacks a sound and substantial basis in the record.
In Matter of Gabrielle N, --- N.Y.S.3d ----, 2022 WL 547209, 2022 N.Y. Slip Op. 01213 (3d Dept.,2022) a neglect proceeding, the Appellate Division affirmed an order which modified a permanency goal to placement for adoption. It observed that at the conclusion of a permanency hearing, the court has the authority to modify an existing permanency goal and must enter a disposition based upon the proof adduced and in accordance with the best interests of the children. While the aspiration is to return children to their parents, where such goal proves impossible because the parents are unable to correct the conditions that led to the removal, the goal then becomes finding a permanent, stable solution for the children. Family Court’s determination to modify a permanency goal will not be disturbed unless it lacks a sound and substantial basis in the record.
The mere fact that the court adopted petitioners’ proposed findings of fact did not compel a conclusion that it did not undertake an independent evaluation of the record.
In Matter of Baby S, --- N.Y.S.3d ----, 2022 WL 547137, 2022 N.Y. Slip Op. 01219 (3d Dept.,2022) after petitioners commenced a proceeding to adopt her child, respondent filed a notice of revocation of her extrajudicial consent to the adoption. Petitioners opposed the revocation. Following a hearing, Family Court adopted the proposed findings of fact and conclusions of law submitted by petitioners in its entirety and found that the extrajudicial consent was valid and that her notice of revocation was null and void. The Appellate Division affirmed. It held that in view of respondent’s timely revocation of her extrajudicial consent and petitioners’ timely opposition, at issue was whether petitioners’ adoption of the child, as permitted by Family Court, served the child’s best interests (Domestic Relations Law § 115–b [6][d][ii]) as the custody of the “ child shall be awarded solely on the basis of the best interests of the child, and there shall be no presumption that such interest will be promoted by any particular custodial disposition” (Domestic Relations Law § 115–b [6][d][v]). It rejected that argument that Family Court improperly delegated its responsibility to make factual findings when it adopted petitioners’ proposed findings of fact in total. It found that the court directed the parties to submit their own proposed findings of fact, and it was permitted to receive them and “pass upon [them]” (CPLR 4213[a]). The mere fact that the court adopted petitioners’ proposed findings of fact did not compel a conclusion that it did not undertake an independent evaluation of the record. The court presumably “did exactly that and, as a result, concurred with the proposed findings submitted” (Gerenstein v. Williams, 282 A.D.2d 786, 787, 723 N.Y.S.2d 255 [2001]). In a footnote it pointed out that a court’s wholesale copying of the prevailing party’s proposal, although occasionally allowable, is rarely advisable, particularly in such a delicate case. The better practice is for a court to craft its own decision stating] the facts it deems essential” (CPLR 4213[b]), even if it incorporates many of the findings submitted by one party.
Although a subsequently issued permanency order effectively supersedes prior permanency orders, an appeal from a prior order is not moot if that prior order modified the permanency goal.
In Matter of Jaylynn WW, 2022 WL 547172 (3d Dept.,2022), a neglect proceeding, the Appellate Division observed that although CPLR 2101(c) requires the caption of a summons and complaint in a civil matter to include the names of all parties, captions in petitions for Family Ct Act article 10 proceedings often include the names of the children and the respondent parents or other adults responsible for the abuse or neglect but do not always include the name of the petitioning child protective agency. However, defects in the form of papers shall be disregarded by the court unless a substantial right of a party is prejudiced, and objections to defects in form are waived unless the paper is returned with particular objections within 15 days of receipt (see CPLR 2101[f]). Under that statutory provision, the father waived any objection to the form of the caption in the petition and he had not demonstrated any prejudice. For these reasons, the petition was not jurisdictionally defective.
The Appellate Division held that although a subsequently issued permanency order effectively supersedes prior permanency orders, an appeal from a prior order is not moot if that prior order modified the permanency goal; because, by changing the goal, “Family Court altered [the local social service agency’s] obligations in future permanency hearings from working toward reunification” with a parent to working toward a different permanent placement, any new permanency orders will be a direct result of the orders appealed from and the issue of whether those orders were proper will still affect the father’s rights. Accordingly, the appeal from the orders entered after the third permanency hearing was not moot.
March 1, 2022
Release of Revised forms and Child Support Standards Chart on March 1, 2022
Revised Forms for Use in Matrimonial Actions in Supreme Court were adopted effective March 1, 2022. These revisions reflect the required statutory adjustment on March 1, 2022 of the combined income cap under the Child Support Standards Act from $154,000 to $163,000, and of the income cap of the maintenance payor under the Maintenance Guidelines Act from $192,000 to $203,000. Both of these adjustments are based on increases in the Consumer Price Index for all urban consumers (CPI-U) published by the United States Department of Labor. In addition, the revised forms reflect the increases as of March 1, 2022 in the Self Support Reserve from $17,226, to $18,347 and in the federal Poverty Level Income for a single person from $12,760 to $13,590.
The following forms were revised:
Preliminary conference stipulation/order contested matrimonial
Maintenance Guidelines Worksheet (UD-8 (2))
Child Support Worksheet (UD-8 (3))
Temporary Maintenance Worksheet (for divorces started on or after 10/25/15)
Combined Worksheet for Maintenance and Child Support
Child Support Standards Act Chart
Appellate Division, First Department
While not all provisions of the CPL are applicable to proceedings under the Family Court Act under the circumstances here, the denial of records available under CPL 245.10(1)(k)(iv), which broadly requires disclosure of all impeachment evidence deprived appellant of equal protection of the laws.
In Matter of Jayson C., 200 A.D.3d 447, 159 N.Y.S.3d 40, 2021 N.Y. Slip Op. 06794 (1st Dept., 2021) a juvenile delinquency proceeding, appellant sought an order directing the presentment agency to provide the discovery sought in his Discovery Demand, including impeachment evidence pursuant to CPL 245.20(1)(k)(iv), and argued that it was unconstitutional to deny him those materials solely because he was an alleged juvenile delinquent. The presentment agency opposed the motion and argued that it provided all discovery required by the Family Court Act, and that CPL article 245 did not apply to juvenile delinquency proceedings. The Family Court “deemed satisfied” appellant’s motion because the presentment agency had provided the relief requested in his motion. The Family Court denied any request for “further witness information” stating that “the provisions of the CPL cited by [appellant] are expressly inapplicable and preempted in juvenile delinquency cases pursuant to Family Ct Act 303.1(1). The Appellate Division held that while not all provisions of the Criminal Procedure Law are applicable to proceedings under the Family Court Act (Family Ct Act § 303.1[1]) under the circumstances presented here, the denial of records available under CPL 245.10(1)(k)(iv), which broadly requires disclosure of all impeachment evidence deprived appellant of equal protection of the laws. A respondent in a juvenile delinquency proceeding has the same right to cross-examine witnesses as a criminal defendant, and there is no reason to allow more limited access to impeachment materials in a juvenile suppression or fact-finding hearing than in a criminal suppression hearing or trial. The need for impeachment evidence is equally crucial in both delinquency and criminal proceedings. A similarly situated defendant in a criminal proceeding would be entitled to access to the impeachment materials requested by appellant. Because appellant asked only that the information be provided under Family Court Act article 3 timelines, it held that it need not address whether any different time frame contained in the Criminal Procedure Law must apply under equal protection principles.
Appellate Division, Third Department
Where father moved to Florida and mother was awarded custody, Family Court’s directive that the mother contribute to the transportation costs to effectuate the father’s parenting time was fair and appropriate
In Andrea H v Justin I, --- N.Y.S.3d ----, 2022 WL 479492, 2022 N.Y. Slip Op. 01080 (3d Dept.,2022) after the father relocated to Florida with his wife to take care of certain family members with failing health. Family Court awarded the parties joint legal custody of the children with primary physical custody to the mother, as the parties had agreed. The father was awarded set parenting time. So long as the father paid a minimum of $100 per week in child support and was not more than six weeks behind in his current child support obligation, the parties were to split the transportation costs associated with effectuating the father’s Christmas break parenting time in odd years and for one of the visits each summer. In all other instances, the father would be solely responsible for transportation costs, and an annual cap of $750 was set for the mother’s share of transportation expenses. The Appellate Division found that Family Court’s directive that the mother contribute to the transportation costs to effectuate the father’s parenting time was fair and appropriate. The parties were “on fairly equal footing” financially at the time of the hearing. Although it is relevant that the father’s voluntary relocation to Florida led to the increased transportation costs the father still bears a substantial portion of the costs under the order.
Where mother appealed from custody order but attorney for the child did not appeal she was barred from seeking affirmative relief not sought by the mother.
In Matter of Charity K v Sultani L, --- N.Y.S.3d ----, 2022 WL 479490, 2022 N.Y. Slip Op. 01085 (3d Dept.,2022) the mother appealed from an order which denied her petition for modification of a custody order and argued, with the support of the appellate attorney for the child, that the record did not support continuing the child’s physical placement with the father. In affirming, the Appellate Division held that since the attorney for the child did not appeal from Family Court’s order she was “barred from seeking affirmative relief not sought by the mother.
Mother failed to meet her burden and equitable estoppel did not apply to Petitioner where respondent transitioned from a fatherly role to a friendly role upon discovering that he was not the child’s biological father
In Matter of John D v Carrie C, --- N.Y.S.3d ----, 2022 WL 479489, 2022 N.Y. Slip Op. 01089(3d Dept.,2022) the Appellate Division affirmed an order which ordered a genetic marker test pursuant to Family Ct Act § 532(a) which allows the court to deny a genetic marker test on the basis of equitable estoppel. It found that respondent, who was listed falsely on as the father on the childs birth certificate, signed an acknowledgment of paternity, was present at the hospital when the child was born and participated in the care of the child for the first year and a half of her life, transitioned from a fatherly role to a friendly role upon discovering that he was not the child’s biological father, and the child, who was six years old at the hearing, had been raised with the understanding that respondent was not her father. The mother testified that she now indicates to the child that respondent is her father, knowing with certainty that he is not. As the record failed to establish that the child would suffer irreparable loss of status, destruction of [her] family image, or other harm to [her] physical or emotional well-being if this proceeding were permitted to go forward, it found that contrary to Family Court’s order, the mother failed to. By contrast, a parent-child relationship between petitioner and the child had evolved since their initial contact in early January 2020. The mother testified that she stopped allowing the child to see petitioner after petitioner became “demanding” about having regular weekend parenting time with the child at his home and outside of the mother’s presence. Accordingly, equitable estoppel did not bar issuance of an order for genetic marker tests.
Family Ct Act § 427[a] requires service of both the summons and the petition to obtain personal jurisdiction in support proceeding. Traverse ordered where affidavit of service indicated service of summons only.
In Matter of Commissioner of Broome County Social Services on Behalf of Harbst v Wagner, 2022 WL 479456 (3d Dept.,2022) the Appellate Division reversed an order which granted petitioner’s application, to hold respondent in willful violation of two prior orders of support. It observed that in a proceeding to enforce a support order, personal jurisdiction may be obtained over the respondent through personal service of the summons and petition at least eight days before the scheduled appearance (see Family Ct Act §§ 427[a]; 453[c]). In the affidavit of service the person who served process checked the box for “summons,” but did not check the box for “petition.” The statute requires service of both the summons and the petition (see Family Ct Act § 427[a]). As such, the Support Magistrate and Family Court erred in accepting the affidavit as proof of adequate service without further inquiry on the matter at a traverse hearing.
Where custody order was entered on the parents’ consent but over the AFC’s objection, the child was aggrieved given that she did not receive her desired outcome with respect to the custodial arrangement
In Matter of Jessee U v Dakota V, 2022 WL 479465 (3d Dept.,2022) before a fact-finding hearing on the custody petition was held, the mother and the father came to an agreement whereby the father would have primary physical custody and the mother would have weekend visits every other week and certain other parenting time. Upon the parents’ consent, but over the objection of the AFC, Family Court entered an order in July 2020 effectuating the agreement. The court entered a fact-finding and dispositional order as to the mother’s neglect proceeding thereinafter, in December 2020. The AFC appealed from both orders. The AFC argued that, by merely accepting the parents’ agreement, Family Court abdicated its responsibility to ensure that the custodial arrangement furthers the child’s best interests, and the AFC requested that the matter be remitted for a full evidentiary hearing. The Appellate Division affirmed. It held that Family Court is not required to hold a hearing in every custody matter, and a hearing is not necessary where none is requested and the court has “sufficient information to undertake a comprehensive independent review of the child’s best interests”. Here, there was no request for a hearing following Family Court’s acceptance of the agreement. In addition, the court had sufficient information to consider the child’s best interests. No hearing was required here. In a footnote the Court pointed out that the custody order was entered on the parents’ consent but over the AFC’s objection, and the child was aggrieved thereby given that she did not receive her desired outcome with respect to the custodial arrangement. However, the child was not aggrieved by the finding of neglect against the mother as the AFC consented to the entry of an order to that end.
Supreme Court
“Habitual residence” determination is fact driven. Court must inquire into shared intent of those entitled to fix child’s home at the latest time that they had the same interests and should inquire whether evidence unequivocally concludes that child has acclimatized to the new location notwithstanding any conflict with parents’ latest shared intent.
In State of New York Ex Rel. B.E., v. T.C., --- N.Y.S.3d ----, 2022 WL 497517, 2022 N.Y. Slip Op. 22044 (Sup Ct, 2022) Mr. E. filed a petition permitting him to immediately take M. to London based on the Court’s emergency jurisdiction under Domestic Relations Law 75-a (7), and 76-c and the Hague Convention. Currently M. Was with his mother, Respondent T.C. in Brooklyn. Ms. C. moved to, inter alia, dismiss petitioner’s application under CPLR 3211 (a)(4) and DRL 76-e (1) and 76-e (2). Mr. E. wanted the court to assume temporary emergency jurisdiction of M. under Domestic Relations Law section 76-C and because M. is imminent danger for among other things, he will miss the starts of the school semester. He asked the court to determine an emergency under New York’s Domestic Relation Law to avoid a possible negative outcome in San Francisco California, where a custody action between the parties was pending that pre-dated this New York case. The court denied the petitioner’s application to apply UCCJA jurisdiction under CPLR 3211(a)(7) prior action pending.
Supreme Court denied Mr. E.’s request for a ruling that under the Hague convention England was M.’s “habitual residence” and that he should be immediately returned to his care. The Court observed that to determine habitual residence, “the court must also inquire into the shared intent of those entitled to fix the child’s home (usually the parents) at “the latest time that they had the same interests”. The court must consider intent, actions, and declaration. And the court should inquire whether the evidence unequivocally concludes that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent. (Matter of E.Z. 2021 WL 5106637 [SDNY 2021]) The parties resided in England from the 2007 marriage until 2014. When they moved to San Francisco they sold their home in England. In 2015 Ms. C. told Mr. E. that she wanted to end the marriage and insisted he take M. and move from the marital residence. Mr. E. commenced the divorce action in San Francisco in 2016. While Ms. C. was on tour during 2017 M. continued to reside in San Francisco. In 2018 she moved to New York for medical treatment and remained there when diagnosed with breast cancer. In December 2019, Mr. E. took M. to visit Ms. C. in New York. Then he removed M. to England without Ms. C.’s consent. He moved into his parent’s home and enrolled M. in school in England. They visited Ms. C. in New York during the Christmas holidays in 2019 and from February 15-23, 2020.
Supreme Court noted that the “habitual residence” determination is “fact driven,” and “courts must be sensitive to the case’s unique circumstances and informed by common sense.” (Monasky v. Taglieri, 140 S. Ct. 719, 723 [2020]). The residence must have the “quality of being habitual.” The court must consider time passage, participation in sports programs and excursions, academic activities, and meaningful connections with the people and places in the child’s new country. Parents must have a “shared” settled intent to acquire a new habitual residence in the shared plan about the child’s future. Shared intent may “coalesce” if the child leaves the country. The court found two places where the parents would have agreed to reside habitually: San Francisco or New York after July 25, 2021. Ms. C. never abandoned her apartment in San Francisco and never consented to M. relocating permanently to England in December 2019. Nothing indicatef M. acclimated to England. The court found that Mr. E. did not create a situation that changed M.’s “habitual residence” to England. His actions in San Francisco and New York, indicated he did not rely on a Hague Convention case setting a new “habitual residence.” The court found that both parents had a shared intent that New York would become M.’s habitual residence as of July 2021 and that the facts did not establish that England was M.’s “habitual residence.” Mr. E.’s petition for an order mandating M.’s return to England was denied.
February 23, 2022
Appellate Division, First Department
While not all provisions of the CPL are applicable to proceedings under the Family Court Act under the circumstances here, the denial of records available under CPL 245.10(1)(k)(iv), which broadly requires disclosure of all impeachment evidence deprived appellant of equal protection of the laws.
In Matter of Jayson C., 200 A.D.3d 447, 159 N.Y.S.3d 40, 2021 N.Y. Slip Op. 06794 (1st Dept., 2021) a juvenile delinquency proceeding, appellant sought an order directing the presentment agency to provide the discovery sought in his Discovery Demand, including impeachment evidence pursuant to CPL 245.20(1)(k)(iv), and argued that it was unconstitutional to deny him those materials solely because he was an alleged juvenile delinquent. The presentment agency opposed the motion and argued that it provided all discovery required by the Family Court Act, and that CPL article 245 did not apply to juvenile delinquency proceedings. The Family Court “deemed satisfied” appellant’s motion because the presentment agency had provided the relief requested in his motion. The Family Court denied any request for “further witness information” stating that “the provisions of the CPL cited by [appellant] are expressly inapplicable and preempted in juvenile delinquency cases pursuant to Family Ct Act 303.1(1). The Appellate Division held that while not all provisions of the Criminal Procedure Law are applicable to proceedings under the Family Court Act (Family Ct Act § 303.1[1]) under the circumstances presented here, the denial of records available under CPL 245.10(1)(k)(iv), which broadly requires disclosure of all impeachment evidence deprived appellant of equal protection of the laws. A respondent in a juvenile delinquency proceeding has the same right to cross-examine witnesses as a criminal defendant, and there is no reason to allow more limited access to impeachment materials in a juvenile suppression or fact-finding hearing than in a criminal suppression hearing or trial. The need for impeachment evidence is equally crucial in both delinquency and criminal proceedings. A similarly situated defendant in a criminal proceeding would be entitled to access to the impeachment materials requested by appellant. Because appellant asked only that the information be provided under Family Court Act article 3 timelines, it held that it need not address whether any different time frame contained in the Criminal Procedure Law must apply under equal protection principles.
Appellate Division, Third Department
Where father moved to Florida and mother was awarded custody, Family Court’s directive that the mother contribute to the transportation costs to effectuate the father’s parenting time was fair and appropriate
In Andrea H v Justin I, --- N.Y.S.3d ----, 2022 WL 479492, 2022 N.Y. Slip Op. 01080 (3d Dept.,2022) after the father relocated to Florida with his wife to take care of certain family members with failing health. Family Court awarded the parties joint legal custody of the children with primary physical custody to the mother, as the parties had agreed. The father was awarded set parenting time. So long as the father paid a minimum of $100 per week in child support and was not more than six weeks behind in his current child support obligation, the parties were to split the transportation costs associated with effectuating the father’s Christmas break parenting time in odd years and for one of the visits each summer. In all other instances, the father would be solely responsible for transportation costs, and an annual cap of $750 was set for the mother’s share of transportation expenses. The Appellate Division found that Family Court’s directive that the mother contribute to the transportation costs to effectuate the father’s parenting time was fair and appropriate. The parties were “on fairly equal footing” financially at the time of the hearing. Although it is relevant that the father’s voluntary relocation to Florida led to the increased transportation costs the father still bears a substantial portion of the costs under the order.
Where mother appealed from custody order but attorney for the child did not appeal she was barred from seeking affirmative relief not sought by the mother.
In Matter of Charity K v Sultani L, --- N.Y.S.3d ----, 2022 WL 479490, 2022 N.Y. Slip Op. 01085 (3d Dept.,2022) the mother appealed from an order which denied her petition for modification of a custody order and argued, with the support of the appellate attorney for the child, that the record did not support continuing the child’s physical placement with the father. In affirming, the Appellate Division held that since the attorney for the child did not appeal from Family Court’s order she was “barred from seeking affirmative relief not sought by the mother.
Mother failed to meet her burden and equitable estoppel did not apply to Petitioner where respondent transitioned from a fatherly role to a friendly role upon discovering that he was not the child’s biological father
In Matter of John D v Carrie C, --- N.Y.S.3d ----, 2022 WL 479489, 2022 N.Y. Slip Op. 01089(3d Dept.,2022) the Appellate Division affirmed an order which ordered a genetic marker test pursuant to Family Ct Act § 532(a) which allows the court to deny a genetic marker test on the basis of equitable estoppel. It found that respondent, who was listed falsely on as the father on the childs birth certificate, signed an acknowledgment of paternity, was present at the hospital when the child was born and participated in the care of the child for the first year and a half of her life, transitioned from a fatherly role to a friendly role upon discovering that he was not the child’s biological father, and the child, who was six years old at the hearing, had been raised with the understanding that respondent was not her father. The mother testified that she now indicates to the child that respondent is her father, knowing with certainty that he is not. As the record failed to establish that the child would suffer irreparable loss of status, destruction of [her] family image, or other harm to [her] physical or emotional well-being if this proceeding were permitted to go forward, it found that contrary to Family Court’s order, the mother failed to. By contrast, a parent-child relationship between petitioner and the child had evolved since their initial contact in early January 2020. The mother testified that she stopped allowing the child to see petitioner after petitioner became “demanding” about having regular weekend parenting time with the child at his home and outside of the mother’s presence. Accordingly, equitable estoppel did not bar issuance of an order for genetic marker tests.
Family Ct Act § 427[a] requires service of both the summons and the petition to obtain personal jurisdiction in support proceeding. Traverse ordered where affidavit of service indicated service of summons only.
In Matter of Commissioner of Broome County Social Services on Behalf of Harbst v Wagner, 2022 WL 479456 (3d Dept.,2022) the Appellate Division reversed an order which granted petitioner’s application, to hold respondent in willful violation of two prior orders of support. It observed that in a proceeding to enforce a support order, personal jurisdiction may be obtained over the respondent through personal service of the summons and petition at least eight days before the scheduled appearance (see Family Ct Act §§ 427[a]; 453[c]). In the affidavit of service the person who served process checked the box for “summons,” but did not check the box for “petition.” The statute requires service of both the summons and the petition (see Family Ct Act § 427[a]). As such, the Support Magistrate and Family Court erred in accepting the affidavit as proof of adequate service without further inquiry on the matter at a traverse hearing.
Where custody order was entered on the parents’ consent but over the AFC’s objection, the child was aggrieved given that she did not receive her desired outcome with respect to the custodial arrangement
In Matter of Jessee U v Dakota V, 2022 WL 479465 (3d Dept.,2022) before a fact-finding hearing on the custody petition was held, the mother and the father came to an agreement whereby the father would have primary physical custody and the mother would have weekend visits every other week and certain other parenting time. Upon the parents’ consent, but over the objection of the AFC, Family Court entered an order in July 2020 effectuating the agreement. The court entered a fact-finding and dispositional order as to the mother’s neglect proceeding thereinafter, in December 2020. The AFC appealed from both orders. The AFC argued that, by merely accepting the parents’ agreement, Family Court abdicated its responsibility to ensure that the custodial arrangement furthers the child’s best interests, and the AFC requested that the matter be remitted for a full evidentiary hearing. The Appellate Division affirmed. It held that Family Court is not required to hold a hearing in every custody matter, and a hearing is not necessary where none is requested and the court has “sufficient information to undertake a comprehensive independent review of the child’s best interests”. Here, there was no request for a hearing following Family Court’s acceptance of the agreement. In addition, the court had sufficient information to consider the child’s best interests. No hearing was required here. In a footnote the Court pointed out that the custody order was entered on the parents’ consent but over the AFC’s objection, and the child was aggrieved thereby given that she did not receive her desired outcome with respect to the custodial arrangement. However, the child was not aggrieved by the finding of neglect against the mother as the AFC consented to the entry of an order to that end.
Supreme Court
“Habitual residence” determination is fact driven. Court must inquire into shared intent of those entitled to fix child’s home at the latest time that they had the same interests and should inquire whether evidence unequivocally concludes that child has acclimatized to the new location notwithstanding any conflict with parents’ latest shared intent.
In State of New York Ex Rel. B.E., v. T.C., --- N.Y.S.3d ----, 2022 WL 497517, 2022 N.Y. Slip Op. 22044 (Sup Ct, 2022) Mr. E. filed a petition permitting him to immediately take M. to London based on the Court’s emergency jurisdiction under Domestic Relations Law 75-a (7), and 76-c and the Hague Convention. Currently M. Was with his mother, Respondent T.C. in Brooklyn. Ms. C. moved to, inter alia, dismiss petitioner’s application under CPLR 3211 (a)(4) and DRL 76-e (1) and 76-e (2). Mr. E. wanted the court to assume temporary emergency jurisdiction of M. under Domestic Relations Law section 76-C and because M. is imminent danger for among other things, he will miss the starts of the school semester. He asked the court to determine an emergency under New York’s Domestic Relation Law to avoid a possible negative outcome in San Francisco California, where a custody action between the parties was pending that pre-dated this New York case. The court denied the petitioner’s application to apply UCCJA jurisdiction under CPLR 3211(a)(7) prior action pending.
Supreme Court denied Mr. E.’s request for a ruling that under the Hague convention England was M.’s “habitual residence” and that he should be immediately returned to his care. The Court observed that to determine habitual residence, “the court must also inquire into the shared intent of those entitled to fix the child’s home (usually the parents) at “the latest time that they had the same interests”. The court must consider intent, actions, and declaration. And the court should inquire whether the evidence unequivocally concludes that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent. (Matter of E.Z. 2021 WL 5106637 [SDNY 2021]) The parties resided in England from the 2007 marriage until 2014. When they moved to San Francisco they sold their home in England. In 2015 Ms. C. told Mr. E. that she wanted to end the marriage and insisted he take M. and move from the marital residence. Mr. E. commenced the divorce action in San Francisco in 2016. While Ms. C. was on tour during 2017 M. continued to reside in San Francisco. In 2018 she moved to New York for medical treatment and remained there when diagnosed with breast cancer. In December 2019, Mr. E. took M. to visit Ms. C. in New York. Then he removed M. to England without Ms. C.’s consent. He moved into his parent’s home and enrolled M. in school in England. They visited Ms. C. in New York during the Christmas holidays in 2019 and from February 15-23, 2020.
Supreme Court noted that the “habitual residence” determination is “fact driven,” and “courts must be sensitive to the case’s unique circumstances and informed by common sense.” (Monasky v. Taglieri, 140 S. Ct. 719, 723 [2020]). The residence must have the “quality of being habitual.” The court must consider time passage, participation in sports programs and excursions, academic activities, and meaningful connections with the people and places in the child’s new country. Parents must have a “shared” settled intent to acquire a new habitual residence in the shared plan about the child’s future. Shared intent may “coalesce” if the child leaves the country. The court found two places where the parents would have agreed to reside habitually: San Francisco or New York after July 25, 2021. Ms. C. never abandoned her apartment in San Francisco and never consented to M. relocating permanently to England in December 2019. Nothing indicatef M. acclimated to England. The court found that Mr. E. did not create a situation that changed M.’s “habitual residence” to England. His actions in San Francisco and New York, indicated he did not rely on a Hague Convention case setting a new “habitual residence.” The court found that both parents had a shared intent that New York would become M.’s habitual residence as of July 2021 and that the facts did not establish that England was M.’s “habitual residence.” Mr. E.’s petition for an order mandating M.’s return to England was denied.
February 16, 2022
Generally, where the asset to be valued is the marital residence, the valuation date employed should be the date of trial
In Kattan v Kattan, --- N.Y.S.3d ----, 2022 WL 385950, 2022 N.Y. Slip Op. 00856 (2d Dept.,2022) the parties were married in 1989 and had four children together, the youngest of whom was currently 20 years old. On January 8, 2009, the plaintiff commenced this action for a divorce. The Supreme Court conducted a nonjury trial over 45 nonconsecutive days between May 9, 2011, and May 15, 2014, and issued a decision after trial dated May 3, 2018. A judgment of divorce dated December 11, 2018, (1) awarded the defendant title to the marital residence and awarded the plaintiff $1,637,500 for his interest in the marital residence; (2) awarded the defendant $1,190,301.18 for her contribution to the appreciation in value of the plaintiff’s separate property in Deal, New Jersey ( which the Appellate Division reduced on this appeal); (3) awarded the defendant title to certain marital property on Ditmas Avenue in Brooklyn, and awarded the plaintiff the sum of $532,294.27 for his interest in that property; (4) awarded the plaintiff $807,408.60 for his interest in certain marital property on Avenue P in Brooklyn; (5) awarded the defendant $472,500 for her interest in certain marital property on 20th Avenue in Brooklyn; (8) awarded the defendant 30% of the appreciated value of the plaintiff’s premarital interest in Madison Maidens and 50% of the plaintiff’s postmarital interest in Madison Maidens; (9) awarded the defendant maintenance of $5,000 per month for a period of 18 months; (10) directed the plaintiff to pay the defendant basic child support of $2,250 per month plus 71.08% of statutory add-on expenses for the parties’ unemancipated child; (12) awarded the defendant 50% of the cash surrender value of an AVIVA life insurance policy.
The Appellate Division, inter alia, held that the Supreme Court providently exercised its discretion in awarding the defendant title to the marital residence and in calculating the plaintiff’s 50% interest in that property based upon the value of that property as stipulated to by the parties during the trial of this action in 2012. Generally, where the asset to be valued is the marital residence, “the valuation date employed should be the date of trial” (Wegman v. Wegman, 123 A.D.2d 220, 232, 509 N.Y.S.2d 342). The court explained in its decision that it determined to award the defendant title to the marital residence upon consideration of the totality of the circumstances, including the court’s distribution awards with respect to the remainder of the parties’ marital property, and the defendant’s position as custodial parent of the parties’ then-unemancipated child. However, the Supreme Court should have awarded the plaintiff a credit for separate property funds he used to purchase and renovate the marital residence. The plaintiff’s proof at trial established that he used $991,416.54 in separate property funds to purchase and renovate the marital residence. It modified the judgment to award the plaintiff $2,133,208.27 for his interest in the marital residence, constituting $991,416.54 in credits for his separate property contribution plus $1,141,791.73, which was 50% of the stipulated value of the marital residence of $3,275,000, as reduced by the amount of the plaintiff’s separate property contribution.
The Appellate Division also modified the judgment by deleting the provision awarding the defendant $1,190,301.18 for her contributions to the appreciation in value of the plaintiff’s separate property in Deal, New Jersey, and substituting a provision awarding the defendant $595,150.59 for her contributions to the appreciation in value of that property; and by deleting the provision awarding the defendant $472,500 for her interest in certain marital property on 20th Avenue in Brooklyn, and substituting a provision awarding the defendant $428,492.50 for her interest in that property;
Family Court Act § 439(e) is mandatory insofar as it plainly states that the court shall,” within 15 days of an objection to a support award being fully submitted, issue a ruling on it.”
In Matter of Liu v Ruiz, 200 A.D.3d 68, 158 N.Y.S.3d 25, 2021 N.Y. Slip Op. 06089 (1s Dept.,2021) after Family Court failed to issue a timely ruling on the mother’s objections to findings of fact issued by support magistrate in proceedings on her child support violation petition, the mother filed petition for mandamus relief against the Chief Administrative Judge of the Family Court, to compel a decision on mother’s objections and for reasonable attorney fees under State Equal Access to Justice Act (EAJA). After a judge was assigned to the support proceeding and issued a favorable decision on the mother’s pending objections, the State, on behalf of the Chief Administrative Judge, cross-moved to dismiss the mandamus proceeding. The Supreme Court denied the petition and dismissed the proceeding as moot. The Appellate Division held that the failure by Chief Administrative Judge to assign judge to hear the mother’s objections within 15 days violated a clear obligation in the statute governing support magistrates and the mother was entitled to attorney fees as “prevailing party” under EAJA. It held that Family Court Act § 439(e) was violated. The statute is mandatory insofar as it plainly states that the court shall,” within 15 days of an objection to a support award being fully submitted, issue a ruling on it.”
February 9, 2022
Appellate Division, First Department
So long as disclosure sought from nonparty witness is relevant to the prosecution or defense of an action, it must be provided by the nonparty
In Gross v Hazan-Gross, --- N.Y.S.3d ----, 2022 WL 243140 (Mem), 2022 N.Y. Slip Op. 00501(1s Dept.,2022) the Appellate Division affirmed an order which granted defendant wife’s motion to compel nonparty appellant (Langman) to produce documents responsive to a subpoena and to appear for examination before trial, unanimously affirmed, with costs. It held that the motion court providently exercised its discretion in ordering Langman to comply with the Subpoena. Langman failed to show that the discovery sought by defendant via the Subpoena was “utterly irrelevant” or that the “futility of the process to uncover anything legitimate is inevitable or obvious” (Matter of Kapon v. Koch, 23 N.Y.3d 32 [2014]) So long as the disclosure sought is relevant to the prosecution or defense of an action, it must be provided by the nonparty.
Respondent was a person legally responsible (PLR) for the children where parties represented he was the child’s biological father, he maintained communication with the mother and failed to appear or testify to dispute the evidence, allowing the court to draw a negative inference against him.
In Matter of Tristian B., 2022 WL 243150 (1st Dept.,,2022) the Appellate Division reversed an order which dismissed the petition alleging neglect or derivative neglect of the child for lack of standing, and found respondent to have neglected the subject child. Petitioner demonstrated by a preponderance of the evidence that respondent was a person legally responsible (PLR) for the subject child, as well as for the child’s three older siblings. Respondent and the children’s mother were in a romantic relationship and lived together before the child was born, and they both represented to caseworkers that respondent was the child’s biological father. There was evidence that, although he was excluded from the home because of an order of protection against him, respondent maintained communication with the mother and slept at the home at least on occasion, sharing the mother’s bed. Respondent failed to appear or testify to dispute the evidence that he was the child’s biological father or a PLR for him. The fact that respondent was excluded from the household before the child’s birth as a result of having committed acts of excessive corporal punishment against the child’s eldest sibling did not outweigh the evidence that demonstrated that he was a PLR for the child. The finding that respondent was a PLR for the child was further supported by his failure to appear in court, allowing the court to draw a negative inference against him.
Appellate Division, Second Department
While court has considerable discretion in imputing income, the imputed income figure must be rationally based. Where the imputed income amount was entirely speculative it should not have been imputed to the plaintiff. Expenses for extracurricular activities are not specifically delineated as an “add-on” under the CSSA.
In Tuchman v Tuchman, --- N.Y.S.3d ----, 2022 WL 221204, 2022 N.Y. Slip Op. 00454 (2d Dept.,2022) the plaintiff and the defendant were married in January 1985 and had four children, two of whom were unemancipated at the time of trial, born 1997 and 2005, respectively. On November 27, 2012, the plaintiff commenced this action for a divorce. Midway through a nonjury trial the parties entered into a stipulation of settlement resolving the issues of equitable distribution, separate property, businesses, counsel fees, and professional fees. Following the trial, the Supreme Court issued a decision setting forth its determinations regarding the outstanding issues. In the decision, the court determined to impute an annual income of $800,000 to the defendant and an annual income of $62,231.46 to the plaintiff. The judgment of divorce, which incorporated the June 2017 stipulation, insofar as appealed from (1) awarded the plaintiff nondurational maintenance of $25,000 per month commencing May 1, 2018, and continuing for a period of five years,$20,000 per month for an additional period of five years, and $12,000 per month thereafter until the death of either party or the remarriage of the plaintiff; (2) directed the defendant to pay basic child support for the parties’ youngest child of $4,611 per month and 93% of the costs of the extracurricular activities of that child; (3) directed the defendant to pay 100% of the unreimbursed healthcare costs of the parties’ two youngest children; .(4) directed the plaintiff to reimburse the defendant $7,500 toward the total costs of the trial transcripts. The court also granted a money judgment for arrears under the stipulation in favor of the plaintiff and against the defendant in the principal sum of $110,000.
The Appellate Division affirmed, as a proper exercise of discretion, the imputation of income to the defendant for purposes of awarding maintenance. It held that in computing child support, the Supreme Court improvidently exercised its discretion by imputing to the plaintiff $62,231.46 in annual income. While the court has considerable discretion in imputing income, the imputed income figure must be rationally based. Here, the imputed income amount was entirely speculative, based upon assumptions as to the plaintiff’s purported investment return from her distributive award, unsupported by evidence in the record. It was undisputed that the plaintiff left the workforce over 30 years ago at the defendant’s request. Therefore, annual income should not have been imputed to the plaintiff in determining child support. It modified the judgment to direct the defendant to pay the plaintiff $4,958.33 per month in basic child support for the parties’ youngest child.
In addition to the defendants’ basic child support obligation, the Supreme Court directed the defendant to pay his pro rata share of the costs of the extracurricular activities of the parties’ youngest child, including summer camp. The Appellate Division held that although such expenses may be appropriately considered as an “add on expense” for child care the plaintiff failed to establish an entitlement to child care expenses. Although the defendant acknowledged that it was in the child’s best interest to attend summer camp, and, during the marriage, all of the parties’ children attended summer camp, the child’s standard of living during the marriage was taken into account in awarding basic child support using the defendant’s income in excess of the statutory cap. Expenses for extracurricular activities are not specifically delineated as an “add-on” under the Child Support Standards Act. It held that the substantial basic child support award should be sufficient to cover the child’s expenses, including her extracurricular activities.
The court must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap. Such articulation should reflect a careful consideration of the stated basis for the court’s exercise of discretion, the parties’ circumstances, and the court’s reasoning.
In Moradi v Buhl, . --- N.Y.S.3d ----, 2022 WL 221153 (Mem), 2022 N.Y. Slip Op. 00421 (2d Dept.,2022) the parties were married in 2003, and were the parents of a daughter born in 2004. The plaintiff commenced this action for a divorce in February 2014. Supreme Court awarded the defendant residential custody of the child and directed the plaintiff to pay $2,599.58 per month in child support. The Appellate Division observed that where the combined parental income exceeds the statutory cap, the court, in fixing the basic child support obligation on income over the statutory cap, has the discretion to apply the factors set forth in Domestic Relations Law § 240(1–b)(f), or to apply the statutory percentages, or to apply both (see Domestic Relations Law § 240[1–b][c][3]). The court must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap. Such articulation should reflect a careful consideration of the stated basis for the court’s exercise of discretion, the parties’ circumstances, and the court’s reasoning why there should or should not be a departure from the prescribed percentage. It found that the Supreme Court stated that it applied the child support percentage to the amount above the statutory cap primarily due to the parties’ considerable income, the needs of the child, and the fact that the defendant was not seeking any add-on contributions from the plaintiff for the child’s expenses, other than basic child support. Under the circumstances presented, the court providently exercised its discretion in applying the child support percentage to the parties’ income over the statutory cap.
The party seeking to overcome the presumption that property acquired during the marriage is presumed to be marital property has the burden of proving that the property in dispute is separate property. Testimony which was not confirmed by any documentary evidence, and found to be incredible did not meet that burden.
In Keren v Keren, --- N.Y.S.3d ----, 2022 WL 221138 (Mem), 2022 N.Y. Slip Op. 00412(2d Dept.,2022) the parties were married on September 1, 1991. In 2016, the plaintiff commenced this action for a divorce. At trial, the defendant testified that he owned a percentage interest in Manhattan Bridge Car Wash, Inc. (MBCW), which was incorporated during the marriage. MBCW owned a lease to a car wash in Brooklyn, but sold that lease in 2007 and used the proceeds of that sale to purchase a building in Manhattan. In 2016, MBCW sold the building in Manhattan and used the proceeds of that sale to buy a building in Huntington, which was leased by Walgreens. The defendant testified that he had no personal responsibility for the Huntington property, but, as a shareholder of MBCW, he received a portion of the monthly rent from the Walgreens lease. Supreme Court awarded the plaintiff 50% of the defendant’s interest in MBCW, and 50% of the defendant’s interest in the Huntington property in the event the property was ever sold. The defendant appeals.
The Appellate Division held that Supreme Court did not improvidently exercise its discretion in awarding the plaintiff 50% of his interest in MBCW. Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property. The defendant’s brother testified at the trial that he gifted the defendant his interest in MBCW. However, this assertion was not confirmed by any documentary evidence, and the Supreme Court found the defendant’s brother’s testimony to be incredible. Accordingly, the defendant did not meet his burden of establishing that his interest in MBCW was separate property.
The Appellate Division observed that when both spouses equally contribute to a marriage of long duration, the division of marital property should be as equal as possible .Here, both parties were involved with MBCW during this 25–year marriage, and the equal distribution of the defendant’s interest was a provident exercise of the Supreme Court’s discretion
Father’s disruptive behavior which was grossly disrespectful to the Supreme Court and precipitated his removal from the virtual courtroom constituted a knowing and wilful default
In Matter of Smith v Bullock, --- N.Y.S.3d ----, 2022 WL 302511 (Mem), 2022 N.Y. Slip Op. 00671 (2d Dept.,2022) Supreme Court granted the petition of the nonparent Judith Smith for custody of the child on default. The Appellate Division dismissed the fathers appeal as no appeal lies from an order that was entered upon the default of the appealing party, except with respect to matters which were the subject of contest . The record demonstrated that the father’s disruptive behavior over the course of the proceedings, and specifically, during a conference on January 27, 2021, was grossly disrespectful to the Supreme Court and precipitated his removal from the virtual courtroom. Therefore, it held that the court acted properly in excluding the father from further participation in the proceedings, as the father’s conduct was sufficient to constitute a knowing and willful default (citing Matter of Bartosz B. [Andrzej B.], 187 A.D.3d 894, 896, 134 N.Y.S.3d 45; Matter of Nyree S. v. Gregory C., 99 A.D.3d 561, 562, 951 N.Y.S.2d 874; Matter of Kondratyeva v. Yapi, 13 A.D.3d 376, 788 N.Y.S.2d 394; Matter of McConnell v. Montagriff, 233 A.D.2d 512, 650 N.Y.S.2d 768). The determinations made after the father was found in default were not subject to direct appellate review (see CPLR 5511)
Appellate Division, Fourth Department
A case that involves an initial custody determination cannot properly be characterized as a relocation case to which the factors set forth in Matter of Tropea v. Tropea need be strictly applied
In Matter of Hochreiter v Williams, --- N.Y.S.3d ----, 2022 WL 262962 (Mem), 2022 N.Y. Slip Op. 00543 (4th Dept., 2022) the Appellate Division held that a case that involves an initial custody determination, cannot properly be characterized as a relocation case to which the application of the factors set forth in Matter of Tropea v. Tropea (87 N.Y.2d 727 [1996]) need be strictly applied. Although a court may consider the effect of a parent’s [proposed] relocation as part of a best interests analysis, relocation is but one factor among many in its custody determination The relevant issue is whether it is in the best interests of the child to reside primarily with the mother or the father.
22 NYCRR 202.6 - Request for judicial intervention Rule Amended Effective February 1, 2022 to include in subdivision (b) that a request for judicial intervention shall be filed, without fee for an application for a “change of sex designation”
Section 202.6. Request for judicial intervention
(a) At any time after service of process, a party may file a request for judicial intervention. Except as provided in subdivision (b) of this section, in an action not yet assigned to a judge, the court shall not accept for filing a notice of motion, order to show cause, application for ex parte order, notice of petition, note of issue, notice of medical, dental or podiatric malpractice action, statement of net worth pursuant to section 236 of the Domestic Relations Law or request for a preliminary conference pursuant to section 202.12(a) of this Part, unless such notice or application is accompanied by a request for judicial intervention. Where an application for poor person relief is made, payment of the fee for filing the request for judicial intervention accompanying the application shall be required only upon denial of the application. A request for judicial intervention must be submitted, in duplicate, on a form authorized by the Chief Administrator of the Courts, with proof of service on the other parties to the action (but proof of service is not required where the application is ex parte).
(b) A request for judicial intervention shall be filed, without fee, for any application to a court not filed in an action or proceeding, as well as for a petition for the sale or finance of religious/not-for-profit property, an application for change of name or change of sex designation, a habeas corpus proceeding where the movant is institutionalized, an application under CPLR 3102(e) for court assistance in obtaining disclosure in an action pending in another state, a retention proceeding authorized by article 9 of the Mental Hygiene Law, a proceeding authorized by article 10 of the Mental Hygiene Law, an appeal to a county court of a civil case brought in a court of limited jurisdiction, an application to vacate a judgement on account of bankruptcy, a motion for an order authorizing emergency surgery, or within the City of New York, an uncontested action for a judgment for annulment, divorce or separation commenced pursuant to article 9, 10 or 11 of the Domestic Relations Law, and an application for an extreme risk protection order.
(c) In the counties within the City of New York, when a request for judicial intervention is filed, the clerk shall require submission of a copy of the receipt of purchase of the index number provided by the County Clerk, or a written statement of the County Clerk that an index number was purchased in the action. Unless otherwise authorized by the Chief Administrator, the filing of a request for judicial intervention pursuant to this section shall cause the assignment of the action to a judge pursuant to section 202.3 of this Part. The clerk may require that a self-addressed and stamped envelope accompany the request for judicial intervention.
February 1, 2022
Appellate Division, First Department
Courts may not direct the sale of marital property held by spouses as tenants by the entirety, prior to entry of a judgment altering the legal relationship between spouses, unless the parties have consented to sell.
In Taglioni v Garcia, 200 A.D.3d 44, 157 N.Y.S.3d 7, 2021 N.Y. Slip Op. 05936 (1st Dept.,2022) the Appellate Division reversed an order which ordered the sale of the marital residence pendente lite. It observed that it is well-settled that, prior to entry of a judgment altering the legal relationship between spouses by granting divorce, separation or annulment, courts may not direct the sale of marital property held by spouses as tenants by the entirety, unless the parties have consented to sell. Moreover, courts must respect conditions placed on a party’s consent to the sale of such property, and lack the authority to direct a sale where those conditions have not been met. It found that the record did not reflect a meeting of the minds and did not contain specific terms sufficient to evince the wife’s consent to the ordered sale. The record established that, contrary to the determination of the court below, the parties did not agree to listing their jointly owned townhouse at $6 million or to the sale of the townhouse. Although the parties identified targets of their negotiations, neither the wife nor her counsel ever explicitly agreed to the contemplated sale pendente lite. As indicated during the parties’ conferences before the court and by the parties’ competing proposed orders, the wife’s negotiating targets remained at all times contingent on stipulation of other disputed material terms. Additionally, the court erred in imposing conditions on the sale of the property that were not discussed or agreed to on the record, namely, that the townhouse be listed before the repairs were made, that the price be reduced in specified amounts at set dates, and that the parties accept a purchase price offer of 95% or more of the list price.
Appellate Division, Second Department
When determining an appropriate amount of child support, a court should consider the children’s actual needs and the amount required for them to live an appropriate lifestyle.
In Hepheastou v Spaliaras, 2022 WL 164200 (2d Dept.,2022) the parties were married in May 2013, and had two children. In June 2016, the plaintiff commenced this action for a divorce. On March 22, 2017, the parties entered into a stipulation which provided that they would have equal parental access. After trial, by judgment of divorce entered October 13, 2020, the Supreme Court, inter alia, awarded sole residential and legal custody of the children to the plaintiff, calculated the defendant’s child support obligation to be $3,072 per month for the two children based upon the parties’ income in excess of the statutory cap, directed the defendant to pay 50% of the health insurance premiums for the children, directed the defendant to pay child support arrears, and awarded the plaintiff counsel fees in the sum of $30,000.
The Appellate Division observed that with respect to combined parental income exceeding that amount, the court has the discretion to apply the statutory child support percentage, or to apply the factors set forth in Domestic Relations Law § 240(1–b)(f) or to utilize “some combination of th[ose] two” methods. The court must “articulate its reason or reasons for [that determination], which should reflect a careful consideration of the stated basis for its exercise of discretion, the parties’ circumstances, and its reasoning why there [should or] should not be a departure from the prescribed percentage”. In addition to providing a record explanation for deviating or not deviating from the statutory formula, a court “must relate that record articulation” to the factors set forth in Domestic Relations Law § 240(1–b)(f). The factors include a consideration of the financial resources of the custodial and noncustodial parent, and the standard of living the child would have enjoyed if the parties had remained together. While the Supreme Court based its decision to calculate child support on combined parental income in excess of the statutory cap so as to increase the defendant’s child support obligation from $1,896.19 per month to $3,072 per month on certain statutory factors set forth in Domestic Relations Law § 240(1–b)(f), the record did not support this determination. The court stated that it considered the standard of living the children would have enjoyed had the household remained intact (see Domestic Relations Law § 240[1–b][f][3]), as well as the financial resources of the parties. The record, however, did not demonstrate that the children are not living in accordance with the lifestyle they would have enjoyed had the household remained intact. Moreover, when determining an appropriate amount of child support, a court should consider the children’s actual needs and the amount required for them to live an appropriate lifestyle. The record demonstrated that the plaintiff had no extraordinary expenses, lived rent-free at her parents’ house, reported no child care costs, and reported minimal costs for education and extracurricular activities. Under these circumstances, it found it appropriate to apply the statutory percentage to the statutory cap of $154,000, with no further child support obligation based on the combined income over that amount.
Income may be imputed based on a party’s earning capacity, as long as the court articulates the basis for imputation and the record evidence supports the calculations.
In Nosratabdi v Aroni, 198 A.D.3d 976, 157 N.Y.S.3d 49, 2021 N.Y. Slip Op. 05862 (2d Dept, 2021) the parties were married on August 8, 1999 and there were three children of the marriage. The plaintiff commenced the action for a divorce on or about June 12, 2013, and both parties agreed to have the matter heard and determined by a referee. Prior to the start of trial, the parties stipulated to the custody of the children. The defendant was awarded sole legal and residential custody of the eldest child, and the plaintiff was awarded sole legal and residential custody of the two younger children. The referee imputed an annual income of $80,000 to the defendant and calculated his monthly child support obligation to the plaintiff for the two younger children to be $1,666.77. The referee determined the plaintiff’s annual income for maintenance and child support purposes to be $23,943.31 and her monthly child support obligation for the eldest child to be $339.12. The referee also awarded the plaintiff maintenance of $1,500 per month for four years. Additionally, the referee awarded the marital residence solely to the plaintiff. The Appellate Division held that the referee’s discretionary determination to impute an annual income to the defendant of $80,000 for the purpose of calculating child support and maintenance, based upon the defendant’s prior work experience in the real estate business, as well as money received from his father, was supported by the record. However, the referee erred in determining the plaintiff’s annual income for maintenance and child support purposes to be only $23,943.31. Here, the referee failed to take into account the plaintiff’s full ability to provide support, Income may be imputed based on a party’s earning capacity, as long as the court articulates the basis for imputation and the record evidence supports the calculations. instead determining her annual income based solely on a tax return for the 2015 fiscal year, in which the plaintiff had worked only from May through December. More recent income information was available from 2016 earnings statements provided by the plaintiff’s employer, which the referee should have used to estimate the plaintiff’s income for a full year. It remitted the matter to the Supreme Court for a new determination of maintenance and child support.
Property acquired by the plaintiff after the execution of the separation agreement was separate property where defendant did not challenge the plaintiff’s testimony that she used separate funds from an inheritance to pay for the property
In Daoud v Daoud, 198 A.D.3d 952, 157 N.Y.S.3d 33, 2021 N.Y. Slip Op. 05849
(2d Dept.,2021) the parties were married on February 9, 1978. On November 15, 2007, they entered into a separation agreement, which they filed in Nassau County. In 2015, the plaintiff commenced this action for a divorce. Supreme Court entered a judgment of divorce, inter alia, awarding the plaintiff maintenance arrears of $70,239.91 and awarded the plaintiff real property located in Tabarja, Lebanon as separate property. The Appellate Division affirmed. It held that the Supreme Court correctly determined that the Tabarja property was the plaintiff’s separate property. The term “marital property” is defined by statute as “all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action” (Domestic Relations Law § 236[B][1][c]). Here, it was undisputed that the Tabarja property was acquired by the plaintiff after the execution of the separation agreement in 2007, and the defendant did not challenge the plaintiff’s testimony that she used separate funds from an inheritance to pay for the Tabarja property. Moreover, the separation agreement specifically provided that “[e]ach party shall hereafter own independently of any claim or right of the other party, all of the items of real property to which he or she now or hereafter shall have legal title.”
Appellate Division, Third Department
Summary judgment is an appropriate vehicle for resolving family offense “proceedings where no triable issues of fact exist
In Matter of Stephanie R v Walter Q, --- N.Y.S.3d ----, 2022 WL 119510, 2022 N.Y. Slip Op. 00219 (3d Dept.,2022) a family offense proceeding the Appellate Division held that Summary judgment is an appropriate vehicle for resolving family offense “proceedings where no triable issues of fact exist. Collateral estoppel comes into play when four conditions are fulfilled:(1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits. (Conason v. Megan Holding, LLC, 25 N.Y.3d 1, 17, 6 N.Y.S.3d 206, 29 N.E.3d 215 [2015])
Family Court lacks authority to order a child protective agency, such as DSS, to commence a neglect proceeding against a parent
In Matter of Donald QQ v Stephanie RR, 198 A.D.3d 1155, 156 N.Y.S.3d 467, 2021 N.Y. Slip Op. 05760 (3d Dept.,2021) a custody proceeding commenced to modify a prior order of custody the Appellate Division reversed an order of the Family Court which sua sponte directed the Department of Social Services (DSS) to commence neglect proceeding against the mother and father. The Appellate Division held that Family Court lacks authority to order a child protective agency, such as DSS, to commence a neglect proceeding against a parent; abrogating Matter of Gage II, 156 A.D.3d 1208 and Matter of Johnson v. Johnson, 279 A.D.2d 814, and in the absence of any express grant of authority by statute, Family Court erred in sua sponte directing DSS to commence a neglect proceeding against father and mother. Family Court is a court of limited jurisdiction that cannot exercise powers beyond those granted to it by statute. The relevant statute provides that a proceeding under Family Ct Act article 10 may be “originate[d]” either by “a child protective agency” or “a person on the court’s direction” (Family Ct Act § 1032[a], [b]).That authority is limited to directing only a “person” to do so, which DSS is not.
January 16, 2022
Court Rules
22 NYCRR 202.5-c Electronic Document Delivery System (new)
The Chief Administrator promulgated new section 202.5-c of the Uniform Civil Rules for the Supreme and County Courts, effective immediately, to read as follows:
§ 202.5-c. Electronic Document Delivery System.
(a) Court documents may be transmitted to the courts of the unified court system by means of the electronic document delivery system (“EDDS”) only to the extent and in the manner provided in this section. For purposes of this section, “clerk of the court” shall mean the county clerk where the court is the Supreme Court or a County Court, and the chief clerk of the court where it is any other court.
(b) How to use the EDDS. In order for a party to a court action or proceeding to use the EDDS to transmit one or more court documents to a court, such party must: (1) have use of a computer or other electronic device that permits access to the Internet, an email address and telephone number, and a scanner to digitize documents or some other device by which to convert documents into an electronically transmissible form; and (2) access a web site provided by the UCS for the transmission of the document(s) by the EDDS and, using that web site: (i) select a court to be the recipient of the document(s) and, where the Chief Administrator has authorized use of the EDDS for the filing of documents in an action or proceeding and the party is using the EDDS for such purpose, so indicate, (ii) enter certain basic information about the action or proceeding; (iii) upload the document(s) thereto in pdf or some other format authorized by the Chief Administrator of the Courts; and (iv) if a fee is required for the filing of the document(s), follow the on-line instructions for payment of that fee.
(c) When may the EDDS be used. The EDDS may be used for the transmission of documents in such courts and in such classes of cases, and for such purposes including the filing thereof with a court, as may be authorized by order of the Chief Administrator. Notwithstanding any other provision hereunder: (1) a party may not use the EDDS to transmit documents in a court action or proceeding in a court in a county in which consensual or mandatory e-filing is available in such an action or proceeding, except that EDDS may be used in such a county for the purpose of (i) converting a pending action to e-filing in accordance with section 202.5-b(2)(iv) of these rules, (ii) transmitting exhibits for a conference, hearing, or trial; or (iii) any other use as may be authorized by the Chief Administrator; (2) unless the Chief Administrator shall otherwise provide as to a particular court or class of cases, a party may only use the EDDS for the transmission of documents for a purpose other than for filing in an action or proceeding; (3) where the Chief Administrator authorizes use of the EDDS for the transmission of documents for filing with a court in an action or proceeding, any such documents shall not be deemed filed until the clerk of such court or his or her designee shall have reviewed the documents and determined (i) that they are complete, (ii) that any fee that is required before the documents may be filed has been paid, (iii) that the documents include proof of service upon the other party or parties to the action or proceeding when proof of service is required
