Important New Decisions - October 19, 2011

Maintenance Award Should Not Provide for an Automatic Increase upon the Prospective Emancipation of Each of Parties' Children

In O’Brien v O’Brien, --- N.Y.S.2d ----, 2011 WL 4839062 (N.Y.A.D. 2 Dept.) the Supreme Court found that the plaintiff former wife had an annual income of $33,262 from all sources, and the defendant former husband had an annual income of $115,747 from all sources. The parties were divorced by judgment dated November 30, 2009. In addition to child support of $2,625 per month, plus support arrears, the Supreme Court awarded the plaintiff maintenance in the amount of $1,375 per month over a period of 10 years, to increase as each of the parties' six children becomes emancipated, so that the plaintiff would receive the total sum of $4,000 per month in combined child support and maintenance for a period of 10 years, plus maintenance arrears. The Supreme Court also awarded the plaintiff an attorney's fee in the amount of $10,000. The plaintiff was to remain in the marital residence and pay all carrying costs. The Appellate Division pointed out that the awards of child support, maintenance, arrears, and an attorney's fee were based upon the Supreme Court's calculation of the parties' respective incomes. It found that Supreme Court made a mathematical error in calculating the plaintiff's income. The numbers reflecting the various components of the plaintiff's annual income, as set forth by the Supreme Court in its decision, added up to a total of $54,163, not $33,262, as erroneously stated by the Supreme Court. It pointed out that a court has the inherent power to relieve a party from judgments taken through mistake or inadvertence in the interest of justice, and directed that the awards of child support, maintenance, arrears, and an attorney's fee had to be recalculated based on the correct figures. It also found that with respect to one of the components of the defendant's annual income, the Supreme Court attributed an incorrect amount. Three of the components were supported by the record. However, the record did not support the Supreme Court's calculation and imputation of $15,376 in annual benefits from the defendant's employer for use of an automobile and cell phone, along with the employer's payment of expenses attributable to the use of those items. It observed that Domestic Relations Law 240(1-b)(b)(5)(iv)(B) provides that the Supreme Court may, in its discretion, "attribute or impute income from ... automobiles or other perquisites that are provided as part of compensation for employment to the extent [they] constitute expenditures for personal use, or ... directly or indirectly confer personal economic benefits." Here, although the defendant's employer expended the sum of $15,376 in 2007 for the defendant's use of an automobile and cell phone and related expenses, the amount attributable to income was considerably smaller in light of the defendant's testimony that only 10% of his use of the automobile, and only a "portion" of his use of the cell phone, were personal uses. The Appellate Division observed that upon remittal for recalculation, the discrepancy between the parties' incomes would necessarily be smaller than previously calculated, and, the defendant's pro rata share of the basic child support obligation had to be recalculated. It also directed that upon remittal, the Supreme Court had to recalculate the award of maintenance based upon factors including the parties' respective incomes as recalculated, their pre-divorce standard of living, and the financial resources of each, considered separately, balancing the plaintiff's needs with the defendant's ability to pay. The Appellate Division held that that the maintenance award should not provide for an automatic increase upon the prospective emancipation of each of the parties' children. Maintenance is designed to give the spouse economic independence and should continue only as long as necessary to render the recipient self-supporting. The award should meet the recipient spouse's reasonable needs while providing an appropriate incentive for the recipient to become financially independent. The amount of the maintenance award is a discretionary determination based upon a number of interrelated facts then in existence; unless a future event is imminent and measurable, an award of maintenance should not include a provision for increase or decrease upon the happening of a particular future event. Here, the provision for automatic increase of maintenance upon the emancipation of each of the parties' children ignored other factors which may come into existence at the time of each child's emancipation. Therefore, the parties' changing needs are best addressed in a future application for modification of the amount of maintenance.
The Appellate Division found, based upon the apparent discrepancy between the parties' income and other circumstances, that Supreme Court did not improvidently award the plaintiff an attorney's fee. However, the amount of the award was premised upon an erroneous calculation of the parties' respective incomes. It directed that upon remittal, the Supreme Court should recalculate an appropriate award to the plaintiff of an attorney's fee.


Deprivation of Right to Counsel In a Custody or Visitation Proceeding is Denial of a Fundamental Right Which Requires Reversal

In Matter of Rosof v Mallory, --- N.Y.S.2d ----, 2011 WL 4839081 (N.Y.A.D. 2 Dept.) at the commencement of a hearing to determine whether the father should have only supervised visitation with his daughter, the father's attorney asked to be relieved, and the father consented to her discharge. The father asked that new counsel be appointed, but the Family Court declined to do so, and the father represented himself. The Appellate Division held that the father, as a respondent in a proceeding pursuant to Family Court Act article 6, had the right to be represented by counsel. To determine whether a party is validly waiving the right to counsel, the court must conduct a "searching inquiry" in order to be reasonably certain that the party understands the dangers and disadvantages of giving up the fundamental right to counsel. Here, the Family Court conducted no inquiry at all to determine whether the father was waiving the right to counsel. Requiring the father to try the matter without the benefit of counsel impermissibly placed the Family Court's interest in preventing delay above the interests of the parents and the child, and violated the father's right to be represented by counsel. The deprivation of a party's fundamental right to counsel in a custody or visitation proceeding is a denial of due process which requires reversal, regardless of the merits of the unrepresented party's position . The matter was remitted to the Family Court for a new hearing on the mother's petition and a new determination.


Supreme Court Finds No Basis for a Presumption That a Parent's Obligation to Pay for College Is to Be Limited to the Cost of a Suny Education Unless Proven Otherwise

In Pamela T v Marc B., --- N.Y.S.2d ----, 2011 WL 4861584 (N.Y.Sup.) the Supreme Court concluded that the proposition that before a parent can be compelled to contribute towards the cost of a private college there must be a showing that a child cannot receive an adequate education at a state college is a doctrine that in many cases is harmful to the children of divorced parents, acts to discriminate against them, and is largely unworkable.
The parties were divorced on December 23, 2008. They had two sons, one who was 18 and one who was 16. The judgment of divorce incorporated a custody agreement and a stipulation of settlement by which the parties had resolved all issues of the divorce except for those concerning child support. No mention was made in either the decision, the custody agreement or the stipulation of settlement as to the payment of the children's college tuition and expenses. In 2007, the elder child was diagnosed with "moderate emotional difficulty" and learning/anxiety disorders, which necessitated certain educational accommodations. Despite this diagnosis, he graduated in 2011 from Beacon High School, a selective public high school in Manhattan. He was accepted at Syracuse University, SUNY Binghamton and SUNY Buffalo, along with a number of other schools. Syracuse, which awarded him $3,000 in financial aid, cost approximately $53,000 a year to attend as an undergraduate, while SUNY Binghamton and SUNY Buffalo cost only about $18,000 a year. Although the child visited Binghamton and gave serious consideration to going there, he ultimately decided to attend Syracuse. He was now a freshman there studying computer engineering and computer graphics.
The parties were both practicing attorneys in New York City. Plaintiff worked for
the Metropolitan Transit Authority Inspector General's Office and defendant was
self-employed as a solo practitioner. Plaintiff's 2010 federal income tax return reported adjusted gross income of $109,896. Defendant's 2010 federal income tax return reported adjusted gross income of $105,135. Plaintiff's net worth statement showed she had assets of approximately $1,230,000. Defendant's net worth statement showed he had approximately $580,000. Both plaintiff and defendant went to private undergraduate colleges and law schools, with plaintiff graduating from Northwestern University and New York University School of Law, and defendant graduating from Columbia University and Benjamin N. Cardozo School of Law.
Defendant did not oppose an order directing him to contribute to his older child's college education, but he asked the court to apply the SUNY cap and limit his responsibility to a percentage of the costs of a state university education rather than to a percentage of a private college education. Defendant's position was based on his claim that he was unable to meet the financial demands of paying for private college and on his belief that his son could receive as good an education at SUNY Binghamton as he could at Syracuse.
Supreme Court observed that Domestic Relations Law 240(1- b)(c)(7) conferred upon the courts of this state the authority to "direct a parent to contribute to a child's private college education, even in the absence of special circumstances or a voluntary agreement. The statute provides that when a court exercises its discretion to direct such a contribution from a parent, it is to do so "having regard for the circumstances of the case and the parties, the best interests of the child, and the requirements of justice." Case law augmented the provisions of DRL 240(1-b)(c)(7) by setting forth specific factors that are to be considered in determining whether to award college expenses. These factors include the educational background of the parents and their financial ability to provide the necessary funds, the child's academic ability and endeavors, and the type of college that would be most suitable for the child. (See Rosado v. Hughes, 23 AD3d 318 (1st Dept 2005); Naylor v. Gastler, 48 AD3d 951 (3d Dept 2008); Reiss v. Reiss, 56 AD3d 1293 (4th Dept 2008).
The Court observed that DRL 240(1-b)(c)(7) does not provide for is a SUNY cap. The SUNY cap is a concept that has been judicially created by way of a string of decisions rendered since the enactment of the statute. The problem with these cases was that they provided little in the way of instruction as to when a SUNY cap might be properly applied over the objection of the parent who is seeking an award for college
expenses. The Supreme Court found that Berliner v. Berliner, 33 AD3d 745, 749 (2d Dept 2006) was instructive because the Second Department’s statement that there "is no basis in this record" for imposing the SUNY cap implied that the burden falls on the proponent of the cap to demonstrate that it is warranted. The inference to be drawn is that there is no presumption that a parent's obligation to pay for college is to be limited to the cost of a SUNY education unless proven otherwise; if anything, the presumption goes the other direction. It was also instructive because the decision's reference to the "so-called SUNY cap' "can be seen as an indication that even the Second Department views the SUNY cap as something less than an established doctrine firmly ensconced in the fabric of family law.
Supreme Court rejected defendants argument that plaintiff be required to prove that Syracuse was a better school than SUNY Binghamton in order for him to be required to pay Syracuse's higher expenses. He noted that it is difficult to conceive of a workable procedure, let alone a methodology, for a court to make a finding that one college is "better" than another. He stated that the real issue is what college or university is the best for the individual child in question in the ways that matter most to that particular child. The Court found that it had been shown that there was ample reason to support the child's choice of Syracuse, irrespective of whether it is ranked lower, higher or the same as SUNY Binghamton or any other SUNY school. Provided that the funds are available to finance the child's education, the fact that Syracuse was a private school and cost more than a public school was not a reason to interfere with the child going to the school he chose and he wanted to attend. This was particularly so in light of the fact that both his parents went to private colleges. One of the
factors to be considered when making a determination under DRL 240(1-b)(c)(7) is the parents educational background. Inasmuch as plaintiff attended Northwestern and defendant attended Columbia, it could reasonably be assumed that there would exist an expectation in the family, and in the child himself, that he too could attend a private college.
Having found that the child's academic ability and endeavors, the type of college
that would be most suitable for him, and the educational background of the parents
were all factors that called for plaintiff to contribute to his son's education at
Syracuse University, the court had to consider the defendant's ability to pay. It was defendant's position that even though plaintiff may have the means to pay the high cost of their son attending Syracuse, he lacked the means to do so. Consequently, he contended that he should have to pay no more than $9,000 a year towards his son's education, an amount that is roughly 50% of the present annual cost of a SUNY school.
The court rejected defendant's contention as to his inability to pay a significant
share of the child's actual educational expenses being incurred at Syracuse. It was true that plaintiff has considerable more savings than defendant and that she had a pension plan through her employment. But it was equally true that defendant's net income the past year was over $100,000, which was only about $5,000 less than plaintiff's net income for the same period, and that he benefitted from the substantial tax deductions and write offs that come from being self-employed. Also, defendant, although remarried for a number of years, had chosen to keep a second apartment in addition to the residence he shared with his new wife. Defendant had paid and continued to pay a very small amount in basic child support and child support add-ons. If defendant's child support obligation were to be recalculated using his 2010 income, it would be far higher than the $686 monthly that he paid.
Supreme Court held that there was no basis to impose the SUNY cap, to the extent that it should be imposed at all, where the party seeking to invoke the cap has the financial ability to contribute towards the actual amount of his or her child's college expenses. (Citing R.E. v. S.E., 27 Misc.3d 1216(A); Bonnie B. v. Michael B., 6 Misc.3d 1004(A), 2004 WL 3050804 (Sup Ct, Suffolk County 2004). It found that the defendant had the income and the assets, as well as the ability to keep producing substantial income through his law practice, to make a significant contribution to his sons's college education. Although defendant's contribution should be less than plaintiff's, based on the difference between their net assets, and in particular what each of them had available for eventual retirement, that contribution should not be subject to some artificial construct like the SUNY cap. Rather, it should be based, as with all other child support obligations, on the respective finances of the parties. On this basis, the court concluded that defendant shall be obligated to contribute 40% of the total cost of the elder child attending Syracuse University, with those costs to include tuition, room and board, fees and books.
The Court observed that it has the discretion to direct parents to pay the
costs of their children's college expenses when the separation agreement or other
stipulation between the parents is silent in this respect. However, such a directive is premature when college is several years away, the choice of college and the cost of tuition are uncertain, and the child's academic interests and abilities are not supported by evidence. (Citing Gilkes v. Gilkes, 150 A.D.2d 200, 201 (1st Dept 1989); see also LaBombardi v. LaBombardi, 220 A.D.2d 642, 644 (2d Dept 1995). Here, college was more than a year and a half away for the younger child. It was therefore premature and unduly speculative to attempt to assess what the child's plans are with regard to college and the what the costs will be. As a result, plaintiff's application for this relief was denied without prejudice to renew at a subsequent date when the child has committed to attend college and the costs of attendance are supported by evidence.

Important New Decisions - October 14, 2011

Supreme Court May Not Determine Whether the Marriage Is Irretrievably Broken until All Ancillary Issues Are Resolved.

In Schiffer v Schiffer, --- N.Y.S.2d ----, 2011 WL 4790060 (N.Y.Sup.) plaintiff husband moved for an order directing that summary judgment be granted in his favor of divorce under Domestic Relations Law 170 (7). The defendant wife opposed the application and cross-moved for summary judgment dismissing the complaint. The parties were married in Massachusetts on March 25, 1990 and had three unemancipated children of the marriage. On November 29, 2010, Mr. Schiffer commenced the action for divorce, claiming irretrievable breakdown of the marriage for a period of more than six months prior to the commencement of the action. On December 21, 2010, Mrs. Schiffer served her verified answer, contesting these allegations, specifically claiming that Mr. Schiffer's actions belied his claims that the marriage was irretrievably broken. The Supreme Court observed that Domestic Relations Law § 170 [7] allows parties to seek a judgment of divorce when "the relationship between the husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath" also provides that "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 this judgment of divorce".
The Supreme Court agreed with the wife’s argument that the husband was not entitled to summary judgment since no judgment of divorce can be made unless and until the economic and custodial issues are determined or resolved by the parties. The statute clearly states that a judgment may only be granted after economic and custodial issues were resolved. In this case, all of the conditions of the statute had not been met since the economic and custodial issues were yet to be addressed. Mr. Schiffer had failed to meet his prima facie burden, and his motion for summary judgment was denied.
Mrs. Schiffer's motion for summary judgment was also denied, but for a different reason. Supreme Court observed that in Strack v. Strack (31 Misc.3d 258 [Sup Ct, Essex County 2011] ), Justice Muller held that the "determination of whether a breakdown of a marriage is irretrievable is a question to be determined by the finder of fact." This holding demonstrably agreed with fundamental concepts of due process and comported with similar interpretations of no-fault statutes from our sister states. Since the sole means of procuring a divorce in New York is by judicial process (N.Y. Const, art I, s 9), precluding a party from contesting a ground for divorce "must be regarded as the equivalent of denying [him or her] an opportunity to be heard ...and in the absence of a sufficient countervailing justification for the State's action, a denial of due process". A contrary finding would merely reduce the court to a rubber stamp whenever presented with an action for divorce under Domestic Relations Law 170 (7). While Mrs. Schiffer had established that the ancillary issues were not resolved and that her marriage to Mr. Schiffer had not broken down irretrievably, Mr. Schiffer raised a triable issue of fact that the marriage was irretrievably broken for at least six months. The proof bared by the parties sufficed to establish a true issue of fact as to whether this marriage was irretrievably broken, which the finder of fact would undoubtedly resolve after the other issues were resolved.


A Court May Not Delegate to a Parenting Coordinator the Authority to Resolve Issues Affecting the Best Interests of the Children

In Silbowitz v Silbowitz, --- N.Y.S.2d ----, 2011 WL 4599852 (N.Y.A.D. 2 Dept.) the Appellate Division affirmed an order of the Supreme Court which, in effect, granted the defendant former husband's motion to appoint a parenting coordinator to assist the parties in implementing the terms of their existing child custody and visitation arrangement provided for in the parties' stipulation dated October 22, 2007.
It observed 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. Here, despite the expansive scope of the issues entrusted to the parenting coordinator by the Supreme Court's order, his power was properly limited to implementing the terms of the existing child custody and visitation arrangement provided for in the parties' stipulation dated October 22, 2007, subject to the Supreme Court's oversight. Although the parenting coordinator was empowered to issue a written decision resolving a conflict where he was unable to broker an agreement between the parties, the Supreme Court's order also provided that the parties may seek to have the parenting coordinator's decision so-ordered by the Supreme Court and that they "retain their right to return to Court and seek a modification of their parenting plan at any time." Accordingly, the Supreme Court properly limited the role of the parenting coordinator and properly provided that his resolutions remained subject to court oversight.
The plaintiff also contended that the order insufficiently protected the confidential and privileged information of the parties and the children because it required the parties to execute authorizations and releases allowing the parenting coordinator to obtain information which was otherwise confidential or privileged. However, the order required that the parenting coordinator maintain the confidentiality of the information and when read as a whole, clearly limited his authority to request authorizations or releases and use information only in furtherance of his duty to mediate between the parties in the implementation of their parenting plan. Accordingly, no further limitation was necessary.


Supreme Court Properly Declined to Imply a Term Which the Parties Did Not Insert into Their Stipulation, for the Purpose of Determining the Contempt Motion. Court Has Discretion to Decide If it Will Consider New Argument in Reply Papers.

In Penavic v Penavic, --- N.Y.S.2d ----, 2011 WL 4600442 (N.Y.A.D. 2 Dept.) the the plaintiff moved, pursuant to Judiciary Law 756 to hold the defendant in civil contempt. Supreme Court denied the motion. The Appellate Divison affirmed. It held that to prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged with contempt willfully violated a clear and unequivocal mandate of a court's order, with knowledge of that order's terms, thereby prejudicing the movant's rights. Supreme Court providently exercised its discretion in denying her motion to hold the defendant in contempt for failing to remove her name from a home equity line of credit ( HELOC) or closing it. While the plaintiff was aware of the HELOC at the time that she executed the stipulation, no provision was included in the stipulation requiring that her name be removed from it or that it be closed, even though the defendant was precluded from continuing to use the HELOC pursuant to the provision which prohibited him from incurring additional debt upon the plaintiff's credit. Since the terms of the stipulation with respect to whether the HELOC had to be closed were unambiguous, the Supreme Court properly declined to imply a term which the parties did not insert into the stipulation, for the purpose of determining the contempt motion. The plaintiff raised, for the first time in her reply papers, the argument that the defendant was also in contempt of the judgment by increasing the balance of the HELOC from $25,000, the amount of the balance at the time that the parties executed the stipulation, to $750,000, which he disclosed in his affidavit opposing the plaintiff's motion. The Appellate Division held that it was within the Supreme Court's discretion to decide if it would consider this new argument. Inasmuch as the plaintiff did not address this provision in her motion papers and relied solely upon the provisions concerning the acknowledgment that the bills or accounts for the former marital residence were solely in the husband's individual name as the basis for her motion, Supreme Court properly exercised its discretion to disregard that argument in connection with the motion before it (citing Matter of Allstate Ins. Co. v. Dawkins, 52 AD3d 826, 827).
Authors Note: In Matter of Allstate Ins. Co. v. Dawkins, the Appellate Division said: “The function of reply papers is to address arguments made in opposition to the position taken by the movant, not to permit the movant to introduce new arguments or new grounds for the requested relief (see Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677 [2005]; Matter of TIG Ins. Co. v Pellegrini, 258 AD2d 658 [1999]). Further, Dawkins was not afforded an opportunity to address the new argument (see Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677 [2005]; Matter of TIG Ins. Co. v Pellegrini, 258 AD2d 658 [1999]).”


Court May Not Order a Parent Undergo Counseling or Treatment as a Condition of Future Visitation or Re-application for Visitation Rights but May Direct a Party to Submit to a Mental Health Evaluation for Use in Any Future Determination of Visitation.

In Matter of Smith ex rel Hunter v Dawn F.B., --- N.Y.S.2d ----, 2011 WL 4600469 (2d Dept 2011) Family Court granted the petition of the attorney for the child alleging that the mother violated an order of custody and visitation, prohibited her from having
any contact with her son, directed that she submit to a mental health evaluation,
directed her to follow treatment recommendations resulting from that evaluation,
and conditioned her application for resumption of visitation upon her compliance
with treatment, including medication, recommended by a mental health professional.
The Appellate Division modified the order by deleting the provision conditioning the mother's application for resumption of visitation upon her compliance with treatment, including medication, recommended by a mental health professional. It found that Family Court's determination that it was in the child's best interest to suspend supervised visitation and prohibit all contact with the mother had a sound and substantial basis in the record. The mother, by her own admission, violated the express terms of the Family Court's previous order, which only permitted visitation supervised by designated individuals, by having unsupervised contact with the child at two separate little league baseball games. Moreover, the mother contributed to certain events at a recent therapeutic visit which adversely affected the child and undermined the progress of the therapeutic visitation.
The Appellate Division pointed out that a court may not order that a parent undergo counseling or treatment as a condition of future visitation or re-application for visitation rights, but may only direct a party to submit to counseling or treatment as a component of visitation. Here, the Family Court improperly conditioned the mother's application for resumption of visitation upon her compliance with treatment, including medication, recommended by a mental health professional. However, the Family Court properly directed the mother to submit to a mental health evaluation for use in any future determination of visitation.



Family Court Lacks Subject Matter Jurisdiction over Article 8 Proceeding Where There Is No Intimate Relationship Between Parties

In Matter of Riedel v Vasquez, --- N.Y.S.2d ----, 2011 WL 4600481 (N.Y.A.D. 2 Dept.), the Appellate Division affirmed an order of the Family Court which, without a hearing, granted Respondents motion to dismiss the petition for lack of subject matter jurisdiction. On August 10, 2010, the petitioner commenced an Article 8 proceeding seeking an order of protection against Milagros Carranza Vasquez (respondent), who was the estranged wife of the petitioner's live-in boyfriend. The petitioner had two children with the boyfriend, and the respondent had one child with him. The petitioner alleged that she and the respondent, who did not reside together, had an "intimate relationship" within the meaning of Family Court Act 812(1). The Family Court, without a hearing, dismissed the petition on the ground of lack of subject matter jurisdiction. The Appellate Division affirmed. It pointed out that the Family Court is a court of limited subject matter jurisdiction, and "cannot exercise powers beyond those granted to it by statute" (Matter of Johna M.S. v. Russell E.S., 10 N.Y.3d 364). 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. Relevant factors 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 parties had no direct relationship and were only connected through a third party, who was the biological father of the parties' respective children. The parties never resided together and did not take care of each other's children. The respondent's contact with the petitioner and/or her children had been minimal. Given these undisputed facts, no hearing was required, as the Family Court possessed sufficient information to determine that the parties were not and never had been in an "intimate relationship" as defined by Family Court Act s 812(1)(e).


Family Court Lacked Exclusive, Continuing Jurisdiction to Modify Custody Order Where Neither the Child Nor the Father Maintained a Significant Connection with New York, and Substantial Evidence Regarding the Child's Present and Future Welfare Was No Longer Available in this State.

In Knight v Morgan, --- N.Y.S.2d ----, 2011 WL 4600549 (N.Y.A.D. 2 Dept.) the the Family Court issued an order of custody on consent, on August 24, 2009, in connection with the father's petition seeking joint custody of the subject child with the mother, awarding joint legal custody to both parents, with primary residential custody to the father. Accordingly, the child, who was born in 2000, and had resided with his mother in New York since his birth, moved to California in September 2009 to live with his father. After moving to California with the father, the child was diagnosed by a psychologist in California with attention deficit hyperactivity disorder, oppositional defiant disorder, post-traumatic stress disorder and, possibly, a bipolar disorder. The child received treatment from healthcare providers in California, and was not permitted to travel until his condition was stabilized. The child had not returned to New York since moving to California. In December 2009 the mother filed a cross petition in the Family Court, to modify the prior order of custody so as to award her sole custody of the child, in which she alleged that the father had falsely accused her of abusing the child. In January 2010 the father separately cross-petitioned to modify the prior custody order so as to award him sole custody of the child. Subsequently, in May 2010, while both cross petitions were pending, the father moved, inter alia, to dismiss the mother's cross petition for lack of subject matter jurisdiction. After a hearing on the issue of jurisdiction, the Family Court granted that branch of the father's motion which was to dismiss the mother's cross petition on that ground. The Family Court did not address the father's separate cross petition.
The Appellate Division reversed. It held that the Family Court correctly determined that it lacked exclusive, continuing jurisdiction pursuant to Domestic Relations Law 76-a(1), since neither the child nor the father maintained a significant connection with New York, and substantial evidence regarding the child's present and future welfare was no longer available in this State (Domestic Relations Law 76-a[1][a]). However, the Family Court had jurisdiction to hear the mother's cross petition for modification pursuant to Domestic Relations Law 76-a(2) since it would have had jurisdiction for an initial child custody determination under Domestic Relations Law 76(1)(a). New York was the child's "home state" within the six months immediately preceding the commencement of this proceeding, and the mother continued to reside in this State. The matter was be remitted to the Family Court for further proceedings on the cross petitions.


New York Does Not Have Subject Matter Jurisdiction Where it Is Not State in Which Child Lived for at Least Six Consecutive Months Before Commencement of Custody Proceeding

In Jablonsky-Urso v Urso, --- N.Y.S.2d ----, 2011 WL 4600550 (N.Y.A.D. 2 Dept.) the Appellate Division held that Family Court properly granted the father's motion to dismiss the mother’s petition for custody of the parties' son for lack of subject matter jurisdiction. Domestic Relations Law 75-a (7) defines a child's home state as "the state in which a child lived with a parent ... for at least six consecutive months immediately before the commencement of a child custody proceeding". Under the Uniform Child Custody Jurisdiction and Enforcement Act, "[h]ome state jurisdiction is paramount and whether to accept jurisdiction is a home state prerogative" (Matter of Navarrete v. Wyatt, 52 A.D.3d at 836, 861 N.Y.S.2d 393). Here, the Family Court properly determined that New York was not the child's home state and, therefore, that New York did not have jurisdiction over this custody dispute (see Domestic Relations Law 76). However, it held that the Family Court erred in refusing to exercise temporary emergency jurisdiction over the family offense petition (see Domestic Relations Law 76-c) and in summarily dismissing the family offense petition upon its finding that the allegations contained in the mother's family offense petition were insufficient to sustain a family offense. The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court and the allegations asserted in a petition seeking the issuance of an order of protection must be supported by a fair preponderance of the evidence. The Family Court improperly determined that the mother failed to demonstrate that the father possessed the intent required to sustain any of the family offenses alleged in the petition, as it did so without the benefit of a hearing. Based on the foregoing, that branch of the father's motion which was to dismiss the family offense petition had to be denied and the matter remitted to the Family Court, for a fact-finding hearing and a determination of the family offense petition with respect to the allegations contained therein.

Important New Decisions - October 13, 2011

Supreme Court May Not Determine Whether the Marriage Is Irretrievably Broken until All Ancillary Issues Are Resolved.

In Schiffer v Schiffer, --- N.Y.S.2d ----, 2011 WL 4790060 (N.Y.Sup.) plaintiff husband moved for an order directing that summary judgment be granted in his favor of divorce under Domestic Relations Law 170 (7). The defendant wife opposed the application and cross-moved for summary judgment dismissing the complaint. The parties were married in Massachusetts on March 25, 1990 and had three unemancipated children of the marriage. On November 29, 2010, Mr. Schiffer commenced the action for divorce, claiming irretrievable breakdown of the marriage for a period of more than six months prior to the commencement of the action. On December 21, 2010, Mrs. Schiffer served her verified answer, contesting these allegations, specifically claiming that Mr. Schiffer's actions belied his claims that the marriage was irretrievably broken. The Supreme Court observed that Domestic Relations Law § 170 [7] allows parties to seek a judgment of divorce when "the relationship between the husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath" also provides that "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 this judgment of divorce".
The Supreme Court agreed with the wife’s argument that the husband was not entitled to summary judgment since no judgment of divorce can be made unless and until the economic and custodial issues are determined or resolved by the parties. The statute clearly states that a judgment may only be granted after economic and custodial issues were resolved. In this case, all of the conditions of the statute had not been met since the economic and custodial issues were yet to be addressed. Mr. Schiffer had failed to meet his prima facie burden, and his motion for summary judgment was denied.
Mrs. Schiffer's motion for summary judgment was also denied, but for a different reason. Supreme Court observed that in Strack v. Strack (31 Misc.3d 258 [Sup Ct, Essex County 2011] ), Justice Muller held that the "determination of whether a breakdown of a marriage is irretrievable is a question to be determined by the finder of fact." This holding demonstrably agreed with fundamental concepts of due process and comported with similar interpretations of no-fault statutes from our sister states. Since the sole means of procuring a divorce in New York is by judicial process (N.Y. Const, art I, s 9), precluding a party from contesting a ground for divorce "must be regarded as the equivalent of denying [him or her] an opportunity to be heard ...and in the absence of a sufficient countervailing justification for the State's action, a denial of due process". A contrary finding would merely reduce the court to a rubber stamp whenever presented with an action for divorce under Domestic Relations Law 170 (7). While Mrs. Schiffer had established that the ancillary issues were not resolved and that her marriage to Mr. Schiffer had not broken down irretrievably, Mr. Schiffer raised a triable issue of fact that the marriage was irretrievably broken for at least six months. The proof bared by the parties sufficed to establish a true issue of fact as to whether this marriage was irretrievably broken, which the finder of fact would undoubtedly resolve after the other issues were resolved.


A Court May Not Delegate to a Parenting Coordinator the Authority to Resolve Issues Affecting the Best Interests of the Children

In Silbowitz v Silbowitz, --- N.Y.S.2d ----, 2011 WL 4599852 (N.Y.A.D. 2 Dept.) the Appellate Division affirmed an order of the Supreme Court which, in effect, granted the defendant former husband's motion to appoint a parenting coordinator to assist the parties in implementing the terms of their existing child custody and visitation arrangement provided for in the parties' stipulation dated October 22, 2007. It observed 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. Here, despite the expansive scope of the issues entrusted to the parenting coordinator by the Supreme Court's order, his power was properly limited to implementing the terms of the existing child custody and visitation arrangement provided for in the parties' stipulation dated October 22, 2007, subject to the Supreme Court's oversight. Although the parenting coordinator was empowered to issue a written decision resolving a conflict where he was unable to broker an agreement between the parties, the Supreme Court's order also provided that the parties may seek to have the parenting coordinator's decision so-ordered by the Supreme Court and that they "retain their right to return to Court and seek a modification of their parenting plan at any time." Accordingly, the Supreme Court properly limited the role of the parenting coordinator and properly provided that his resolutions remained subject to court oversight.
The plaintiff also contended that the order insufficiently protected the confidential and privileged information of the parties and the children because it required the parties to execute authorizations and releases allowing the parenting coordinator to obtain information which was otherwise confidential or privileged. However, the order required that the parenting coordinator maintain the confidentiality of the information and when read as a whole, clearly limited his authority to request authorizations or releases and use information only in furtherance of his duty to mediate between the parties in the implementation of their parenting plan. Accordingly, no further limitation was necessary.


Supreme Court Properly Declined to Imply a Term Which the Parties Did Not Insert into Their Stipulation, for the Purpose of Determining the Contempt Motion. Court Has Discretion to Decide If it Will Consider New Argument in Reply Papers.

In Penavic v Penavic, --- N.Y.S.2d ----, 2011 WL 4600442 (N.Y.A.D. 2 Dept.) the the plaintiff moved, pursuant to Judiciary Law 756 to hold the defendant in civil contempt. Supreme Court denied the motion. The Appellate Divison affirmed. It held that to prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged with contempt willfully violated a clear and unequivocal mandate of a court's order, with knowledge of that order's terms, thereby prejudicing the movant's rights. Supreme Court providently exercised its discretion in denying her motion to hold the defendant in contempt for failing to remove her name from a home equity line of credit ( HELOC) or closing it. While the plaintiff was aware of the HELOC at the time that she executed the stipulation, no provision was included in the stipulation requiring that her name be removed from it or that it be closed, even though the defendant was precluded from continuing to use the HELOC pursuant to the provision which prohibited him from incurring additional debt upon the plaintiff's credit. Since the terms of the stipulation with respect to whether the HELOC had to be closed were unambiguous, the Supreme Court properly declined to imply a term which the parties did not insert into the stipulation, for the purpose of determining the contempt motion. The plaintiff raised, for the first time in her reply papers, the argument that the defendant was also in contempt of the judgment by increasing the balance of the HELOC from $25,000, the amount of the balance at the time that the parties executed the stipulation, to $750,000, which he disclosed in his affidavit opposing the plaintiff's motion. The Appellate Division held that it was within the Supreme Court's discretion to decide if it would consider this new argument. Inasmuch as the plaintiff did not address this provision in her motion papers and relied solely upon the provisions concerning the acknowledgment that the bills or accounts for the former marital residence were solely in the husband's individual name as the basis for her motion, Supreme Court properly exercised its discretion to disregard that argument in connection with the motion before it (citing Matter of Allstate Ins. Co. v. Dawkins, 52 AD3d 826, 827).
Authors Note: In Matter of Allstate Ins. Co. v. Dawkins, the Appellate Division said: “The function of reply papers is to address arguments made in opposition to the position taken by the movant, not to permit the movant to introduce new arguments or new grounds for the requested relief (see Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677 [2005]; Matter of TIG Ins. Co. v Pellegrini, 258 AD2d 658 [1999]). Further, Dawkins was not afforded an opportunity to address the new argument (see Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677 [2005]; Matter of TIG Ins. Co. v Pellegrini, 258 AD2d 658 [1999]).”


Court May Not Order a Parent Undergo Counseling or Treatment as a Condition of Future Visitation or Re-application for Visitation Rights but May Direct a Party to Submit to a Mental Health Evaluation for Use in Any Future Determination of Visitation.

In Matter of Smith ex rel Hunter v Dawn F.B., --- N.Y.S.2d ----, 2011 WL 4600469 (2d Dept 2011) Family Court granted the petition of the attorney for the child alleging that the mother violated an order of custody and visitation, prohibited her from having any contact with her son, directed that she submit to a mental health evaluation, directed her to follow treatment recommendations resulting from that evaluation,
and conditioned her application for resumption of visitation upon her compliance with treatment, including medication, recommended by a mental health professional.
The Appellate Division modified the order by deleting the provision conditioning the mother's application for resumption of visitation upon her compliance with treatment, including medication, recommended by a mental health professional. It found that Family Court's determination that it was in the child's best interest to suspend supervised visitation and prohibit all contact with the mother had a sound and substantial basis in the record. The mother, by her own admission, violated the express terms of the Family Court's previous order, which only permitted visitation supervised by designated individuals, by having unsupervised contact with the child at two separate little league baseball games. Moreover, the mother contributed to certain events at a recent therapeutic visit which adversely affected the child and undermined the progress of the therapeutic visitation.
The Appellate Division pointed out that a court may not order that a parent undergo counseling or treatment as a condition of future visitation or re-application for visitation rights, but may only direct a party to submit to counseling or treatment as a component of visitation. Here, the Family Court improperly conditioned the mother's application for resumption of visitation upon her compliance with treatment, including medication, recommended by a mental health professional. However, the Family Court properly directed the mother to submit to a mental health evaluation for use in any future determination of visitation.


Family Court Lacks Subject Matter Jurisdiction over Article 8 Proceeding Where There Is No Intimate Relationship Between Parties


In Matter of Riedel v Vasquez, --- N.Y.S.2d ----, 2011 WL 4600481 (N.Y.A.D. 2 Dept.), the Appellate Division affirmed an order of the Family Court which, without a hearing, granted Respondents motion to dismiss the petition for lack of subject matter jurisdiction. On August 10, 2010, the petitioner commenced an Article 8 proceeding seeking an order of protection against Milagros Carranza Vasquez (respondent), who was the estranged wife of the petitioner's live-in boyfriend. The petitioner had two children with the boyfriend, and the respondent had one child with him. The petitioner alleged that she and the respondent, who did not reside together, had an "intimate relationship" within the meaning of Family Court Act 812(1). The Family Court, without a hearing, dismissed the petition on the ground of lack of subject matter jurisdiction.
The Appellate Division affirmed. It pointed out that the Family Court is a court of limited subject matter jurisdiction, and "cannot exercise powers beyond those granted to it by statute" (Matter of Johna M.S. v. Russell E.S., 10 N.Y.3d 364). 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. Relevant factors 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 parties had no direct relationship and were only connected through a third party, who was the biological father of the parties' respective children. The parties never resided together and did not take care of each other's children. The respondent's contact with the petitioner and/or her children had been minimal. Given these undisputed facts, no hearing was required, as the Family Court possessed sufficient information to determine that the parties were not and never had been in an "intimate relationship" as defined by Family Court Act s 812(1)(e).


Family Court Lacked Exclusive, Continuing Jurisdiction to Modify Custody Order Where Neither the Child Nor the Father Maintained a Significant Connection with New York, and Substantial Evidence Regarding the Child's Present and Future Welfare Was No Longer Available in this State.

In Knight v Morgan, --- N.Y.S.2d ----, 2011 WL 4600549 (N.Y.A.D. 2 Dept.) the
the Family Court issued an order of custody on consent, on August 24, 2009, in connection with the father's petition seeking joint custody of the subject child with the mother, awarding joint legal custody to both parents, with primary residential custody to the father. Accordingly, the child, who was born in 2000, and had resided with his mother in New York since his birth, moved to California in September 2009 to live with his father. After moving to California with the father, the child was diagnosed by a psychologist in California with attention deficit hyperactivity disorder, oppositional defiant disorder, post-traumatic stress disorder and, possibly, a bipolar disorder. The child received treatment from healthcare providers in California, and was not permitted to travel until his condition was stabilized. The child had not returned to New York since moving to California. In December 2009 the mother filed a cross petition in the Family Court, to modify the prior order of custody so as to award her sole custody of the child, in which she alleged that the father had falsely accused her of abusing the child. In January 2010 the father separately cross-petitioned to modify the prior custody order so as to award him sole custody of the child. Subsequently, in May 2010, while both cross petitions were pending, the father moved, inter alia, to dismiss the mother's cross petition for lack of subject matter jurisdiction. After a hearing on the issue of jurisdiction, the Family Court granted that branch of the father's motion which was to dismiss the mother's cross petition on that ground. The Family Court did not address the father's separate cross petition.
The Appellate Division reversed. It held that the Family Court correctly determined that it lacked exclusive, continuing jurisdiction pursuant to Domestic Relations Law 76-a(1), since neither the child nor the father maintained a significant connection with New York, and substantial evidence regarding the child's present and future welfare was no longer available in this State (Domestic Relations Law 76-a[1][a]). However, the Family Court had jurisdiction to hear the mother's cross petition for modification pursuant to Domestic Relations Law 76-a(2) since it would have had jurisdiction for an initial child custody determination under Domestic Relations Law 76(1)(a). New York was the child's "home state" within the six months immediately preceding the commencement of this proceeding, and the mother continued to reside in this State. The matter was be remitted to the Family Court for further proceedings on the cross petitions.


New York Does Not Have Subject Matter Jurisdiction Where it Is Not State in Which Child Lived for at Least Six Consecutive Months Before Commencement of Custody Proceeding

In Jablonsky-Urso v Urso, --- N.Y.S.2d ----, 2011 WL 4600550 (N.Y.A.D. 2 Dept.) the Appellate Division held that Family Court properly granted the father's motion to dismiss the mother’s petition for custody of the parties' son for lack of subject matter jurisdiction. Domestic Relations Law 75-a (7) defines a child's home state as "the state in which a child lived with a parent ... for at least six consecutive months immediately before the commencement of a child custody proceeding". Under the Uniform Child Custody Jurisdiction and Enforcement Act, "[h]ome state jurisdiction is paramount and whether to accept jurisdiction is a home state prerogative" (Matter of Navarrete v. Wyatt, 52 A.D.3d at 836, 861 N.Y.S.2d 393). Here, the Family Court properly determined that New York was not the child's home state and, therefore, that New York did not have jurisdiction over this custody dispute (see Domestic Relations Law 76). However, it held that the Family Court erred in refusing to exercise temporary emergency jurisdiction over the family offense petition (see Domestic Relations Law 76-c) and in summarily dismissing the family offense petition upon its finding that the allegations contained in the mother's family offense petition were insufficient to sustain a family offense. The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court and the allegations asserted in a petition seeking the issuance of an order of protection must be supported by a fair preponderance of the evidence. The Family Court improperly determined that the mother failed to demonstrate that the father possessed the intent required to sustain any of the family offenses alleged in the petition, as it did so without the benefit of a hearing. Based on the foregoing, that branch of the father's motion which was to dismiss the family offense petition had to be denied and the matter remitted to the Family Court, for a fact-finding hearing and a determination of the family offense petition with respect to the allegations contained therein.

Important New Decisions - October 3, 2011

First Department Establishes Rules Related to Obligation of Nonparty to Produce Electronically Stored Information Deleted Through Normal Business Operations

In Tener v Cremer, --- N.Y.S.2d ----, 2011 WL 4389170 (N.Y.A.D. 1 Dept.) the First Department addressed the obligation of a nonparty to produce electronically stored information (ESI) deleted through normal business operations. The action underlying this discovery dispute concerned a statement about plaintiff that someone posted on a website known as Vitals.com on April 12, 2009. Plaintiff claimed this statement defamed her. Plaintiff claimed that through discovery she managed to trace the Internet protocol (IP) address of the computer from which the allegedly defamatory post originated "to a computer in the custody and control of New York University." This computer had accessed the Internet through a portal located at Bellevue Medical Center and registered to nonparty New York University Langone Medical Center. According to NYU's Chief Information Security Officer, NYU had installed the Internet portal at Bellevue for the convenience of its residents who trainedd there. The portal is a network address translation (NAT) portal that is essentially a switchboard through which a person can access the Internet. While only NYU personnel with proper security codes can gain access to NYU's computer system and medical records, anyone using a computer plugged into an ethernet outlet at Bellevue can access other web sites through the NYU portal. On April 30, 2010, plaintiff served a subpoena on NYU seeking the identity of all persons who accessed the Internet on April 12, 2009, via the IP address plaintiff previously identified. With the subpoena, plaintiff served a preservation letter advising NYU that the identity of the person who posted the remarks was at issue and that NYU should halt any normal business practices that would destroy that information. When NYU did not produce the information, plaintiff moved for contempt. In opposition to plaintiff's contempt motion, NYU's Chief Information Security Officer stated that "[c]omputers that simply access the web through NYU's portal appear as a text file listing that is automatically written over every 30 days. NYU does not possess the technological capability or software, if such exists, to retrieve a text file created more than a year ago and 'written over' at least 12 times." Plaintiff, in reply, submitted an affidavit from a forensic computer expert opining that NYU could still access the information using software designed to retrieve deleted information. The expert stated that "the term 'written over' is deceptive" because what really occurs is that " 'old' information or data is typically allocated to 'free space' within the system." Plaintiff's expert suggested using "X-Rays Forensic" or "Sleuth Kit" to retrieve the information from unallocated space.
Supreme Court denied the contempt motion in part because it found that NYU did not have the ability to produce the materials plaintiff demanded and that "this allegation is unrefuted as a reply affidavit contradicting such allegation has not been supplied." The Appellate Division held that Supreme Court was incorrect. In its papers in opposition to the motion, NYU offered no evidence that it made any effort at all to access the data, apparently because it believed it could not, as a nonparty, be required to install forensic software on its system. However, the cases that NYU cites to support its assertion that it need not install forensic software were outdated. The most recent was from 1993, nearly 20 years ago (see Carrick Realty Corp. v. Flores, 157 Misc.2d 868, 598 N.Y.S.2d 903 (Civ Ct, New York County 1993). Thus, there were several unanswered questions regarding NYU's ability to produce the requested documents.
The Appellate Division held that the party moving for civil contempt arising out of noncompliance with a subpoena duces tecum bears the burden of establishing, by clear and convincing evidence, that the subpoena has been violated and that "the party from whom the documents were sought had the ability to produce them" (Yalkowsky v. Yalkowsky, 93 A.D.2d 834, 835 [1983]; see also Gray v. Giarrizzo, 47 A.D.3d 765, 766 [2008] ). In this day and age the discovery of ESI is commonplace. Although the CPLR is silent on the topic, the Uniform Rules of the Trial Courts and several courts have addressed the discovery of ESI and have provided working guidelines that are useful to judges and practitioners. The Commercial Division for Supreme Court, Nassau County publishes in depth guidelines for the discovery of ESI (the Nassau Guidelines). While aimed at parties, the Nassau Guidelines are appropriate in cases, such as this, where a nonparty's data is at issue. ESI is difficult to destroy permanently. Deletion usually only makes the data more difficult to access. Based on the specific facts of this case, the Court found that the Nassau Guidelines provided a practical approach. To exempt inaccessible data presumptively from discovery might encourage quick deletion as a matter of corporate policy, well before the spectre of litigation is on the horizon and the duty to preserve it attaches. A cost/benefit analysis, as the Nassau Guidelines provide, does not encourage data destruction because discovery could take place regardless. Plaintiff had variously described the information it seeks as stored in a "cache" file, as "unallocated" data or somewhere in backup data. Data from these sources is difficult to access. But, plaintiff's only chance to confirm the identity of the person who allegedly defamed her may lie with NYU. Thus, plaintiff thus demonstrated "good cause"necessitating a cost/benefit analysis to determine whether the needs of the case warrant retrieval of the data.
As the record was insufficient to permit the court to undertake a cost/benefit analysis it remanded to Supreme Court for a hearing to determine at least: (1) whether the identifying information was written over, as NYU maintained, or whether it is somewhere else, such as in unallocated space as a text file; (2) whether the retrieval software plaintiff suggested can actually obtain the data; (3) whether the data will identify actual persons who used the internet on April 12, 2009 via the IP address plaintiff identified; (4) which of those persons accessed Vitals.com and (5) a budget for the cost of the data retrieval, including line item(s) correlating the cost to NYU for the disruption. It observed that some of these questions (particularly [1] and [2] ) may involve credibility determinations. Until the court has this minimum information, it cannot assess "the burden and expense of recovering and producing the ESI and the relative need for the data" (Nassau Guidelines) and concomitantly whether the data is so "inaccessible" that NYU does not have the ability to comply with the subpoena. That NYU is a nonparty should also figure into the equation. In the event the data is retrievable without undue burden or cost, the court should give NYU a reasonable time to comply with the subpoena.

Family Court Finds Irrebuttable Presumption of Unfitness in SSL 378-a(2)(e)(1) and 378-a(2)(h) Violate Due Process Clauses of the New York State and United States Constitutions

In the Matter of the Adoption of Abel,--- N.Y.S.2d ----, 2011 WL 4436127 (N.Y.Fam.Ct.), Cheryl and Derrick Adamson filed a petition to adopt Abel. Abel was born on August 9, 2004. Since September 22, 2004 when Abel was discharged from the hospital, on the basis of a petition that had been filed alleging that his biological mother had neglected him, Abel resided in the home of his maternal cousin, Cheryl Adamson, and her husband, Derrick Adamson. On April 20, 2009, the court terminated Abel's biological mother's parental rights.. The evidence submitted provided incontrovertible support for the proposition that it was in Abel's best interest to be adopted by the Adamsons and clearly militated in favor of this court approving the Adamsons' petition to adopt Abel. Mr. Adamson's criminal history, however, created an issue as to whether there existed a statutory bar to such approval. Mr. Adamson had a 1987 Washington D.C. conviction for simple assault and a 1992 Kings County (New York State) conviction for Robbery in the Third Degree. On November 24, 2009, pursuant to Social Services Law 378-a(2)(h), New York Foundling conducted a safety assessment of the conditions of the Adamson household. Based on the remoteness in time of his criminal convictions and the fact that in the years since the 1992 robbery conviction, Mr. Adamson had reformed his behavior and has led a productive life, the safety assessment reported that Mr. Adamson did not pose a safety concern to Abel. The assessment concluded that because "Mr. Adamson has been the sole father figure in Abel's life, [New York Foundling] strongly believes that it is in the best interest of the child to be adopted by Mr. and Mrs. Adamson."
In order to gain further understanding of the facts underlying Mr. Adamson's 1992 robbery conviction, the court obtained the criminal court complaint and a transcript of Mr. Adamson's guilty plea. The criminal complaint alleged that on November 27, 1991, in Kings County, Mr. Adamson hit the victim with an unknown blunt object about his head and face and took a bag containing money that the victim had been carrying.The blows allegedly knocked out the victim's front teeth, caused his nose to bleed, and resulted in his sustaining a separated shoulder. On February 3, 1992, having been promised a sentence of one and one-third to four years imprisonment, Mr. Adamson pled guilty to one count of Robbery in the Third Degree and admitted that, on November 27, 1991, when the owner of a store came out [of the store], he hit him, caused him to fall, took his bag containing money, and fled. The Family Court observed that prior to the 2008 amendment of SSL 378-a(2)(e), the court would have found that Mr. Adamson's 1992 robbery conviction did not automatically disqualify him from adopting Abel because denial of Mr. and Mrs. Adamson's petition to adopt would have created an unreasonable risk of harm to Abel's mental health and granting said petition would have been in Abel's best interest and would not have placed his safety in jeopardy. However, in 2008, in order to comply with the federal Adam Walsh Child Protection Act of 2006, see Public Law 109-248, New York State eliminated the language in SSL 378--a which only presumptively disqualified from becoming foster or adoptive parents those who had been convicted of certain felonies, and by doing so made automatic the disqualification of those prospective foster or adoptive parents who had been convicted of certain felonies. The Court held that Mr. Adamson's conviction in 1992 for Robbery in the Third Degree fell within the category of convictions which would automatically disqualify him from adopting Abel. SSL 378-a(2)(e)(1)(A) reads, in pertinent part, "an application for certification or approval of a prospective foster parent or prospective adoptive parent shall be denied where a criminal history record of the prospective foster parent or prospective adoptive parent reveals a conviction for: (A) a felony conviction at any time involving: (i) child abuse or neglect; (ii) spousal abuse; (iii) a crime against a child, including child pornography; or (iv) a crime involving violence, including rape, sexual assault, or homicide, other than a crime involving physical assault or battery. See also 18 NYCRR 421.27(d)(1); 42 USCA 671(a)(20)(A)(I); 45 C.F.R. 1356.30(b)(4). Since assault was specifically excluded from the above-cited provision and since Mr. Adamson's assault conviction was both a misdemeanor and occurred over five years ago, there was no doubt that, unlike the robbery conviction, the assault conviction fell within the category of convictions for which the court had discretion to approve or deny the petition to adopt. See SSL 378-a(2)(e)(3(A). Because robbery was not specifically mentioned in this provision, the court, therefore, found that Mr. Adamson's 1992 robbery conviction constituted a "crime involving violence. The fact that robbery is not specifically included in Social Services Law 378-a(2)(e)(1)(A)(iv) is not dispositive. Although this provision specifically includes rape, sexual assault and homicide and specifically excludes assault as crimes involving violence, there is nothing in either the legislative history of this provision or the state or federal regulations promulgated thereunder that would indicate that the listed crimes are exhaustive, and not merely illustrative, of crimes involving violence.
It was beyond cavil that Mr. Adamson had rehabilitated himself and that removal of Abel from this home would have a devastating impact upon Abel. Under the circumstances of this case, it was clear that to follow the strict mandate of the statute and deny Mr. and Mrs. Adamson's petition to adopt Abel and to remove Abel from the home of his maternal cousin and her husband-the only home he has ever known-based solely upon Mr. Adamson's 1992 robbery conviction, would deprive both Abel and the Adamsons of their due process right to an individualized determination of whether this adoption is in Abel's best interest. That right, to a case-specific determination, was firmly established almost forty years ago in Stanley v. Illinois, 605 U.S. 645(1972) when the United States Supreme Court struck down as violative of the Fourteenth Amendment, Illinois' irrebuttable statutory presumption that all unmarried fathers are unqualified to raise their children. The Court held that a hearing was required by the due process clause, upon the death of the mother and prior to the removal of the children, to determine whether the father was fit to raise the children. In so ruling, the Court opined, "procedure by [irrebuttable] presumption is always cheaper and easier than individualized determination. But when ... the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to fast formalities, it needlessly risks running roughshod over the important interests of both parent and child ... [and] therefore cannot stand." Based upon the due process clauses of the New York State and United States Constitutions, this court found that SSL 378-a(2)(e)(1) and 378-a(2)(h), as applied to the facts of this matter, violated Mr. and Mrs. Adamson's and Abel's right to a determination, based on the totality of the circumstances, as to whether the adoption of Abel by the Adamsons is in Abel's best interest. The court examined the totality of the circumstances presented and notwithstanding Mr. Adamson's criminal past, held that it was in Abel's best interest to be adopted by Mr. and Mrs. Adamson and granted the petition.


Method of Service Provided for in Order to Show Cause Is Jurisdictional

In Matter of Sharma v New, --- N.Y.S.2d ----, 2011 WL 4389744 (N.Y.A.D. 2 Dept.), in March 2010 the mother filed a petition and order to show cause to modify the overnight visitation provisions contained in an order dated January 14, 2010, alleging that the father violated that order by taking the subject child "to a different hotel than the one ... which he informed [the social worker] he would be using." In an order dated July 9, 2010, the Family Court, inter alia, granted the mother's petition so as to suspend the father's overnight visitation. The Appellate Division reversed. It observed that the method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with. Moreover, where the court orders service by a particular date, all components of service must be accomplished by that date. Here, the record did not contain any evidence establishing that the father was properly or timely served in compliance with the provisions of the order to show cause. Moreover, contrary to the contention of the attorney for the child, the father asserted the defense of lack of personal jurisdiction in his answer and did not waive the defense (see CPLR 3211[e]). Since personal jurisdiction was not obtained, the Family Court should have dismissed the proceeding.

Father Did Not Implicitly Consent to Referee by Merely Participating in Custody Proceeding. Referee Had No Jurisdiction.

In Gale v Gale, --- N.Y.S.2d ----, 2011 WL 4090031 (N.Y.A.D. 2 Dept.) the Appellate Divison reversed on the law and remitted for a new hearing, an order of the Family Court which, after a hearing, granted the mother's petition to modify the custody provisions of a judgment of divorce so as to award her sole custody of the parties' children, and denied the fathers petitions for sole custody of the children. It pointed out that a referee derives authority from an order of reference by the court (see CPLR 4311), which can be made only upon the consent of the parties, except in limited circumstances not applicable here. It found that the parties did not stipulate to a reference in the manner prescribed by CPLR 2104. In any event, there was no indication that there was an order of reference designating the referee who heard and determined the petitions at issue here. It observed that that contrary to the mother's contention, the father did not implicitly consent to the reference merely by participating in the proceeding without expressing his desire to have the matter tried before a judge (see McCormack v. McCormack, 174 A.D.2d at 613). The Court held that “...to the extent that certain dicta in Chalu v. Tov-Le Realty Corp. (220 A.D.2d 552, 553) may suggest a different conclusion, it is not to be followed.” Furthermore, a stipulation consenting to a reference to a specified referee, executed by the parties in connection with the father's previous petition to modify the visitation schedule, expired upon completion of that matter and did not remain in effect for this matter. Accordingly, the referee had no jurisdiction to consider the father's petitions related to custody and visitation and the mother's petition to modify custody, and the referee's order determining those petitions had to be reversed.