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Wednesday, November 16, 2011

Important New Decisions - November 11, 2011

Presumptive Amount of Temporary Maintenance Unjust or Inappropriate Where There Were Substantial Marital Assets Subject to Equitable Distribution, and Plaintiff Waited 3 ½ Years Prior to Seeking Temporary Maintenance

In Salai v Salai, --- N.Y.S.2d ----, 2011 WL 5526030 (N.Y.Sup.) Plaintiff wife moved for an order of temporary spousal maintenance of $9,571.22 per month. The parties were married on September 15, 1979. Plaintiff was a teacher in the husband was an attorney in private practice. Defendant was not opposed to the payment of some temporary maintenance but argued that plaintiff's requested amount exceeded her needs. The Supreme Court observed that Domestic Relations Law 236(B)(5-a)(c) provides the formula to calculate the presumptively correct award amount, which it applied to the parties' admitted income levels. It noted that DRL 236(B)(5-a)(d) provides that "the guideline amount of temporary maintenance shall be the lower" of two calculations, in this case $114,885 or $9,571 monthly. DRL 236(B)(5-a)(e)(1) provides that "[t]he court shall order the presumptive award of temporary maintenance in accordance with paragraphs c and d of this subdivision, unless the court finds that the presumptive award is unjust or inappropriate and adjusts the presumptive award of temporary maintenance accordingly based upon consideration of 17 factors. Having considered those factors the court found that an award of the presumptive amount calculated would be inappropriate and unjust because there were substantial marital assets subject to equitable distribution, and plaintiff had maintained a separate pre-divorce household for a period of three and one half years prior to seeking temporary maintenance. Review of the parties' Statements of New Worth indicated that approximately $2,440,000 of marital property was available for equitable distribution. Moreover, plaintiff maintained a pre-divorce separate household for three years and one-half years prior to seeking temporary maintenance. (DRL 236 (B)(5-a)(e)(1)(g)). Plaintiff had been virtually self supporting, aside from a $25,000 payment from defendant for a new car, for that period. This was not a case where the less-moneyed spouse can be said to have forgone her own career or educational ambitions in favor of the more moneyed spouse. Plaintiff has realized her full earning capacity and was not in need of any additional education. She had a Bachelor of Science degree, a permanent teaching certification,
and a full time permanent position paying $75,931 per year in the Penfield School
District. These factors together, together with the fact that a permanent
maintenance award, if any given the extent of equitable distribution contemplated
and plaintiff's ability to be virtually self supporting in her current job, argued
for a temporary maintenance award substantially less than the presumptive amount.
However, as plaintiff's earned income alone did not quite meet her reported current monthly expenses, it was appropriate to order an amount of maintenance to allow plaintiff to meet her expenses. Plaintiff took home $4,287 per month after taxes from her employment as a teacher. Plaintiff's claimed expenses were $5,886 per month. The
difference being $1,599 per month. In addition, while the parties appeared to live
well within their means, some consideration for the parties' standard of living
during the marriage had to be made. DRL 236(B)(5- a)(e)(1)(a). Accordingly, the court awarded maintenance in the amount of $3,000 per month, or $36,000 per year.

Fourth Department States That Federal Poverty Income Guidelines Do Not Apply Where Income Is Imputed in Excess of Guidelines Amount

In Niagra County Department of Social Services ex rel Hueber v Hueber, --- N.Y.S.2d ----, 2011 WL 5433691 (N.Y.A.D. 4 Dept.) the Support Magistrate imputed income to Respondent based on the minimum wage for a period of over three years and ordered that he pay child support arrears for that period of $1,870.68. It was undisputed that the father was incarcerated for all but the last 4 ½ months of that time period. The Appellate Divison affirmed. It held that the Support Magistrate did not abuse her discretion by imputing income to the father for the period during which he was incarcerated for the purpose of calculating his child support obligation. To the extent that the father's financial hardship was the result of his own wrongful conduct, he was not entitled to a reduction of his obligation to pay child support ( Matter of Knights v. Knights, 71 N.Y.2d 865, 866-867). The father's contention that the child support arrears should be reduced to $500 because his income was below the federal poverty income guidelines was not preserved for review inasmuch as it is raised for the first time on appeal. In any event, the Appellate Division stated that his contention was without merit because the father's income for the purpose of calculating his child support obligation includes imputed income (Family Ct Act 413[1][b][5][iv], [v] ), and thus his income was above the federal poverty income guidelines (see generally s 413[1][g]; Matter of Julianska v. Majewski, 78 AD3d 1182). The father's further contention that a local ordinance limiting the locations where registered sex offenders may be employed has prevented him from finding employment was not raised in his written objections to the Support Magistrate's order and thus was not preserved for review.

Order of Protection Properly Denied Where Communications Sent with Legitimate Purpose of Attempting to Reconcile with Petitioner

In Ovsanik v Ovsanik, --- N.Y.S.2d ----, 2011 WL 5433772 (N.Y.A.D. 4 Dept.)
the Appellate Divison reversed an order of protection granted by the Family Court finding that Petitioner failed to meet her burden of proving by a preponderance of the evidence that respondent committed acts constituting a family offense. The
record established that the parties were married in 1987 and that, on at least two
occasions prior to the events leading up to the petition, the parties separated and then reconciled. In July 2009, petitioner left the marital home and began staying at a motel. Between October 2009 and September 2010, respondent visited petitioner at the motel on a daily basis, and it was undisputed that petitioner consented to those visits. In September 2010, petitioner informed respondent that she no longer wanted to be married to him and that he should no longer visit her. In an attempt to reconcile with petitioner, respondent left four handwritten letters and a store-bought card for her over a period of approximately one month. During that same period of time, respondent knocked on the door of petitioner's motel room at approximately 2 A.M. at least once or
twice. When respondent knocked on her door, petitioner ignored him, and respondent
left after a few minutes. Because petitioner worked overnight shifts, it was not unusual for her to be awake at 2 A.M., and respondent previously had visited petitioner during the early morning hours before September 2010. In light of the foregoing, the evidence was insufficient to establish that respondent acted with "no legitimate purpose" within the meaning of the stalking statute (Penal Law 120.45). "[T]he phrase 'no legitimate purpose' means the absence of a reason or justification to engage someone, other than to hound, frighten, intimidate or threaten" (People v. Stuart, 100 N.Y.2d 412, 428). Here, the letters and the card were sent with the legitimate purpose of attempting to reconcile with petitioner, a purpose that was not unreasonable based upon the parties' lengthy marriage and history of separation and reconciliation. The evidence was also insufficient to establish that respondent knew or reasonably should have known that his conduct caused "material harm to [petitioner's] mental or emotional health". Notably, there was nothing on the face of the letters or the card that was improper or threatening. Petitioner's testimony that respondent was physically violent during
the marriage did not tend to establish that respondent's conduct in 2010 constituted stalking. Indeed, the only incident of violence that was described in any particularity occurred in the early 1990s. Although there was no statute of limitations for family offenses, and acts not "relatively contemporaneous with the date of the petition" are entitled to consideration (Family Ct Act 812[1]), petitioner's remote allegations of physical violence did not establish "a cognizable pattern of behavior" on respondent's part so as to render his behavior devoid of any legitimate purpose.

Attorney Witness Properly Disqualified Based upon Advocate Witness Rule

In Jozefik v Jozefik, --- N.Y.S.2d ----, 2011 WL 5433996 (N.Y.A.D. 4 Dept.) plaintiff contended on appeal that he was deprived of his right to counsel of his own choosing when Supreme Court disqualified his attorney based upon an alleged conflict of interest. The Appellate Divison rejected that contention. It observed that the decision to disqualify an attorney lies within the sound discretion of the trial court. It concluded that the court did not abuse its sound discretion in disqualifying plaintiff's attorney, based on rule 3.7 of the Rules of Professional Conduct (22 NYCRR 1200.0). Rule 3.7(a) provides that "[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact," with certain exceptions not relevant here. Although not binding upon the courts, the advocate-witness rule provides guidance for the courts in determining whether a party's attorney should be disqualified during litigation. The record established that it was likely that plaintiff's original trial attorney would be a witness on a significant issue of fact. During the first trial in this action, plaintiff testified that he requested and/or facilitated the transfer of an amount of wages ranging from $15,000 to $17,000 from his employer to his attorney's business account, and it appeared from the record that the transfer was in violation of an order appointing a receiver to receive plaintiff's income. Plaintiff's attorney transferred some of the funds to plaintiff and remitted the remaining funds to plaintiff's accountant, again in apparent violation of the above-referenced order. When the court questioned plaintiff's attorney on the record about that testimony, the attorney replied that he was "taking the Fifth." The court thereupon declared a mistrial and discharged plaintiff's attorney, reasoning that a conflict of interest had developed because the attorney was "likely to be called upon as a witness in this proceeding and may become a witness in another tribunal." Thus, the record established that plaintiff's attorney was likely to be a witness on a significant issue of fact in violation of rule 3.7 of the Rules of Professional Conduct, namely, the issue whether plaintiff violated the court's order appointing a receiver and, in so doing, diverted or otherwise obscured his income. As plaintiff conceded in correspondence to the court, his attorney "continually told [him], and apparently [his] wife's attorney did not disagree, that the only issues were the amount of child support and the amount and duration of maintenance." Thus, the extent of plaintiff's income was a significant issue of fact throughout the litigation. Notably, the record reflected that plaintiff's attorney was subpoenaed to turn over documents and to testify at trial against plaintiff. Although it appeared that plaintiff's attorney did not in fact testify at the second trial, the express language of rule 3.7 provides only that it is "likely" that the attorney will be called as a witness, and the Court concluded on this record that it was in fact likely. The Court rejected plaintiff's further contention that the court erred in failing to make a "searching inquiry ... to ascertain whether plaintiff understood the
dangers and disadvantages of self-representation. No such searching inquiry was required inasmuch as there is no right to counsel in a divorce action (see Matter of Smiley, 36 N.Y.2d 433), and the court was not obligated to elicit a waiver of such right by way of a searching inquiry before permitting plaintiff to proceed pro se.

Direction That Maintenance Be Nontaxable to Spouse Is "A Departure from the Norm Envisioned by Current Internal Revenue Code Provisions" and Requires Sufficient Evidence

In Siskind v Siskind, --- N.Y.S.2d ----, 2011 WL 5429488 (N.Y.A.D. 2 Dept.), an action for a divorce, Supreme Court, inter alia, awarded the plaintiff child support of $34,000 per year, and maintenance of $65,000 per year, nontaxable to the plaintiff, commencing on May 1, 2010, until the plaintiff reaches her 65th birthday, directed the defendant to obtain and maintain a life insurance policy of $4,000,000 to secure the child support and maintenance payments, directed that certain funds retained by the defendant's
attorneys in escrow be transferred to custodial accounts to pay for educational
expenses for the parties' two college-age children, and that the defendant be
responsible for payment of 90 percent of the college expenses of these two
children not covered by the funds in the custodial accounts, equitably distributed
the marital portions of the parties' investments by awarding the plaintiff $216,109.50, awarded the plaintiff an attorney's fee of $340,000, and denied that branch of his motion which was for a downward modification of his pendente lite child support and maintenance obligations. The Appellate Division modified. It held that in light of the parties' ages as well as their respective financial circumstances, the Supreme Court should have awarded the plaintiff $65,000 per year in maintenance until the earliest of her attainment of her 65th birthday, her remarriage, or her death. In found that there was insufficient evidence to justify Supreme Court's direction that maintenance be nontaxable to the plaintiff, which is "a departure from the norm envisioned by current Internal Revenue Code provisions" (Grumet v. Grumet, 37 A.D.3d 534, 536, 829 N.Y.S.2d 682). It also held that based on the evidence in the record, including the trial testimony, the defendant's financial records, and the tax returns of the parties and the defendant's businesses, the Supreme Court providently imputed income to the defendant and calculated the amount of child support by applying the statutory percentage of 17% to all of the defendant's income, which was $199,655, for child support purposes. While Supreme Court correctly required the defendant to obtain and maintain a life insurance policy in order to secure his maintenance and child support obligations, in view of those obligations, the amount of insurance that the defendant must maintain should be reduced from t$4,000,000 to $3,000,000. It held that the Supreme Court did not improvidently exercise its discretion in awarding an attorney's fee of $340,000 to the plaintiff in view of the relative financial circumstances of the parties, their ability to pay, the nature and extent of the services rendered, the complexity of the defendant's business endeavors, and the fact that the defendant litigated the issue of custody and visitation of the parties' daughter until it was settled by stipulation during the trial.

Child Not Constructively Emancipated Where Father Contributed to Deterioration of Relationship with His Son

In Matter of Glen LS v Deborah AS, --- N.Y.S.2d ----, 2011 WL 5431519 (N.Y.A.D. 2 Dept.) the Appellate Division observed that under the doctrine of constructive emancipation, where a minor of employable age and in full possession of his or her faculties, voluntarily and without cause, abandons the parent's home, against the will of the parent and for the purpose of avoiding parental control he or she forfeits his or her right to demand support. In contrast, where it is the parent who causes a breakdown in communication with his or her child, or has made no serious effort to contact the child and exercise his or her visitation rights, the child will not be deemed to have abandoned the parent (Matter of Alice C. v. Bernard G.C., 193 A.D.2d 97). The burden of proof as to emancipation is on the party asserting it. Here, there was an insufficient basis in the record to support the Family Court's determination that the parties' son unjustifiably refused contact and visitation with his father. The testimony elicited at the hearing established the father's claim that his son chose not to speak with him on the telephone and did not return his text messages following an altercation between the two in February 2008. However, the evidence also revealed that the altercation between the two prompted the son to state that "he wanted to commit suicide" and resulted in therapeutic intervention. Based on these mental health concerns, the son, via his mother, requested that the father not contact him so that he could "sort out" the issues, indicating a temporary reluctance on the son's part to contact the father. The father acknowledged that he made no effort to enforce visitation with the assistance of the court. The father made no efforts to contact the son through the school other than one telephone call to a guidance counselor, and admittedly never attempted to visit the son at his mother's home after the incident. All attempts at communication by the father ceased in October 2009, eight months after the incident. The father made no attempts to contact his son during his senior year of high school and made no effort to discuss or gain information regarding the son's college plans. In June 2009, having rented out a portion of his house, the father removed the son's belongings from his home and dropped them off at the mother's home with an email communicating, in effect, that the door was open for the son to come to him "[i]f eventually he can work his issues out and feels he needs the other part of his family." However, shortly thereafter, the father
refused an invitation to his son's high school graduation and failed to acknowledge or congratulate his son upon graduation in any manner. While the father sent a birthday card to his son without response in 2008, the father also failed to respond to an Easter card sent to him by his son in 2010. The Appellate Division found that the totality of the father's efforts to establish a relationship with his son, over a period of several months, could not be deemed a serious effort that was in turn egregiously rejected by the son. A child's reluctance to see a parent is not abandonment, relieving the parent of any support obligation. Rather, the doctrine of constructive emancipation is applicable to situations where the child refuses to submit to the authority and control of the noncustodial paying parent or actively abandons the noncustodial parent by refusing all contact and visitation. The facts here showed that the father contributed to the deterioration of his relationship with his son. The record demonstrated that the father's own behavior was the parallel and coequal cause of the deterioration in the relationship. Accordingly, the father failed to meet his burden of establishing that his son was constructively emancipated and Family Court should not have granted the father's petition to vacate the child support provisions of the parties' stipulation of settlement, which was incorporated but not merged into the judgment of divorce.

Interpreter Who Did Not Interpret Word for Word on One or Two Occasions, Engaged in Conversations with Witness, and Erred in Her Translation of One or Two Violated Standards for Court Interpreters

In Matter of Yovanny L, 931 N.Y.S.2d 485, 2011 N.Y. Slip Op. 21354 (Fam Ct), a juvenile delinquency proceeding, the Family Court found that that there were errors made by the court appointed Mandarin interpreter when interpreting the complainant's testimony. For example, the interpreter stated motorcycle before being corrected to say bicycle. In another instance the witness answered a question by saying he saw someone three to four times per week, while the interpreter interpreted two to three times. Additionally, at times it appeared that there was a conversation occurring between the interpreter and the complainant, and some statements may have been paraphrased rather than word-for-word.
The Family Court observed that Rule of Court 22 NYCRR 217 provides that "In all civil and criminal cases, when a court determines that a party or witness, or an interested parent or guardian in a Family Court proceeding, is unable to understand or communicate to the extent that he or she cannot meaningfully participate in the proceedings, the court shall appoint an interpreter." General standards expressed in the limited case law in this area set forth that since the interpreter is the conduit from the witness to the trier-of-fact, interpretation should be word-for-word rather than summarized, no conversation between the witness and the interpreter, no significant differences in the length of dialogue of the witness and the interpreter, and no bias or interest in the proceedings. (Citing, e.g., Matter of James L., 143 A.D.2d 533, 532 N.Y.S.2d 941; see also, Dat Pham v. Beaver, 445 F.Supp.2d 252; US v. Joshi, 896 F.2d 1303). In the OCA internal Court Interpreter Manual and Code of Ethics, the following "responsibilities" are indicated. Under "Accuracy", interpreters must faithfully and accurately interpret what is said without embellishment or omission, and there is additional advice for impartiality, confidentiality, proficiency, and professional demeanor. Under "proficiency" and "errors", interpreters must provide professional services only in areas where they can perform accurately, and when in doubt inform the court; and the interpreter must immediately inform the judge of an error, even if perceived after the proceeding has concluded. Because the interpreter did not interpret word for word on one or two occasions, engaged in conversations with the witness, and erred in her translation of one or two words, the Court found that she violated the standards for court interpreters. However, the bulk of her work, in the 30- 40 minutes of testimony, did meet proper standards, and the individual errors were isolated instances.
The Family Court noted that in People v. Singleton, 59 A.D.3d 1131, 873 N.Y.S.2d 838, the Court held that while there were some errors in interpretation, the defendant failed to establish that he "was prejudiced by those errors", and the conviction was affirmed. In People v. Dat Pham, 283 A.D.2d 952, 725 N.Y.S.2d 245, also, while there were some errors in the translation, the jury was informed of the errors, and the conviction was affirmed because the defendant did not show that he was seriously prejudiced. Other cases have held that the failure of the defendant to object as to the adequacy of the translation during trial or otherwise preserve proof of any serious error does not provide the basis for a reversal. Here the errors made were relatively minor and few, and did not affect the main aspects of the witness's testimony, and this Court, as the trier of fact in this Family Court juvenile delinquency case, was able to discern the testimony notwithstanding these errors. Therefore, as there had been no major prejudice to any party, and the drastic remedy requested by the Presentment Agency, that of striking the testimony and starting anew, was denied, as not warranted under the circumstances of this case. The Court directed that trial would resume with the continued testimony of the witness, with a different Mandarin interpreter to be supplied by the Clerk of the Court and the interpreter service unit.

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