Important New Decisions - December 27, 2011

Where Family Court Has No Jurisdiction to Issue Order of Protection, Such Order Is Void Ab Initio for All Purposes, Including the Power to Hold a Party in Contempt

In Matter of Parrella v Freely, --- N.Y.S.2d ----, 2011 WL 6091331 (N.Y.A.D. 2 Dept.) in January 2010 the appellant was dating the former boyfriend of Lisa Ann Parrella, with whom Parrella had a child. At that time, Parrella filed a petition against the appellant, alleging that the appellant violated a previous order of protection. On July 13, 2010, the Family Court entered an order which, granted the petition and directed the appellant to stay away from Parrella and to refrain from communicating with or about Parrella for a period of two years. The Appellate Division reversed finding that the Family Court lacked subject matter jurisdiction over the proceeding. It observed that Family Court is a court of limited jurisdiction and, thus, it cannot exercise powers beyond those granted to it by statute. It held that where the Family Court has no jurisdiction to issue an order of protection or temporary order of protection initially, such an order is void ab initio for all purposes, including the power to hold a party in contempt (citing Matter of Robert B.- H. [Robert H.], 82 AD3d 1221, 1222; see Matter of Fish v. Horn, 14 N.Y.2d 905, 906). Pursuant to Family Court Act 812(1), the Family Court's jurisdiction in family offense proceedings is limited to certain proscribed criminal acts that occur among enumerated classes of people, including persons who share an "intimate relationship" with each other (Family Ct Act 812[1][e]. Here, there was no evidence in the record that the appellant and Parrella had a direct relationship. Instead, the evidence revealed that the parties had met personally only during the course of the court proceedings and that the appellant had never met Parrella's child. Therefore, there was no evidence that the parties' relationship was an "intimate relationship" within the meaning of Family Court Act 812(1)(e). Since the parties did not have an "intimate relationship" within the meaning of Family Court Act 812(1)(e), the Family Court lacked subject matter jurisdiction to issue the original order of protection or to issue the order appealed from.


Courts Will Not Require Children to Subsidize Parent's Financial Decision to Forgo Present Employment for Potential Future Income.


In Matter of Berrada,--- N.Y.S.2d ----, 2011 WL 6090172 (N.Y.A.D. 3 Dept.) the parties were married in 1996 and had three minor children. After they separated in 2006, the mother obtained custody of the children and petitioned for child support (Matter of Berrada v. Berrada, --- AD3d ---- [appeal No. 511629, decided herewith] ). Rejecting the father's claim that he was unable to find employment, a Support Magistrate determined that he had failed to conduct a thorough job search, imputed an annual earning capacity to him of $125,000, and directed him to pay $2,834 a month in child support. The father did not file objections to that order. He did, however, file modification petitions in 2009, again asserting that he was unable to find work. The Support Magistrate dismissed the petitions, finding that the father had not demonstrated a
substantial change in circumstances. Family Court denied the father's objections and the Appellate Division affirmed. It held that in order to succeed upon his modification petitions, the father was required to establish a substantial change in circumstances since the entry of the child support order that warranted a modification of his obligation
to pay child support. At the time of the hearing, the father remained unemployed, devoting his attention to various sales enterprises that paid on commission without producing consistent income. While he made an effort to find full-time employment within his narrow area of expertise, his search did not extend elsewhere. Moreover, the
father was attempting to develop his own business and testified that he would only
"jump on" a full-time job offer if it paid a substantial salary. Notwithstanding the father's argument that the new venture constitutes a substantial change of circumstances in that it may produce income in the future, the courts will not require the children to subsidize a parent's financial decision" to forgo present employment for potential future income.


Family Court Did Not Abuse Discretion by Terminating the Father's Child Support Obligation Where Mother Deliberately and Unjustifiably Frustrated Father's Visitation.

In Matter of Luke v Luke,--- N.Y.S.2d ----, 2011 WL 6090137 (N.Y.A.D. 3 Dept.)
Petitioner (father) and respondent (mother) were the parents of one child (born in 2001). The parties separated prior to the child's birth. In 2003, the parties agreed to a stipulated order of joint custody, physical custody to the mother and visitation with the father on alternate weekends. These visits apparently only occurred for one or two months. Also in 2003, a support order was entered against the father. The father then moved to New Jersey. Each party claimed that he or she lacked contact information for the other after 2003. In 2004, Family Court issued a default order awarding the mother sole custody, with visitation to the father as agreed upon by the mother. In 2007, the father returned to Schuyler County. That same year, the mother apparently moved to New Jersey and then Pennsylvania. In 2009, the father sought Family Court's assistance to locate the mother and filed a petition seeking visitation with the parties' daughter. In October 2009, after these proceedings had commenced, the mother moved back to Schuyler County, but within a few months she moved to Steuben County. The father filed numerous petitions seeking visitation, custody and downward modification of support, and alleging that the mother violated the prior visitation order as well as temporary orders entered during these proceedings. Following a hearing Family Court awarded the parties joint custody with the child spending four days per week with the father and three days per week with the mother. The court also terminated the father's support obligation effective January 2010, the date he filed his support modification petition.
The Appellate Division held that Family Court's modification of custody has a sound and substantial basis in the record. The parties' numerous moves, the father trying to reestablish contact and the mother hindering those efforts all provided changed circumstances reflecting a need to modify the prior custody and visitation order. Although the father did not actively attempt to enforce his visitation rights and pursue his relationship with his daughter from 2003 to 2009, he testified that he had no vehicle in New Jersey, had no contact information for the mother or child and did not know how to find them. The mother stopped bringing the child to visitation after one or two months in 2003 and-despite having agreed to the visitation-filed unsubstantiated petitions to terminate the visitation soon after entering the stipulation. The mother moved numerous times, including four times during the pendency of these proceedings, and never informed the father. One was a safe house where she fled to escape domestic abuse by her paramour-abuse that was witnessed by the daughter and caused her to fear the paramour. The mother also violated almost every temporary visitation order entered during the pendency of these proceedings by failing to bring the child to visit with the father. When she did not have a suitable place to live, she wrote a letter assigning custody of her daughter and son to her paramour's adult daughter, without consulting the father. The paramour's daughter also deprived the father of his court-ordered visitation, and the mother passed blame to her. At the time of the Lincoln hearing, the child had not seen her mother for almost two months, and the mother testified that she called only when she had minutes on her phone. While the father had lost contact with his daughter for several years and did not adequately explain why he took so long to attempt to reestablish a connection, at the time of the hearing he had been working for a year to form a relationship with her. Those efforts were constantly thwarted by the mother and her paramour's daughter, who failed to bring the child to visits and even kept the child out of school on Fridays when the father was supposed to pick the child up for weekend visitation. Everyone agreed that the child should remain in the same school district; the father lived near the child's school, while the mother had moved to a different district. The father also agreed to open a preventative services file
with the local social services agency and bring the child to mental health counseling.
Family Court did not err in placing the child with the father for four days per week.
While the law expresses a preference for keeping siblings together, the rule is
not absolute and has become complicated by changing family dynamics and the
presence of multiple half siblings the court must ultimately decide what is
best for the child at issue. Here, the custody petitions regarding the mother's son-the half brother of the daughter involved in this appeal-were withdrawn or dismissed, leaving that child in the mother's custody. Evidence indicated that the son would have difficulty being separated from his half sister, but there was no evidence of ill effects to the daughter from any separation. In any event, Family Court's order left those children together for three days each week. Considering the totality of the circumstances, including the custodial interference by the mother, the record contained a sound and substantial basis for the court's custody determination.
The Appellate Division held that Family Court did not abuse its discretion by terminating the father's child support obligation. The court was authorized to suspend support payments for periods when the mother wrongfully interfered with or withheld visitation. The record supported the finding that the mother deliberately and unjustifiably frustrated the father's visitation by failing to produce the child, moving without notifying the father and attempting to informally transfer custody to another
person who also did not produce the child for visitation-again without informing
the father. Additionally, the court's custody determination placed the child in the father's care for the majority of each week, providing a basis to eliminate his support obligation. Hence, the court did not err in terminating the father's support obligation as of January 2010, the date he filed a petition seeking such relief.



Family Offense Petition is Sufficient if it Alleges specific acts committed at identified places and times, which, if proven, would constitute a family offense enumerated in Family Court Act 812(1)

In Matter of Little v Renz, --- N.Y.S.2d ----, 2011 WL 6224696 (N.Y.A.D. 2 Dept.) the Appellate Division observed that a proceeding pursuant to article eight of the Family Court Act is originated by the filing of a petition containing an allegation that the respondent committed an enumerated family offense. As a general matter, the factual allegations in a pleading must be "sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense" (CPLR 3013; Family Ct Act 165). It found that the petition in this case was not "a vague and conclusory repetition of the statutory language inasmuch as it alleged specific acts committed at identified places and times, which, if proven, would constitute a family offense . Accordingly, the allegations contained in the petition were sufficient to allege a family offense enumerated in Family Court Act 812(1), and the Family Court erred in denying the petition and dismissing the proceeding on the ground that the petition was insufficient.


Violation Petition Insufficient Where it Lacked Sufficient Specificity to Provide Respondent with Proper Notice of Alleged Violation and Failed to Outline How Petitioners Rights Prejudiced

In Miller v Miller, --- N.Y.S.2d ----, 2011 WL 6090163 (N.Y.A.D. 3 Dept.) the parties were the parents of two children, born in 2004 and 2005. A custody order entered in March 2008 granted sole legal custody to respondent (mother) with visitation to petitioner (father) as agreed between the parties. Among other provisions, it further required that the children be properly supervised at all times and that neither parent smoke or allow a third party to smoke in a vehicle in which the children are passengers. In June 2010, the father filed a violation petition alleging that the mother was in contempt of this order in that she failed to properly supervise and discipline the children, as she had permitted the older child to be violent towards others and to smoke. Finding that the petition lacked sufficient specificity to provide the mother with proper notice and failed to outline how the father's rights had been prejudiced, Family Court dismissed the petition without a hearing, but ordered a neglect investigation by the St. Lawrence County Department of Social Services. The Appellate Division affirmed. It held that the petition was subject to the requirements of CPLR 3013, and thus required to "be sufficiently particular" as to provide notice to the court and opposing party of the occurrences to be proved and the material elements of each cause of action (CPLR 3013; Family Ct. Act 165[a] ). The generalized allegations of the petition, even liberally construed, failed to provide the mother with notice of a particular event or violation such that she could prepare a defense (CPLR 3026). Further, the father failed to assert how the mother's alleged failings " 'defeated, impaired, impeded or prejudiced' " his rights, as required to sustain a civil contempt finding. Although Family Court properly ordered an investigation to determine whether a neglect or abuse proceeding should be initiated, this protective measure did not serve to remedy the defects in the father's petition. Accordingly, there was no error in the dismissal of the petition
without a hearing.


Appeal Dismissed for Failure of Appellant to Include Transcripts

In Matter of Katz v Dotan, --- N.Y.S.2d ----, 2011 WL 6091334 (N.Y.A.D. 2 Dept.) the Appellate Division observed that it is the obligation of the appellant to assemble a proper record on appeal (see Family Ct Act 1118; CPLR 5525[a]). The failure to provide necessary transcripts inhibits the Court's ability to render an informed decision on the merits of the appeal. In this case, the full record of the proceedings in the
Family Court had not been transcribed. The appeal was dismissed, as the papers provided were patently insufficient for the purpose of reviewing the issues the father has raised.


Appeal Dismissed for Failure to Full Trial Transcript in Record

In Clarke v Clarke, --- N.Y.S.2d ----, 2011 WL 6225188 (N.Y.A.D. 2 Dept.) the plaintiff appealed from a judgment of the Supreme Court which, after a nonjury trial, inter alia, failed to direct the defendant to pay child support arrears, failed to award her maintenance, and failed to equitably distribute the value of the defendant's medical license. The Appellate Division dismissed the appeal. It observed that an appellant is obligated to assemble a proper record on appeal, which must include any relevant transcripts of proceedings before the Supreme Court (CPLR 5525[a]; 5526). The record must also "contain all of the relevant papers that were before the Supreme Court, including the transcript, if any, of the proceedings" ( Matison v. County of Nassau, 290 A.D.2d 494, 494). Here, the plaintiff appealed from a judgment which failed to direct the defendant to pay child support arrears, failed to award the plaintiff
maintenance, and failed to equitably distribute the value of the defendant's medical license. However, the plaintiff's failure to provide the Court with the full transcript of the nonjury trial conducted before the Supreme Court rendered the record on appeal inadequate to enable the Court to reach an informed determination on the merits. Thus, the appeal had to be dismissed.


Father's Failure to Properly File a Full Record on Appeal, Despite His Contrary Statement Made Pursuant to CPLR 5531, Warranted Imposition of Costs

In Haleniuk v. Persaud, 89 A.D.3d 601, 933 N.Y.S.2d 33 (1 Dept, 2011), in affirming the order of Family Court, the Appellate Division found that the evidence in the record sufficiently supported Family Court's finding that the father failed to meet his burden of showing that the child was constructively emancipated. Although the record reflected a strained relationship between the father and child, it did not support a finding that the child completely refused to have a relationship with the father. The Appellate Divison held that the father's failure to properly file a full record on appeal, despite his contrary statement made pursuant to CPLR 5531, warranted the imposition of costs incurred in preparing and filing a respondent's appendix (CPLR 5528[e]; 22 NYCRR 600.10[c][1] ).

Important New Decisions - December 7, 2011

Child Denied the Meaningful Assistance of Appellate Counsel Where Attorney for Child Failed to Consult with and Advise Child in Manner Consistent with the Child's Capacities"

In Matter of Lamarcus E., --- N.Y.S.2d ----, 2011 WL 5984243 (N.Y.A.D. 3 Dept.)
Respondent was the father of the child (born in 2002). In August 2009, while under petitioner's supervision, the father told petitioner that he intended to relocate to Connecticut in October 2009 to work and live with his girlfriend, but that he would not be taking his son with him. Thereafter, petitioner filed a neglect petition against the father alleging that he planned to permanently relocate to Connecticut without his child and without any viable plan for the child's care in his absence, and that the father planned to place the child in foster care. Upon receipt of the petition, Family Court removed the child and placed him in the custody of petitioner. The father relocated to Connecticut the next day. Following a fact-finding hearing, the father was determined to have neglected his child and, after a dispositional hearing, Family Court directed that the child continue his placement with petitioner. The father appealed. No appeal was taken on behalf of the child. The Appellate Division observed that the attorney assigned to represent the child on this appeal was not the same attorney who continued to represent the child in Family Court. Although the child's appellate attorney had taken a position on this appeal that was consistent with that taken by the child's attorney in Family Court, she reported in her brief that she had not personally met with her client, who was now nine years old. She explained that the child's attorney in the ongoing proceedings in Family Court had been "able to provide me with continuing information on my client, his position and the status of the [proceedings in Family Court]." The child's appellate attorney provided the Appellate Division with no further explanation. Given the foregoing, the Appellate Division found that the child had been denied the meaningful assistance of appellate counsel. Counsel's failure to "consult with and advise the child to the extent of and in a manner consistent with the child's capacities" (22 NYCRR 7.2[d][1] ) constituted a failure to meet her essential responsibilities as the attorney for the child. Client contact, absent extraordinary circumstances, is a significant component to the meaningful representation of a child. Therefore, given the circumstances, and for the reasons clearly articulated in Matter of Mark T. v. Joyanna U. (64 A.D.3d 1092, 1093-1095 [2009] ) and Matter of Lewis v. Fuller, (69 A.D.3d 1142 [2010] ), the child's appellate counsel was relieved, the decision was withheld, and new counsel to be assigned to represent the child on the appeal.


Error to Dismiss Custody Case for Lack of Personal Jurisdiction Given Provision UCCJEA Providing That Physical Presence Of, or Personal Jurisdiction Over, a Party or a Child Not Necessary or Sufficient to Make a Child Custody Determination.

In Matter of Malek v Kwiatkowski, --- N.Y.S.2d ----, 2011 WL 5984260 (N.Y.A.D. 3 Dept.) Petitioner (father) and respondent (mother) were the unmarried parents of two daughters (born in 2004 and 2008). The father commenced the proceeding for joint custody and visitation in June 2010, alleging that the mother had relocated with the children in April 2010. The mother appeared pro se by telephone at Family Court's first two hearings, but she withheld her out-of-state address from the father because she alleged that she and the children were fearful of him. At the third appearance, the mother's counsel appeared on her behalf and claimed that she was financially unable to travel to New York at that time. Although the mother's counsel raised the issue of the lack of personal jurisdiction over his client, Family Court stated that the mother had submitted to the court's jurisdiction, set a trial date and told counsel that the mother's failure to appear on that date would result in a default. At the scheduled trial date, however, Family Court directed the mother's counsel to again make a motion to dismiss based on lack of jurisdiction, determined that the mother had not waived service by appearing and dismissed the petition with prejudice.
The Appellate Division reversed. It held that the Family Court erred in dismissing the case for lack of personal jurisdiction given the provision of the Uniform Child Custody Jurisdiction and Enforcement Act found at Domestic Relations Law 76(3), which provides that "[p]hysical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination." Further, under the circumstances, it was improper to dismiss the father's petition without first ordering service by an alternative method (see Domestic Relations Law 75-g [1][c] ). The mother had not revealed her address to the father, making normal service of process impractical. Additionally, the court had stated previously that the mother had submitted to its jurisdiction and ordered her to appear for a trial, thus giving the father no reason to believe that jurisdiction remained an issue. The court's peremptory resurrection of the issue when the mother did not appear on the trial date and its grant of the motion without affording the father an opportunity to serve the mother by alternative means was improper under these circumstances and it reversed and
remitted for that purpose.



Support Order Which Fails to Comply with Family Ct Act 413(1)(H) Is Invalid and Unenforceable.

In Matter of McKenna v McKenna, --- N.Y.S.2d ----, 2011 WL 5984262 (N.Y.A.D. 3 Dept.) upon the oral stipulation of petitioner (mother) and respondent (father), an order was entered that set the father's basic monthly child support obligation for the parties' two children at $1,235. In March 2010, the father filed an application to vacate the order, claiming that it did not comply with Family Ct Act 413(1)(h). Family Court affirmed the Support Magistrate's denial of the father's motion.
The Appellate Division reversed. It found that the order was invalid and unenforceable because it failed to include, as required, " 'a provision stating that the parties have been advised of the provisions of [the Child Support Standards Act] and that the basic child support obligation provided for therein would presumptively result in the correct amount of child support to be awarded' . While the parties acknowledged that they had agreed to the amount that the father would pay in basic child support-before any additional amount was added for child care and health insurance, no reference was made to the presumptive amount of child support under the Child Support Standards Act in their agreement or at the hearing, or in the order ultimately issued by Family Court. Because neither the agreement nor the order advised the parties in accordance with the nonwaiveable requirements of the Child Support Standards Act and the record contained no explanation as to whether or why there has
been a deviation from the child support calculation provided by that statute, the
support order at issue was invalid and unenforceable. The matter was remitted to Family Court to determine the amount of child support that the father was obligated to pay.


Mistrial Granted an New Attorney Assigned Based upon Failure of Attorney for the Child to Fulfill Attorney's Obligations under 22 Nycrr 7.2 (D) to Advocate Child’s Wishes

In Michael H v April H,--- N.Y.S.2d ----, 2011 WL 6015796 (N.Y.Fam.Ct.) on October 4, 1999, the Court issued an Order awarding April "H ("the mother") and Michael "H." ( "the father") joint legal custody of the subject child, Seth "H." with the mother having
primary physical custody of the subject child subject to a schedule of visitation
for the father. On August 3, 2011, the father filed a modification petition seeking sole legal and physical custody. The father alleged among other things, that the child has resided with the father since June 22, 2011, when the mother essentially kicked the child out of her home. During the trial, held on November 2, 2011, the Court conducted a Lincoln hearing to take the subject child's testimony under oath. See, Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 247 N.E.2d 659 [1969]. During the Lincoln hearing, the child, a mature fourteen year old, expressed a clear position to the Court and a reasonable basis for his position. During closing arguments, the Attorney for the Child advocated for a disposition that directly contradicted the wishes of the child as expressed in the Lincoln hearing.
As a result of the Attorney for the Child's closing arguments, the Court became concerned that the Attorney for the Child was not fulfilling her obligations under 22 NYCRR 7.2(d). This section requires the Attorney to zealously advocate for the child's position. See, Krieger v. Krieger, 65 AD3d 1350, 886 N.Y.S.2d 463 [2d Dept 2009]; and Mark T. v. Joyanna U., 64 AD3d 1092, 882 N.Y.S.2d 773 [3d Dept 2009]. Except in two circumstances, the Attorney for the Child must be directed by the wishes of the child even when the attorney believes that what the child wants is not in the child's best interest. The first exception applies when the child is not capable of knowing, voluntary and considered judgment.. The second exception applies when the child's wishes are likely to result in substantial risk of imminent, serious harm to the child.
After considering the events of the trial, the Court, sua sponte, moved for a mistrial and an order assigning a new Attorney for the Child to represent the child's interests going forward based upon the apparent failure of the Attorney for the Child to fulfill the attorney's obligations under 22 NYCRR 7.2 (d). In the Court's opinion the mother in effect stated that that the child was capable of knowing, voluntary and considered judgment as those terms are used by 22 NYCRR 7.2(d). Neither the father nor the Attorney for the Child argued that the child was not capable of knowing, voluntary and considered judgment. The Attorney for the Child's credit frankly acknowledged that she failed to zealously advocate for her client during the closing argument. She acknowledged that although it was an honest mistake, it was a mistake.
The Court declared a mistrial. It found that counsel's error was not harmless. Reasonable minds could differ regarding what order served the best interest of the child
and therefore, closing arguments were important in this case. If counsel elects to
make a closing argument, the closing argument may not advocate for an outcome
which directly opposed the child's position (except in the two circumstances described above). Second, if the Court were to ignore the Attorney for the Child's closing argument placed upon the record and make a decision in this case based upon the rest of the record, the legitimacy of the judicial process could be reasonably questioned. If the Court were to decide in the mother's favor, a reasonable mind may be suspicious that the Court was, in fact, not ignoring the Attorney for the Child's argument. If the Court were to decide in the father's favor, a reasonable mind may be suspicious that the Court was trying to manipulate the outcome in order to render this issue meaningless. Third, the Court could not be certain of the scope of the Attorney for the Child's error. If the error went beyond closing argument, the scope of the evidence admitted may have been effected. Given the Court's decision to declare a mistrial, it was consistent with the administration of justice and the best interest of the child to relieve the Attorney for the Child of any further responsibilities in the matter and to assign a new attorney to represent the child's interests going forward. The Court considered whether or not this issue should be raised sua sponte and acknowledged that neither parent nor the Attorney for the Child raised the issue or asked for any relief as a result of the issue. However, the trial judge was the only person present during the Lincoln hearing other than the child and the Attorney for the Child and thus, the parents and their counsel did not have an opportunity to evaluate the testimony of the child. Furthermore, the Court has an obligation to ensure that an individual's right to zealous advocacy is protected.