Court of Appeals
Dismissal of A Neglect Petition Divests Family Court of Jurisdiction
to Issue Further Orders or Impose Additional Conditions on
A Child's Release
In Matter of Jamie J., 2017 WL 5557887, 2017 NY Slip Op 08161 (2017) the
Court of Appeals, in an opinion by Judge Wilson, held that Family Court lacks
subject matter jurisdiction to conduct a permanency hearing pursuant to Family
Court Act article 10-A once the underlying neglect petition brought under
Article 10 has been dismissed for failure to prove neglect. The dismissal of a
neglect petition terminates Family Court's jurisdiction.
Jamie J. was born in November 2014. A week later, at the request of the
Wayne County Department of Social Services, Family Court directed her temporary
removal from Michelle E.C.'s custody pursuant to an ex parte pre-petition order
under FCA § 1022. Four days after that,
the Department filed its FCA article 10 neglect petition. More than a year
later, on the eve of the fact-finding hearing held to determine whether it
could carry its burden to prove neglect, the Department moved to amend its
petition to conform the pleadings with
the proof. Family Court denied that eleventh-hour motion as unfairly
prejudicial to Michelle E.C. and to the attorney for Jamie J. After hearing
evidence, Family Court found that the Department failed to prove neglect, and
therefore dismissed the petition. The Department did not appeal that decision.
Family Court did not release Jamie J. into her mother's custody when it
dismissed the article 10 neglect petition. Instead, at the Department's
insistence and over Michelle E.C.'s objection, it held a second permanency
hearing, which had been scheduled as a matter of course during the statutorily
required first permanency hearing in the summer of 2015. Family Court and the
Department contended that, even though the Department had failed to prove any
legal basis to remove Jamie J. from her mother, article 10-A of the FCA gave
Family Court continuing jurisdiction over Jamie J. and entitled it to continue
her placement in foster care. Family Court held the second permanency hearing
on January 19, 2016. There, Michelle E.C. argued, as she did here, that the
dismissal of the neglect proceeding ended Family Court's subject matter
jurisdiction and should have required her daughter's immediate return. Solely
to expedite her appeal of that issue, Michelle E.C. consented to a second
permanency hearing order denying her motion to dismiss the proceeding and
continuing Jamie J.'s placement in foster care. The Appellate Division, with
two Justices dissenting, affirmed.
Judge
Wilson observed that the appeal presented a straightforward question of
statutory interpretation: does FCA article 10-A provide an independent grant of
continuing jurisdiction that survives the dismissal of the underlying article
10 neglect petition? The Court rejected the Departments “hyperliteral reading
of section 1088, divorced from all context,” to argue that Family Court's
pre-petition placement of Jamie J. under section 1022 triggered a continuing
grant of jurisdiction that survived the eventual dismissal of the neglect petition.
In other words, even if the Family Court removes a child who has not been
neglected or abused, it has jurisdiction to continue that child's placement in
foster care until and unless it decides otherwise. The Court held that Section
1088's place in the overall statutory scheme, the legislative history of
article 10-A, and the dictates of parents' and children's constitutional rights
to remain together compelled the opposite conclusion. Family Court's
jurisdiction terminates upon dismissal of the original neglect or abuse
petition. Observing that the Court held in Matter of Tammie Z., "if abuse
or neglect is not proved, the court must dismiss the petition . . . at which
time the child is returned to the parents" (66 NY2d 1, 4-5 [1985]), nothing in the legislative history of article
10-A suggested that its drafters intended to overturn the long-established
rule, promulgated by pre-2005 decisions of the Court and of the Appellate
Division, that the dismissal of a neglect petition divests Family Court of
jurisdiction to issue further orders or impose additional conditions on a
child's release. Instead, that history demonstrated that the drafters intended
only to correct a technical issue that plagued article 10 and threatened the
State's continued access to federal funding under Title IV of the Social
Security Act. The order was reversed and the January 26, 2016 permanency order
vacated.
Appellate Division, First Department
Appellate Division holds that under circumstances
of case, court properly awarded prospective maintenance only. Credit properly denied
for Payments towards mortgage and maintenance on marital residence. Such
payments were made in satisfaction of defendant’s own contractual obligations
and did not constitute voluntary payments contemplated under Domestic Relations
Law § 236(B) (7) (a)
In
Aristova v. Derkach, 2017 WL 5575056 (1s Dept., 2017) on December 27, 2004, the parties signed an
agreement, effective as of August 1, 2004 (the Termination Agreement), pursuant
to which they terminated a preexisting separation agreement but agreed, among
other things, that property each had acquired before August 1, 2004 would be
separate property.
The
Appellate Division held that the court correctly determined equitable
distribution in accordance with the terms of the Termination Agreement, upon its
finding after trial that defendant failed to prove that the Termination
Agreement, which was written, signed, and properly acknowledged, was invalid.
While he was not represented by counsel, defendant, an engineer with an MBA,
was sufficiently sophisticated to be aware that he might need counsel,
particularly given plaintiff’s forthright explanation that her purpose in
entering into the agreement was to protect her rights to an apartment she had
purchased before August 1, 2004, and the fact that she had given him a week to
review the agreement before signing it. Moreover, plaintiff, although an
attorney, was not a matrimonial lawyer, and needed the help of online forms in
drafting the agreement.
The
Appellate Division held that under the circumstances of this case, the court
properly awarded prospective maintenance only. During the first two years
following commencement of the action, the parties lived together in the marital
residence with their children. The trial evidence showed that, during that period,
plaintiff voluntarily bore the majority of the family’s expenses, including
costs associated with the parties’ cooperative apartment, and the family’s
medical and dental insurance costs, as well as groceries and other family
expenses. Defendant did not move for pendente lite relief until two months
before the scheduled trial date.
The
Appellate Division rejected Defendant’s contention that he was entitled to a
credit against the retroactive child support award because it was unsupported
by a showing of any payments he made for child-related expenses. To the extent
he relied on his payments towards the mortgage and maintenance on the marital
residence, it found that these payments were made in satisfaction of
defendant’s own contractual obligations and did not constitute the voluntary
payments contemplated under Domestic Relations Law § 236(B) (7) (a) (see Krantz
v. Krantz, 175 A.D.2d 865 [2d Dept 1991], accord Sergeon v. Sergeon, 216 A.D.2d
122 [1st Dept 1995]).
Appellate
Division, Second Department
Family Court Act § 424–a(a) requires that
parties to child support proceedings submit most recently filed income tax returns.
Where petitioner mother failed without good cause to submit most recent tax
returns Support Magistrate improvidently exercised discretion in failing to adjourn
proceeding until mother filed required documents
In Matter of Feixia Wi-Fisher v
Michael, --- N.Y.S.3d ----, 2017 WL 5473843 (2d Dept., 2017) the Appellate
Division held that the Support Magistrate properly imputed income to the father
based on his future earning capacity and the funds he received from his wife to
pay his expenses, where he had access to his wife’s bank accounts which were
used to pay the household’s expenses.
The
Appellate Division observed that Family Court Act § 424–a(a) requires that
parties to child support proceedings submit certain required financial
documents, including the party’s most recently filed state and federal income
tax returns. When a petitioner fails without good cause to file the required
documents, “the court may on its own motion or upon application of any party
adjourn such proceeding until such time as the petitioner files with the court
such statements and tax returns” (Family Ct Act § 424–a[c] ). Here, the mother
failed without good cause to submit her most recent tax returns. Further, her
testimony and the financial documents she did submit did not remedy her failure
to make complete financial disclosure, since the mother’s financial disclosure
affidavit contained inconsistencies, her claimed rental income was
unsubstantiated, and her testimony regarding her income and expenses was
determined to be incredible. Accordingly, the Support Magistrate improvidently
exercised her discretion in failing to adjourn the proceeding until such time
as the mother filed the required documents. It remitted the matter for a new
determination of the father’s child support obligation following the mother’s
submission of the required financial disclosure.
Error to awarded plaintiff portion of
appreciation in value of defendant’s dental practice during marriage where she
failed to establish the baseline value of the business and the extent of its
appreciation
In Lestz v Lestz, 2017 WL 5473999
(2d Dept., 2017) the parties married in 1984. At that time, the defendant, who
had been a dentist for at least five or six years, had his own dental practice
at which the plaintiff was an employee. In 2007, the plaintiff commenced the
divorce action. After a nonjury trial, the Supreme Court awarded the plaintiff
a portion of the appreciation in value of the defendant’s dental practice
during the marriage. The Appellate Division reversed. It observed that an
increase in the value of separate property is considered separate property
‘except to the extent that such appreciation is due in part to the
contributions or efforts of the other spouse. (Domestic Relations Law § 236[B]
[1] [d] [3]). The nontitled spouse has the burden of establishing that any
increase in the value of the separate property was due at least in part to his
or her direct or indirect contributions or efforts during the marriage. Here,
the Supreme Court improperly awarded the plaintiff the sum of $91,500,
representing, in effect, 25% of the appreciation in value during the marriage
of the defendant’s dental practice, which was his separate property. Although
the evidence at trial demonstrated that the plaintiff made limited
contributions with respect to the practice, the plaintiff did not offer any
proof of the value of the dental practice at the time of the marriage.
Accordingly, she failed to satisfy her burden of establishing “the baseline
value of the business and the extent of its appreciation” (Morrow v. Morrow, 19
A.D.3d at 254, 800 N.Y.S.2d 378 ), and the court erred in making an award to
the plaintiff on this basis (see Ceravolo v. DeSantis, 125 A.D.3d 113, 117–118,
1 N.Y.S.3d 468; Clark v. Clark, 117 A.D.3d at 669, 985 N.Y.S.2d 276; Davidman
v. Davidman, 97 A.D.3d 627, 628, 948 N.Y.S.2d 639; Albanese v. Albanese, 69
A.D.3d 1005, 1006, 892 N.Y.S.2d 631; Burgio v. Burgio, 278 A.D.2d 767, 769, 717
N.Y.S.2d 769).
Appellate
Division, Third Department\
Postsecondary education expenses are not subject to collection through
income execution
In Dillon v Dillon, --- N.Y.S.3d
----, 2017 WL 5489353, 2017 N.Y. Slip Op. 08062 (3d Dept., 2017) the Appellate
Division held, inter alia, that Family Court erred in directing that the
mother’s payments toward the child’s
college education be made through the Support Collection Unit, as
“postsecondary education expenses [are] a separate item in addition to the
basic child support obligation” (Matter of Cohen v. Rosen, 207 A.D.2d 155, 157
[1995], lv denied 86 N.Y.2d 702 [1995]; see Cimons v. Cimons, 53 AD3d 125, 131
[2008]; Tryon v. Tryon, 37 AD3d 455, 457 [2007] ), not subject to collection
through income execution (see generally CPLR 5241, 5242).
Appellate Division, Fourth Department
A Court Errs In Granting A QDRO More Expansive Than an Underlying Written
Separation Agreement Regardless or Whether the Parties or Their Attorneys
Approved the QDRO
In
Sanitllo v Santillo, --- N.Y.S.3d ----, 2017 WL 5505810, 2017 N.Y. Slip Op.
08155 (4th Dept., 2017) the parties divorced in 1994, and the
separation agreement incorporated but not merged into their judgment of divorce
provided that plaintiff was entitled to a share of defendant’s pension benefits
“until her death or remarriage, or [defendant’s] death,” whichever occurred
first. Although plaintiff remarried in August 1995, defendant’s attorney
executed a qualified domestic relations order (QDRO) that was entered in
February 1996. The QDRO did not provide that plaintiff’s entitlement to a share
of defendant’s pension would terminate upon her remarriage. In April 2016,
defendant filed his retirement documents with the New York State and Local
Retirement System and discovered the existence of the QDRO. Shortly thereafter,
he moved for, inter alia, an order vacating the QDRO inasmuch as it is
inconsistent with the separation agreement. The Appellate Division agreed with
defendant that the court erred in denying his motion to vacate the QDRO. A QDRO
obtained pursuant to a separation agreement ‘can convey only those rights ...
which the parties [agreed to] as a basis for the judgment’ “(Duhamel v. Duhamel
[appeal No. 1], 4 AD3d 739, 741 [4th Dept 2004], quoting McCoy v. Feinman, 99
N.Y.2d 295, 304 [2002]). Thus, it is well established that a court errs in
granting a QDRO more expansive than an underlying written separation
agreement”, regardless whether the parties or their attorneys approved the QDRO
without objecting to the inconsistency (see Page v. Page, 39 AD3d 1204, 1205
[4th Dept 2007]). Under such circumstances, the court has the authority to
vacate or amend the QDRO as appropriate to reflect the provisions of the
separation agreement (see Beiter v. Beiter, 67 AD3d 1415, 1417 [4th Dept 2009]).
It found that the QDRO should never have been entered in the first instance
because the clear and unambiguous language of the separation agreement provided
that plaintiff’s rights in defendant’s pension benefits had terminated upon her
remarriage.
The
Appellate Division rejected plaintiff’s contention that defendant was barred by
laches from seeking to vacate the QDRO. “The defense of laches requires both
delay in bringing an action and a showing of prejudice to the adverse party”
(Beiter, 67 AD3d at 1416]; see Matter of Sierra Club v. Village of Painted Post,
134 AD3d 1475, 1476 [4th Dept 2015]). Even assuming, arguendo, that there was a
delay in seeking to vacate the QDRO, it concluded that plaintiff did not
demonstrate that she was prejudiced by that delay.
