New York Divorce and Family Law Blog: March 2018

Wednesday, March 21, 2018

Court of Appeals Establishes Guidelines for Disclosure Disputes involving Social Media Materials.

In Forman v. Henkin, __NY3d__ (2018), a personal injury case, the Court of Appeals rejected the notion that the account holder’s so-called “privacy” settings govern the scope of disclosure of social media materials. It agreed with other courts that commencement of a personal injury action renders a party’s entire Facebook account automatically discoverable. It held that rather than applying a one-size-fits-all rule, courts addressing disputes over the scope of social media discovery should employ well-established rules, there is no need for a specialized or heightened factual predicate to avoid improper “fishing expeditions.” In the event that judicial intervention becomes necessary, courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific “privacy” or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials.

The Court noted that in a personal injury case it is appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each. Temporal limitations may also be appropriate, for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation.

The Court observed that to the extent the account may contain sensitive or embarrassing materials of marginal relevance, the account holder can seek protection from the court (see CPLR 3103[a]). Here, for example, Supreme Court exempted from disclosure any photographs of plaintiff depicting nudity or romantic encounters.

Plaintiff suggested that disclosure of social media materials necessarily constitutes an unjustified invasion of privacy. The Court assumed for purposes of resolving the narrow issue before it that some materials on a Facebook account may fairly be characterized as private. It indicated that even private materials may be subject to discovery if they are relevant. For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.

Second Department Holds Defective Acknowledgement in Prenuptial Agreement Can be Cured by Extrinsic Proof of Notary who took signature.

In Koegel v Koegel, --- N.Y.S.3d ----, 2018 WL 736117, 2018 N.Y. Slip Op. 00833 (2d Dept., 2017), the Appellate Division observed that the Court of Appeals, in Galetta, left open the issue of whether a defective acknowledgment can be cured by extrinsic proof provided by the notary public who took a party’s signature, and held that under the circumstances of this case such proof remedied the defective acknowledgment.

At the outset it pointed out that Matisoff v Dobi, 90 N.Y.2d 127, 681 N.E.2d 376, 659 N.Y.S.2d 209, (1997) was not controlling here. In Matisoff, a case involving a postnuptial agreement in which the parties waived any rights of election provided by the EPTL, “it [wa]s undisputed…that the document was not acknowledged by the parties or anyone else” (90 NY2d at 130). The case at bar differed from Matisoff since here, there were certificates of acknowledgment of the signatures of Irene and the decedent, but the certificates did not contain the required language for acknowledgment as currently required by the Real Property Law. Similarly, reliance on D’Elia was misplaced since the agreement in that case was not acknowledged at the time of execution. The statement in D’Elia that “[i]t is uncontroverted that the parties’ postnuptial agreement was not properly acknowledged at the time that it was executed” (14 AD3d at 478) was not referring to a defective acknowledgment, but instead, to the absence of any acknowledgment,

In Galetta v Galetta, 21 N.Y.3d 186, 991 N.E.2d 684, 969 N.Y.S.2d 826 (2013) the parties executed a prenuptial agreement before different notaries at different times one week before their wedding took place in July 1997 (21 NY3d at 189). As here, it was undisputed that the signatures on the document were authentic and there was no claim that the agreement was procured through fraud or duress. The certificate of acknowledgment relating to the wife’s signature contained the proper language (see id. at 190). However, in the acknowledgment relating to the husband’s signature, the certificate failed to indicate that the notary “confirmed the identity of the person executing the document or that the person was the individual described in the document” (id.). The husband filed for divorce and the wife separately filed for divorce and for a declaration that the prenuptial agreement was unenforceable (see id.). The wife moved for summary judgment on her cause of action seeking declaratory relief, contending that the agreement was invalid because the certificate of acknowledgment relating to the husband’s signature did not comport with the Real Property Law requirements. The husband opposed the motion on the basis that the language of the acknowledgment substantially complied with the Real Property Law. He also submitted an affidavit from the notary who had witnessed his signature in 1997 and executed the certificate of acknowledgment (see id.). “The notary, an employee of a local bank where the husband then did business, averred that it was his custom and practice, prior to acknowledging a signature, to confirm the identity of the signer and assure that the signer was the person named in the document. He stated in the affidavit that he presumed he had followed that practice before acknowledging the husband’s signature” (id. [emphasis added]). The Supreme Court denied the wife’s motion, finding that the acknowledgment substantially complied with the requirements of the Real Property Law. A divided Fourth Department affirmed the order albeit on the different ground that, although the acknowledgment was defective, the deficiency could be cured after the fact and that the notary’s affidavit raised a triable issue of fact as to whether the agreement had been properly acknowledged when executed (see 96 AD3d 1565, revd 21 NY3d 186)

With respect to the issue of whether the certificate of acknowledgment accompanying the husband’s signature was defective, the Court of Appeals determined that without stating” to me known and known to me,’” the certificate failed to indicate either that the notary knew the husband or had ascertained through some form of proof that the husband was the person described in the prenuptial agreement (21 NY3d at 193). The Court noted that: “At the time the parties here signed the prenuptial agreement in 1997, proper certificates of acknowledgment typically contained boilerplate language substantially the same as that included in the certificate accompanying the wife’s signature: before me came (name of signer) to me known and known to me to be the person described in and who executed the foregoing instrument and duly acknowledged to me that s/he executed the same’” (id. [footnote omitted]). The Court pointed out that the” to me known and known to me to be the person described in the document’” language “satisfied the requirement that the official indicate that he or she knew or had ascertained that the signer was the person described in the document” (id.). It also observed that” [t]he clause beginning with the words and duly acknowledged’ established that the signer had made the requisite oral declaration” (id.). Given the failure to include this language in the acknowledgment of the husband’s signature, the Court of Appeals agreed with the Fourth Department that the acknowledgment did not conform with statutory requirements (see id. at 194).

Since the Court of Appeals determined that the certificate was defective, it then turned to address the question of “whether such a deficiency can be cured and, if so, whether the affidavit of the notary public prepared in the course of litigation was sufficient to raise a question of fact precluding summary judgment in the wife’s favor” (id.). However, in looking at the proof submitted by the husband, the Court of Appeals stated that it “need not definitively resolve the question of whether a cure is possible because, similar to what occurred in Matisoff, the proof submitted here was insufficient” (id. at 197).

The Court of Appeals analyzed in detail the affidavit of the notary submitted by the husband in opposing the wife’s summary judgment motion. The Court pointed out that the notary only recognized his own signature and had no independent recollection of notarizing the subject document (see id.). Given these statements, the Court found that the husband could not rely on the notary’s custom and practice to fill in the evidentiary gaps because “the averments presented by the notary public in this case [we]re too conclusory to fall into this category” (id.). Further, the Court stated that if the notary had recalled acknowledging the husband’s signature, “he might have been able to fill in the gap in the certificate by averring that he recalled having confirmed [the husband's] identity, without specifying how” (id. at 198). However, since the notary did not recall acknowledging the husband’s signature and was attempting to rely on custom and practice evidence, the Court stated that “it was crucial that the affidavit describe a specific protocol that the notary repeatedly and invariably used — and proof of that type is absent here” (id.).

In Koegel, the Appellate Division found that the situation at bar was akin to the hypothetical described by the Court of Appeals in Galetta, where the notaries here, the decedent’s law partner and Irene’s attorney, actually recalled acknowledging the signatures at issue. In such a situation, the Court of Appeals explained that the confirmation of the identity of the signer, through an affidavit, is sufficient without having to explain how the identity was confirmed (see id.). Although, in support of her motion, Irene submitted the prenuptial agreement with the defective acknowledgments to demonstrate that the agreement was invalid, the Surrogate’s Court properly declined to dismiss the petition on the basis of documentary evidence in light of John’s submission in opposition to her motion. To supplement the allegations of the petition, in opposition, John submitted affidavits which showed that the petition may be meritorious in spite of the documentary evidence. In response to the assertion that the prenuptial agreement was invalid as improperly acknowledged, the affidavits of Donovan and Jacobsen specifically stated that each observed the document being signed, took the acknowledgment in question, and personally knew the individual signer signing before him. In so doing, the defect in the acknowledgment was cured in order to give vitality to the expressed intent of the parties set forth in the prenuptial agreement. Accordingly, the Surrogate’s Court properly denied Irene’s motion pursuant to CPLR 3211(a)(1) and Domestic Relations Law §236(B)(3) to dismiss the petition. Therefore, the order was affirmed.

Second Department Joins First and Third Department Holding Presumption of legitimacy applicable to Same-Sex Marriages

New York has a strong policy in favor of legitimacy. Matter of Anonymous, 74 Misc.2d 99, 104, 345 N.Y.S.2d 430 [1973]. At common law there is a rebuttable presumption that the child, a child born to a married woman, is the legitimate child of both parties. Matter of Findlay, 253 N.Y. 1, 7, 170 N.E. 471 [1930]. The presumption that a child born to a marriage is the legitimate child of both parents ‘is one of the strongest and most persuasive known to the law.” State of New York ex rel. H. v. P., 90 A.D.2d 434, 437, 457 N.Y.S.2d 488 [1982]; Matter of Findlay, 253 N.Y. 1, 7, 170 N.E. 471 [1930].

The presumption of legitimacy as codified in Domestic Relations Law §24 is that a child “born of parents who prior or subsequent to the birth of such child shall have entered into a civil or religious marriage, or shall have consummated a common-law marriage where such marriage is recognized as valid”, is the legitimate child of both birth parents. See also Family Ct Act § 417.

In Matter of Maria-Irene D. (Carlos A. v. Han Ming.), 153 A.D.3d 1203, 1205 (1st Dept., 2017) the Appellate Division, first department held that the “presumption of legitimacy”, applies to a child born to a same-sex married couple. There the court applied the presumption of legitimacy to a married gay male couple, one member of whom wanted to vacate the adoption of their child by the other man’s new partner.

In Matter of Christopher YY. v Jessica ZZ., _____ AD3d _____, 2018 NY Slip Op 00495, *5-6 (3d Dept., 2017) the Third Department held that the “presumption of legitimacy” applied to a a married lesbian couple and that, therefore, a paternity petition filed by the male sperm donor must fail. The court pointed out that typically the presumption is rebuttable in the law” upon clear and convincing evidence excluding the [spouse] as the child’s [parent] or otherwise tending to prove that the child was not the product of the marriage,” quoting Matter of Beth R. v. Ronald S., 149 A.D.3d at 1217. In cases involving opposite-gender spouses, the rebuttal happens, for instance, with “proof that a husband did not have ‘access to’ his wife at the time that she conceived a child and he acknowledged that he was not the biological father, combined with testimony that the child was conceived during a trip with the putative father with whom his wife was in a monogamous relationship,” citing Matter of Beth R. v. Ronald S. But applying case law on rebuttal to same-gender spouses is “inherently problematic, as it is not currently scientifically possible for same-gender couples to produce a child that is biologically the product of the marriage,” and the “changing legal and social landscape requires reexamination of the traditional analysis governing the presumption of legitimacy.”

In Matter of Joseph O. v Danielle B. ,2018 NY Slip Op 01192 (2d Dept., 2018) the Appellate Division, Second Department observed that it is an established legal presumption that every child born during a marriage is the legitimate child of both spouses (see Domestic Relations Law § 24[1]; Family Ct Act § 417) and that the respondents correctly contended that because the child was conceived and born to the lesbian respondents during their marriage, there was a presumption that the child is the legitimate child of both respondents (see Domestic Relations Law § 24[1]; Family Ct Act § 417; Matter of Christopher YY. v Jessica ZZ., _____ AD3d _____, 2018 NY Slip Op 00495, *5-6; Matter of Maria-Irene D. [Carlos A.-Han Ming T.], 153 AD3d 1203, 1205). The presumption of legitimacy is rebuttable (see Matter of Findlay, 253 NY 1, 7), and thus its application alone did not warrant the summary denial of a paternity petition brought by the sperm donor. However, the Appellate Division found that the respondents were entitled to dismissal of the paternity petition on the ground of equitable estoppel and it was not necessary to determine if the presumption of legitimacy was rebutted.

Table of Effective Dates of Changes to Poverty Income Guidelines Amount, Self-Support Reserve, Combined Parental Income Amount and Income Cap Since 2003.

Table of Effective Dates of Changes to Poverty Income Guidelines Amount, Self-Support Reserve, Combined Parental Income Amount and Income Cap Since 2003.

The maintenance and child support provisions of Domestic Relations Law §§ 236 and 240, and Family Court Act §§ 412 and 413 refer to “income cap” with regard to maintenance and temporary maintenance awards, and “combined parental income” with regard to child support awards. These statutes also refer to the terms “self-support reserve” and the “poverty income guidelines amount for a single person.”

For purposes of Child support awards pursuant to Domestic Relations Law § 240 the poverty income guidelines amount, self-support reserve, and combined parental income amount change yearly on March 1. For purposes of Maintenance and Temporary Maintenance awards pursuant to Domestic Relations Law § 236[B][5] and [B][5-a] the Income Cap for Maintenance and Temporary maintenance changes yearly on January 31. Different versions of Domestic Relations Law §§ 236 and 240 apply in matrimonial actions depending upon the date of the commencement of an action, and different amounts apply depending upon the date of the application. The following table has been created to enable counsel to quickly find the amount applicable to actions commenced since 2003 and is available for download, with footnote references and links to charts, on our website at www.nysdivorce.com

Table of Poverty Income Guidelines Amount, Self-support reserve, Combined Parental Income and Income Cap amounts since 2003.

Table I. Poverty Income Guidelines Amount, Self-support reserve, and Combined Parental Income

April 1, 2003