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Sunday, December 02, 2018

Recent Decisions and Legislation September 16, 2018 to November 16, 2018

November 16, 2018

Matrimonial Rules and Forms Revised Effective September 30, 2018

By administrative order of the Chief Administrative Judge of the Courts section 202.50(b)(3) of the Uniform Civil Rules for the Supreme Court and the County Court (22 NYCRR § 202.50[b][3]), were amended effective September 30, 2018. The amended rules read as follows:
Section 202.50. Proposed judgments in matrimonial actions; forms
 (a) Form of judgments. Findings and conclusions shall be in a separate paper from the judgment, which papers shall be labelled ”FINDINGS OF FACT AND CONCLUSIONS OF LAW” and ”JUDGMENT,” respectively.

(b) Approved forms.

(1) Contested actions. The paragraphs contained in Chapter III, Subchapter B of Subtitle D (Forms) of this Title, modified or deleted as may be necessary to conform to the law and facts in a particular action, shall be used in the preparation of ”FINDINGS OF FACT AND CONCLUSIONS OF LAW,” ”JUDGMENT,” or ”REFEREE'S REPORT OF FINDINGS OF FACT AND CONCLUSIONS OF LAW.” Parenthesized portions indicate alternative provisions.

(2) Uncontested Actions. Parties in uncontested matrimonial actions shall use the forms and instructions in the Unified Court System Uncontested Divorce Packet as set forth in section 202.21 (i)(2) of this Part, unless the court permits otherwise pursuant to that section. The instructions to said Packets shall instruct litigants that they may include a request for transfer of title to the marital home, cooperative apartment or condominium apartment in their request for ancillary relief in the summons with notice or verified complaint, and shall provide instructions as to what must be done to effectuate a transfer. The instructions shall also advise litigants that, if they have a mortgage, they should speak with an attorney as well as the bank before the transfer is made.

(3) Additional Requirement with Respect to Uncontested and Contested Judgments of Divorce. In addition to satisfying the requirements of paragraphs (1) and (2) of this subdivision, every judgment of divorce, whether uncontested or contested, shall include language substantially in accordance with the following decretal paragraphs which shall supersede any inconsistent decretal paragraphs currently required for such forms:

ORDERED AND ADJUDGED that the Settlement Agreement entered into between the parties on the ___ day of _____, [ ] an original OR [ ] a transcript of which is on file with this Court and incorporated herein by reference, shall survive and shall not be merged into this judgment,* and the parties are hereby directed to comply with all legally enforceable terms and conditions of said agreement as if such terms and conditions were set forth in their entirety herein; and it is further

*In contested actions, this paragraph may read either [shall survive and shall not be merged into this judgment] or [shall not survive and shall be merged into this judgment].

ORDERED AND ADJUDGED, that the Supreme Court shall retain jurisdiction to hear any applications to enforce the provisions of said Settlement Agreement or to enforce or modify the provisions of this judgment, provided the court retains jurisdiction of the matter concurrently with the Family Court for the purpose of specifically enforcing, such of the provisions of that (separation agreement) (stipulation agreement) as are capable of specific enforcement to the extent permitted by law, and of modifying such judgment with respect to maintenance, support, custody or visitation to the extent permitted by law, or both; and it is further

ORDERED AND ADJUDGED, that any applications brought in Supreme Court to enforce the provisions of said Settlement Agreement or to enforce or modify the provisions of this judgment shall be brought in a County wherein one of the parties resides; provided that if there are minor children of the marriage, such applications shall be brought in a county wherein one of the parties or the child or children reside, except. in the discretion of the judge, for good cause. Good cause applications shall be made by motion or order to show cause. Where the address of either party and any child or children is unknown and not a matter of public record, or is subject to an existing confidentiality order pursuant to DRL section 254 or FCA section 154-b, such applications may be brought in the county where the judgment was entered; and it is further

(4) Additional Requirement with Respect to Uncontested and Contested Judgments of Divorce. In addition to satisfying the requirements of paragraphs (1), (2), and (3) of this subdivision, every judgment of divorce, whether uncontested or contested, shall include language substantially in accordance with the following decretal paragraph:

ORDERED AND ADJUDGED that pursuant to pursuant to the [ ] parties' Settlement Agreement dated ___________________ OR [ ] the court's decision after trial, all parties shall duly execute all documents necessary to formally transfer title to real estate or co-op shares to the [ ] Plaintiff OR [ ] Defendant as set forth in the [ ] parties' Settlement Agreement OR [ ] the court's decision after trial, including, without limitation, an appropriate deed or other conveyance of title, and all other forms necessary to record such deed or other title documents (including the satisfaction or refinance of any mortgage if necessary) to convey ownership of the marital residence located at _________________________, no later than ________________________; OR [ ] Not applicable: and it is further
(c) Judgments submitted to the court shall be accompanied by a complete form UCS 111 (Child Support Summary Form).

            By administrative order of the Chief Administrative Judge of the Courts the Unified Court System Uncontested Divorce Packet Instructions and Judgment of Divorce (Form UD-11) for use in undefended matrimonial actions pursuant to 22 NYCRR §§ 202.21(i) and 202.50, were repealed and new versions of that form and instructions were enacted as follows: Instructions (rev. 9/30/18); Judgment of Divorce (Form UD-11) (rev. 9/30/18).

            The administrative order was effective for divorce submissions made on or after
September 30, 2018. However, divorce submissions made using the earlier version of the divorce judgment were still accepted through October 30, 2018.

            The following are links to the revised forms and instructions

            See NYS Register October 31, 2018, p. 97

Appellate Division, First Department

Refusal to read order is not a defense to enforcement

            In Matter of Rosa N v Luis F,  --- N.Y.S.3d ----, 2018 WL 5913829, 2018 N.Y. Slip Op. 07682 (1st Dept., 2018) at the violation hearing, respondent admitted to sending petitioner texts after receiving the order of protection, which he said he refused to read. The Appellate Division held that Family Court properly rejected respondent’s defense based on his refusal to read the order.

Appellate Division, Fourth Department

General rule regarding downward modification of support should not be inflexibly applied where a parent quits a job for a sufficiently compelling reason

            In Matter of Parmenter v Nash, --- N.Y.S.3d ----, 2018 WL 5875499, 2018 N.Y. Slip Op. 07553 (4th Dept.,2018) the Appellate Division observed that as a general rule, a parent who voluntarily quits a job will not be deemed without fault in losing such employment. Nevertheless, it held that “the general rule should not be inflexibly applied where a parent quits a job for a sufficiently compelling reason, such as the need to live closer to a child. As one court has explained, a “parent who chooses to leave his [or her] employment rather than [live] hundreds of miles away from his [or her] children is not voluntarily unemployed or underemployed. Instead, he [or she] is a loving parent attempting to do the right thing for his [or her] children. To punish such a parent by requiring higher child support ... is neither good law nor good policy” (Abouhalkah v. Sharps, 795 N.E.2d 488, 492 [Ind. Ct. App. 2003] ). “  The equities weighed heavily in favor of the father given that the mother moved the child hundreds of miles away from the father and created the difficulties inherent in long-distance parenting. The father quit his job in Virginia and relocated to Onondaga County in order to rehabilitate his relationship with his son, which had suffered since the child was moved to New York. Under these circumstances, it concluded that the father demonstrated the requisite change in circumstances necessary to reexamine his child support obligation.

Where parent is recieient of public assistance imputation of income is a proper basis to refuse to cap unpaid child support arrears at $500 under Family Ct Act § 413[1][g]

            In Matter of Mandile v Deshotel, --- N.Y.S.3d ----, 2018 WL 5875868, 2018 N.Y. Slip Op. 07571 (4th Dept., 2018) the Appellate Division affirmed an order that, inter alia, confirmed the determination of the Support Magistrate that the mother willfully violated a prior child support order and awarded her judgment for arrears. It, among other things, rejected  the mother’s contention that the court erred in refusing to cap her unpaid child support arrears at $500. It observed  that “here the sole source of a noncustodial parent’s income is public assistance, unpaid child support arrears in excess of five hundred dollars shall not accrue ( Family Ct Act § 413[1][g] ). Although the mother received public assistance and did not maintain employment, circumstantial evidence suggested that she had access to, and received, financial support from her live-in paramour. Inasmuch as  a court need not rely upon a party’s own account of his or her finances, but may impute income to a party based on money received from friends and relatives” it concluded that the court did not err in denying the mother’s motion to cap her arrears at $500 (cf. Edwards, 233 A.D.2d at 885, 649 N.Y.S.2d 618).

November 1, 2018

Court of Appeals

Court of Appeals Holds that ACS failure to offer or provide mother with certain services claimed as “reasonable accommodations” under the Americans with Disabilities Act (ADA) at time six-month permanency reporting period ended did not preclude finding it made “reasonable efforts” toward family reunifications, as required by Family Court Act § 1089.

            In  Matter of Lacee L v Stephanie L, --- N.E.3d ----, 2018 WL 5046100, 2018 N.Y. Slip Op. 06966 (2018) Stephanie L sought to raise  the issue: can Family Court find that the New York City Administration for Children’s Services (ACS) made “reasonable efforts” toward family reunifications, as required by Family Court Act § 1089, if ACS failed to provide “reasonable accommodations” required by the Americans with Disabilities Act (ADA), which requires that governmental agencies make “reasonable accommodations” to ensure disabled persons have access to their services (42 USC § 12131 [2] )? Judge Wilson, writing for the Court noted that Stephanie L. had not identified any services allegedly required by the ADA that were not also required under New York law. 

            Applying section 1089, Family Court ordered ACS to provide the services Stephanie L. claimed as “reasonable accommodations” under the ADA. Family Court noted that Stephanie appeared generally to have received those services.  ACS did not provide its services eagerly or promptly, and provided some only because of stern admonitions from Family Court and vigorous follow up from Stephanie’s counsel. The Appellate Division determined that Family Court “look[ed] to the ADA’s standards ... evaluat[ed] the agency’s efforts in that light, [and] found that the agency tailored its efforts to the mother’s needs” (Matter of Lacee L. (Stephanie L.—Dekodia L.), 153 A.D.3d 1151, 60 N.Y.S.3d 164 [1st Dept. 2017]). Family Court’s determination – affirmed by the Appellate Division – that ACS had made “reasonable efforts” was supported by the record. The Court affirmed.

            The Court of Appeals held that although ACS must comply with the ADA, ACS’s failure to offer or provide certain services at the time a six-month permanency reporting period ends does not necessarily mean that ACS has failed to make “reasonable efforts.” Family Court is not required to determine compliance with the ADA in the course of a permanency proceeding. The ADA’s “reasonable accommodations” test is often a time- and fact-intensive process with multiple layers of inquiry. That adjudication is best left to separate administrative or judicial proceedings, if required (see 28 CFR §§ 35.107[b], 35.170; 42 USC § 12133). Family Court is charged with assessing whether reasonable efforts were made to achieve the permanency goal “in accordance with the best interest and safety of the child” (Family Court Act § 1089 [d]). The record reflected that Family Court was working assiduously to evaluate and accommodate Stephanie L.’s need for services tailored to her own disabilities as they related to parenting Lacee L. Stephanie L. disclaimed any attempt to have brought an ADA claim in Family Court and did not prove in any other forum an ADA violation, but instead argued that certain accommodations would have been required under the ADA. The ADA contains no fixed time period for compliance, and the reasonableness of efforts to provide an accommodation will vary with the facts of each case. New York’s six-month measuring period is not a final determination as to an agencies’ efforts to provide services, but a periodic checkpoint to help ensure that at-risk children are not falling through bureaucratic fissures (see Family Court Act § 1089). Family Court has substantial discretion to make factual determinations that ACS’ inchoate attempts to provide services have been “reasonable.” In other words, even as to accommodations that might be required under the ADA, the failure of ACS to offer or deliver such accommodations by the end of a given measuring period does not necessarily mean that ACS has violated the ADA or failed to make reasonable efforts under New York law.

Appellate Division, Second Department

Voluntary Payments Made for The Support and Legal Obligations of a Spouse Should Be Applied as A Credit to The Calculation of Arrears Owed by The Payor Spouse

            In Stern v Stern, --- N.Y.S.3d ----, 2018 WL 5020059, 2018 N.Y. Slip Op. 06959
(2d Dept., 2018) in a preliminary conference order entered September 11, 2006, the parties addressed pendente lite relief. At that time, the defendant was voluntarily making payments to support the plaintiff and the children of the marriage, as well as paying the expenses of the household. The preliminary conference order provided as to pendente lite relief: “Status quo to be maintained. No motion at this time.” The stipulation was so-ordered by the Supreme Court. As a result, there was no separate order concerning spousal maintenance issued at that time. After a judgment of divorce was entered the plaintiff moved pursuant to Domestic Relations Law § 244, inter alia, for a money judgment against the defendant for unpaid maintenance arrears totaling $353,400, plus prejudgment interest, after crediting payments made by the defendant under an interim order dated January 22, 2009. The defendant opposed the motion, arguing, among other things, that he was entitled to credits totaling $393,516.53 against his maintenance obligation. The Supreme Court, inter alia, granted plaintiff a money judgment for unpaid maintenance arrears of $353,400 and for an award of prejudgment interest on that sum, retroactive to the date of default.

             The Appellate Division held that voluntary payments made for the support and legal obligations of a spouse should be applied as a credit to the calculation of arrears owed by the payor spouse (see McKay v. Groesbeck, 117 A.D.3d 810, 811, 985 N.Y.S.2d 686; Heiny v. Heiny, 74 A.D.3d 1284, 1288, 904 N.Y.S.2d 191). When the payor spouse relieves the other spouse from paying obligations for which the other spouse would be responsible, such payments must be considered as satisfying, in whole or part, maintenance and/or child support. It found that defendant was entitled to credits against his maintenance obligation as established in the judgment of divorce with regard to the plaintiff’s share of such expenses such as mortgage, real estate taxes, and automobile insurance payments. The Court disagreed with the plaintiff’s contention that the defendant’s voluntary payments made pursuant to a preliminary conference order, which did not specifically enumerate the payments to be made, cannot qualify as “payments of pendente lite spousal maintenance actually made pursuant to Court Order.” The preliminary conference order, as so-ordered by the Supreme Court, plainly contemplated that the defendant would continue to make voluntary payments for the benefit of the plaintiff and the parties’ children. To deny the payor spouse a credit for payments made on account of the other spouse’s expenses would not only be inequitable by providing a windfall for the benefitted spouse, but it would also discourage voluntary support payments during the pendency of matrimonial actions and likely cause a precipitous rise of pendente lite motion practice by nonmonied spouses. The matter was remitted to the Supreme Court, Nassau County, for a hearing to determine which of the payments claimed by the defendant, if any, constituted appropriate credits against maintenance as provided in the judgment of divorce, and a new determination

Appellate Division Holds that placement in a juvenile delinquency matter does not satisfy the dependency requirement necessary for a SIJS finding

            In Matter of Keanu S, --- N.Y.S.3d ----, 2018 WL 5020237, 2018 N.Y. Slip Op. 06918 (2d Dept., 2018) the Appellate Division affirmed an order that denied the motion of Keanu S. for the issuance of an order declaring that he is dependent on the Family Court and making specific findings so as to enable him to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J). On November 2, 2015, the Family Court adjudicated the child a juvenile delinquent and placed him on probation for a period of 12 months. On May 19, 2016, the Department of Probation filed a petition alleging that based on an incident on January 29, 2016, and his failure to attend school regularly, the child willfully violated the terms of his probation. In June 2016, the Family Court remanded the child to the Administration for Children’s Services of the City of New York for detention pending further proceedings. In an order dated July 13, 2016, the Family Court vacated the order of disposition dated November 2, 2015, and placed the child in the custody of the Commissioner of Social Services of the City of New York for a period of 12 months in “non-secure placement.” Family Court denied the child’s renewed motion, stating, in pertinent part: “This court declines to adopt [the child’s] position, and finds that a placement in a juvenile delinquency matter does not satisfy the dependency requirement necessary for a SIJS finding.... “First, there exists no Appellate authority in this State to support a finding that a juvenile delinquency proceeding constitutes a dependency upon the Family Court for [specific] findings in a SIJS matter. Second, such determination would circumvent the legislative intent behind the SIJS statute, and would not further the underlying policies or legislative intent of the SIJS statute. Expanding SIJS status to include juvenile delinquency matters would put this court in the untenable position of rewarding immigrant children for committing acts, which if done by an adult, would constitute a crime under the Penal Law. A reward not available to a law abiding immigrant child, and an intent this court is not willing to ascribe to Congress. The Family Court rejected the child’s contention that he was dependent upon a juvenile court, within the meaning of 8 USC § 1101(a)(27)(J)(i), by virtue of his placement in the custody of the Commissioner of Social Services of the City of New York following his adjudication as a juvenile delinquent.

            The Appellate Division agreed with the Family Court’s determination and concluded that such a placement does not satisfy the requirement of dependency under the statute. On appeal, the child urged the Court to find that he had been legally committed to, or placed under the custody of, an individual appointed by a state or juvenile court for SIJS purposes by virtue of his juvenile delinquency adjudication. The Court declined to do so. It agreed with the Family Court that the dependency requirement had not been satisfied. It held that the child was not an intended beneficiary of the SIJS provisions. He was not placed in the custody of the Commissioner of Social Services due to his status as an abused, neglected, or abandoned child. Instead, he was placed in the custody of the Commissioner of Social Services after committing acts which, if committed by an adult, would have constituted serious crimes. His violent acts and misconduct have resulted in painful and terrible consequences to his victims. In effect, the child attempted to utilize his wrongdoings and the resultant juvenile delinquency adjudication as a conduit or a vehicle to meet the dependency requirement for SIJS. Such a determination is in conflict with the primary intent of Congress in enacting the SIJS scheme, namely, to protect abused, neglected, and abandoned immigrant children. The Majority opinion could not fathom that Congress envisioned, intended, or proposed that a child could satisfy this requirement by committing acts which, if committed by adults, would constitute crimes, so as to warrant a court’s involvement or the legal commitment to an individual appointed by a state or juvenile court.

Attorney Sanctioned for Continuing to Advance Contention Which Court Had Previously Ruled Was Without Merit.
            In Tamburello v Tamburello, --- N.Y.S.3d ----, 2018 WL 5020051, 2018 N.Y. Slip Op. 06961 (2d Dept., 2018) the Appellate Division held that Supreme Court improvidently exercised its discretion in denying the plaintiff’s application to impose sanctions in the form of attorneys’ fees and expenses against the defendant’s attorney pursuant to 22 NYCRR 130–1.1. The defendant, through her attorney, moved to set aside the parties prenuptial agreement contending, in effect, that there had been a novation such that the prenuptial agreement had been replaced by an affidavit of support submitted to the Department of Homeland Security. The defendant’s attorney provided no legal authority supporting this contention. Even though the court granted that branch of the plaintiff’s cross motion which was, in effect, to preclude the defendant from seeking to set aside the parties’ prenuptial agreement, the defendant’s attorney later attempted, at the nonjury trial, to question the plaintiff about the affidavit of support, arguing, in effect, that the affidavit of support replaced the prenuptial agreement. The defense then rested without presenting evidence. The Appellate Division found that the conduct of the defendant’s attorney was frivolous within the meaning of 22 NYCRR 130–1.1(c). The defendant’s attorney continued to advance his contention relating to the affidavit of support, which was completely without merit in law, in contravention of the Supreme Court’s prior ruling. Moreover, that contention could not be supported by a reasonable argument for an extension, modification, or reversal of existing law, and the conduct of the defendant’s attorney appears to have been undertaken primarily to delay or prolong the resolution of the litigation. It remitted the matter to the Supreme Court for a determination of the appropriate amount of the attorneys’ fees and expenses to be awarded to the plaintiff.

Appellate Division Finds It Inequitable to Require That Husband Name Wife as Beneficiary of His Retirement Benefits and Thereby Preclude Him from Sharing Those Benefits with A Subsequent Spouse.

            In Button v Button. --- N.Y.S.3d ----, 2018 WL 5292748, 2018 N.Y. Slip Op. 07216 2018 WL 5292748 (3d Dept., 2018) Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) were married in October 2006 and are the parents of three children (born in 2012, 2013 and 2015). The husband argued on appeal, inter alia, that the court erred in ordering that he provide the wife with “the minimum survivor benefit” for his pension plan. The Appellate Division took judicial notice of the applicable rules of the New York State and Local Retirement System. It observed that a participant may designate a former spouse to receive a portion of the preretirement ordinary death benefit and may name others to receive the remainder of that benefit. However, only one beneficiary, or alternate payee, may be named for retirement benefits. It agreed with the husband that it would be inequitable to require that he name the wife as a beneficiary of his retirement benefits and thereby preclude him from sharing those benefits with any other person, such as a subsequent spouse. In that regard, it noted that the marital portion of the pension wass small, the parties were relatively young and the wife had the prospect of gaining employment that should enable her to provide for retirement. Therefore, it modified the judgment by specifically awarding the wife one half of the martial portion of the husband’s pension according to the Majauskas formula, including one half of the marital portion of the ordinary preretirement death benefit, but excluding any requirement that the husband elect any option that would continue postretirement benefits to the wife following his death.

Diamond engagement purchased for fiancée prior to commencement of action held to be Marital Property.  Supreme Court should not have imputed income to wife based on statistical information from the Department of Labor that was not admitted in evidence at trial

            In Gorman v Gorman, --- N.Y.S.3d ----, 2018 WL 5274250, 2018 N.Y. Slip Op. 07104 (2d Dept., 2018) the parties were married on May 16, 1987. The action for a divorce was commenced on August 2, 2011.

            The Appellate Division, inter alia, disagreed with the determination of the Supreme Court to impute to the plaintiff an annual income of $151,192. Taking into account the plaintiff’s lack of candor in his testimony as to his finances, his history of gambling winnings and related benefits, and his failure to submit a current net worth statement and disclose his living expenses (which he shared with his fiancé), it was appropriate to impute to the plaintiff additional income above his basic governmental salary). However, it found it appropriate to impute to the plaintiff an annual income of $100,000, which attributed to the plaintiff enhanced income from his gambling activities and reflected an adjustment for the savings that the plaintiff should obtain from sharing living expenses with his fiancé.

            The Appellate Division held that Supreme Court should not have imputed income to the wife based on statistical information from the New York State Department of Labor that was not admitted in evidence at trial (see McAuliffe v. McAuliffe, 70 A.D.3d 1129, 1132–1133, 895 N.Y.S.2d 228).

            The Appellate Division held that Supreme Court should not have determined, nearly two years after the parties’ youngest child had attained the age of 21, what the child support would have been for that child based on the trial testimony. A temporary order of support was issued which required the plaintiff to pay to the defendant$6,300 per month in unallocated maintenance and child support. At the time the order of support was made, one of the parties’ two children was under 21. Thus, for purposes of determining the retroactivity of support, it determined that one-half (i.e., $3,150) of the temporary support order was attributable to child support and that the plaintiff is responsible for that amount for the period from May 31, 2012, to August 24, 2014, when the subject child turned 21.

            The Appellate Division held that the court also should have directed the plaintiff to provide health insurance for the plaintiff until she becomes eligible for coverage through employment or through Medicare (see Domestic Relations Law § 236[B][8][a]; Costello v. Costello, 304 A.D.2d 517, 757 N.Y.S.2d 588). Since this direction should be effective as of the date of the defendant’s verified answer, February 7, 2012, we remit the matter to the Supreme Court, Orange County, for a determination as to what, if any, amounts are owed by the plaintiff to the defendant on account of this direction.

            The Appellate Division observed that property acquired during the marriage is presumed to be marital property, and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property. Here, the plaintiff purchased a diamond engagement ring for $3,200 for his fiancée prior to commencement of the action, and failed to prove that it was separate property. It held that Supreme Court should have given the defendant a 50% credit of the ring’s purchase price, i.e., $1,600, toward her distributive award.

Relocation Provision in Custody Agreement Disregarded. No agreement of the parties can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child’s best interest

            In Matter of Jaimes v Gyerko, --- N.Y.S.3d ----, 2018 WL 5274177, 2018 N.Y. Slip Op. 07125 (2d Dept., 2018) the parties March 13, 2014, custody stipulation that was so-ordered and incorporated, but not merged, into their judgment of divorce permitted the mother to relocate within 55 miles of her current residence without the express written permission of the father or a court order. After the mother informed the father that she and the children would be relocating from Mamaroneck, New York, to Woodbridge, Connecticut, the father filed a petition to modify the so-ordered stipulation based on a change in circumstances, to enjoin the mother from relocating with the children. The father argued that the relocation, while within 55 miles of the mother’s Mamaroneck residence, would not be in the children’s best interests. The Family Court, finding that the parties’ custody stipulation permitting the relocation was dispositive, granted the mother’s motion pursuant to CPLR 3211(a)(1) to dismiss the petition. The Appellate Division reversed holding that Family Court should not have granted the relief requested by the mother. No agreement of the parties can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child’s best interest” (Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95). Thus, although the parties agreed in their stipulation that the mother could relocate to within 55 miles of her residence in Mamaroneck, such an agreement is not dispositive, but rather, is a factor to be considered along with all of the other factors a hearing court should consider when determining whether the relocation is in the best interests of the children. Further, the father made an evidentiary showing that the mother’s proposed move might not be in the children’s best interests. Where, as here, facts essential to the best interests analysis, and the circumstances surrounding such facts, remain in dispute, a hearing is required (see S.L. v. J.R., 27 N.Y.3d 558, 564)

October 16, 2018

Appellate Division, First Department

Modification of Custody or Visitation, Even on A Temporary Basis, Requires A Hearing, Except in Cases of Emergency. A Hearing May Be “As Abbreviated, In the Court’s Broad Discretion, As the Particular Allegations and Known Circumstances Warrant”

            In Matter of Kenneth J v Lesley B, --- N.Y.S.3d ----, 2018 WL 4778935, 2018 N.Y. Slip Op. 06625 (1st Dept.,2018) the Appellate Division remanded for a further hearing. It held that Family Court improperly determined the mother’s modification petition and the father’s petitions for enforcement, by suspending all contact between the father and child without a hearing. Modification of custody or visitation, even on a temporary basis, requires a hearing, except in cases of emergency. A hearing may be “as abbreviated, in the court’s broad discretion, as the particular allegations and known circumstances warrant” (Martin R.G. v. Ofelia G.O., 24 A.D.3d 305, 306, 809 N.Y.S.2d 1 [1st Dept. 2005]). The court granted suspension of all contact between parent and child based solely upon its in camera interview with the child and its review of the motion papers and some portion of the court file, which included an unsworn and uncertified report by Family Court Mental Health Services (MHS) and unsworn letters from the child’s treating therapist and from therapists who had seen the parties and child for family therapy. It was not clear from the record what portions of the record of the earlier custody case Family Court relied on in reaching its determination.

            The Appellate Division held that Family Court improperly considered the MHS report, since it was not referenced in or attached to the mother’s or the child’s attorney’s motion, was neither sworn nor certified and thus not in admissible form, as is required on a motion for summary judgment, contained inadmissible hearsay and was not subject to cross-examination. Moreover, even if the court could have considered the report, it did not support suspension of all contact between the father and the parties’ child.

            It also held that the court also improperly considered the therapists’ unsworn letters, which were not attached to the mother’s or the child’s attorney’s motion, and which also contained inadmissible hearsay. Even if the court could have considered them, they did not support the award of summary judgment to the mother, since they failed to establish that there were no material facts in dispute and that the mother was entitled to the relief sought as a matter of law. The mother had alleged that the father’s disparagement of her in the child’s presence and his discussion of his adult problems with the child caused the child’s anxiety and suicidal thoughts. The father claimed that the child’s distress was the result of the mother’s efforts to alienate the child from him. The therapists’ observations were not a substitute for a formal neutral forensic mental health evaluation, and did not establish that suspension of all contact between the father and child was in the child’s best interests.

Appellate Division, Second Department

Review and Adjustment Procedures in FCA § 413–A Apply Equally to Support Orders Based on An Agreement Opting Out of The CSSA And Those Based Solely on the CSSA. After an Objection Is Filed a De Novo Review Is Required

            In Murray v Murray, --- N.Y.S.3d ----, 2018 WL 4608783, 2018 N.Y. Slip Op. 06245 (2d Dept., 2018) the parties entered into a child support agreement in which they opted out of the CSSA child support provisions. In March 2017, the SCU notified the parties of a cost-of-living adjustment (COLA) to the father’s child support obligation for the parties’ one remaining unemancipated child, which increased the father’s weekly child support obligation to $822. The mother filed an objection to the COLA pursuant to Family Court Act § 413–a, and a hearing was held before a Support Magistrate. At the time, the child was 20 years old and entering her third year of college. After the hearing, the Support Magistrate, vacated the COLA increase and, upon recalculating the amount of child support for the child pursuant to Family Court Act § 413, fixed the father’s child support obligation at $360 per week. The Support Magistrate found that although the parties’ combined parental income was $371,697.08, the mother failed to set forth a basis upon which to apply the statutory child support percentage to any income above the statutory cap of $143,000.

            The Appellate Division affirmed. It held that although the parties agreed in the stipulation to opt out of the provisions of the CSSA (Domestic Relations Law § 240[1–b]; Family Ct. Act § 413), after the mother filed an objection to the COLA, the Support Magistrate was required, pursuant to Family Court Act § 413–a, to conduct a de novo review of the father’s support obligation under the CSSA. The review and adjustment procedures set forth in Family Court Act § 413–a apply equally to orders based on an agreement and those based solely on the child support standards (Matter of Tompkins County Support Collection Unit v. Chamberlin, 99 N.Y.2d at 336, 756 N.Y.S.2d 115, 786 N.E.2d 14). Parties to an agreement that deviates from the guidelines set forth in the CSSA may demonstrate why, in light of the agreement, it would be unjust or inappropriate to apply the guideline amounts.  It held that in recalculating the father’s child support obligation, the Support Magistrate properly considered the guidelines set forth in the CSSA. The mother failed to demonstrate why, in light of provisions of the stipulation, it was unjust or inappropriate for the Support Magistrate to decline to apply the child support percentage to the parties’ combined income over the statutory cap.

Clear and Convincing Evidence Necessary to Overcome Presumption That Commingled Property Is Marital Property.

            In Belilos v Rivera, --- N.Y.S.3d ----, 2018 WL 4608918, 2018 N.Y. Slip Op. 06223 (2d Dept., 2018) the Appellate Division affirmed a judgment of divorce which, inter alia, deducted from the distribution to the defendant of certain funds held in escrow $150,000 as the plaintiff’s separate property from inheritance, and distributed that sum to the plaintiff. 

            The Appellate Division noted that to overcome a presumption that commingled property is marital property, the party asserting that the property is separate must establish by clear and convincing evidence that the property originated solely as separate property and the joint account was created only as a matter of convenience, without the intention of creating a beneficial interest. The plaintiff established through her own testimony, the defendant’s testimony, and copies of checks from her uncle’s estate, that during the marriage, she inherited the aggregate sum of $150,000 from her uncle. The plaintiff deposited the inheritance monies into one of the parties’ joint accounts merely because she did not have any bank accounts titled solely in her name. The defendant admitted at the trial that, at his deposition, he testified that he intended to return the plaintiff’s inheritance monies to her when the instant litigation settled, and that he intended to make things “right” with respect to the plaintiff’s inheritance. Thus, contrary to the defendant’s contentions, he recognized the separate character of the inheritance monies, such that the presumption that the commingled funds were marital was overcome.

October 1, 2018

Time Table for Service of Motion Papers

            In this issue we have included for counsels reference our updated 2018 Time Table for Service of Motion Papers which is based upon the provisions of CPLR 2214 (b), CPLR 2215 and CPLR 2103(b). A pdf copy of the timetable may be downloaded from our website at

Appellate Division, Second Department

Lack of Contempt Warning and Notice May Be Waived by Contesting Application on The Merits

            In Dalton v Dalton, --- N.Y.S.3d ----, 2018 WL 4473038, 2018 N.Y. Slip Op. 06078 (2d Dept., 2018) the Appellate Division rejected the defendant’s argument that the the Supreme Court was without authority to adjudicate him in contempt because the plaintiff’s order to show cause failed to include the notice and warning requirements of Judiciary Law § 756. By contesting the contempt application on the merits without raising this objection, the defendant waived any objections to the validity of the application based upon those requirements.

Family Court Act § 413(1)(a) does not require a third party who is awarded custody, but not a parent to financially support a child.

            In Lozaldo v Cristando, --- N.Y.S.3d ----, 2018 WL 4344611, 2018 N.Y. Slip Op. 06015 (2d Dept., 2018) the maternal aunt and uncle of the subject children were awarded residential custody of the children after the death of the mother, and shared joint legal custody with the father. After a hearing the father was ordered to pay 100% of the children’s unreimbursed medical and educational expenses, and to maintain a life insurance policy in the sum of $1,000,000, designating the children as irrevocable primary beneficiaries. The Appellate Division observed that Family Court Act § 413(1)(a) provides that “the parents of a child under the age of [21] years are chargeable with the support of such child and, if possessed of sufficient means or able to earn such means, shall be required to pay for child support a fair and reasonable sum as the court may determine”. The statute does not require a third party who is not a parent to financially support a child.  While Courts have employed the doctrine of equitable estoppel, sometimes in conjunction with that of implied contract, to hold parties responsible for paying child support in the absence of a biological or adoptive connection to the subject child or an established parent-child relationship where, among other things, those parties agreed to adopt the child (see Matter of H.M. v. E.T., 76 A.D.3d 528, 906 N.Y.S.2d 85; Wener v. Wener, 35 A.D.2d 50, 312 N.Y.S.2d 815) such circumstances did not exist here. The fact that the petitioners have residential custody and joint legal custody of the children did not relieve the father of his obligation pursuant to Family Court Act § 413(1)(a), as the children’s parent, to financially support them.

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