July 1, 2018 issue of Bits and Bytes™ Available for download

Bits and Bytes™ is our free electronic newsletter, which is published as a public service by Joel R. Brandes Consulting Services, Inc., for the bench and bar, to keep lawyers and judges up to date on important developments in New York Divorce and Family Law.  The July 1, 2018 issue of Bits and Bytes™ may be downloaded from our website at www.nysdivorce.com

Recent Decisions and Legislation Since March 1, 2018 appearing in Bits and Bytes, our electronic newsletter

July 1, 2018

Appellate Division, First Department

First Department Holds Brooke’s Reasoning Applies with Equal Force Where Child Is Legally Adopted by One Partner and Other Partner Claims He or She Is A AParent@ With Co‑Equal Rights Because Of Preadoption Agreement.  Observes Equitable Estoppel Requires Close Scrutiny of Child.

In re K.G., v. C.H., ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3118937 (1^st Dept., 2018) petitioner (KG) claimed that she was a parent with standing to seek custody of and visitation with A., the adopted child of respondent (CH), her now ex‑partner. KG was not biologically related to A., who was born in Ethiopia, nor did she second adopt the child. KG=s claim of parental standing was predicated upon the Court of Appeals decision in Matter of Brooke S.B. v. Elizabeth A.C.C. (28 NY3d 1 [2016]), which expansively defined who is a Aparent@ under Domestic Relations Law ' 70. On appeal, KG primarily claimed that in 2007, before A. was identified and offered to CH for adoption, the parties had an agreement to adopt and raise a child together. CH did not deny that the parties had an agreement in 2007 but claimed that the 2007 agreement terminated when the parties= romantic relationship ended in 2009, before A. was first identified and offered for adoption to CH in March 2011. After a 36Bday trial, Supreme Court held that notwithstanding the parties= agreement to adopt and raise a child together, KG did not remain committed to their agreement, which terminated before the adoption agency matched A. with CH. The court denied KG standing to proceed and dismissed the petition for custody and visitation.

The Appellate Division observed that in Brooke, the Court of Appeals overruled Matter of Alison D. v. Virginia M. (77 N.Y.2d 651 [1991]) and abrogated Debra H. v. Janice R. (14 NY3d 576 [2010], cert denied 562 U.S. 1136 [2011]), its earlier precedents, thereby greatly expanding the definition of who can obtain status as a parent and have standing to seek custody and visitation of a child. The Brooke Court placed the burden of proving standing, by clear and convincing evidence, on the party seeking it. The Court recognized that there could be a variety of avenues for a movant to prove standing. It expressly rejected the premise that there is only one test that is appropriate to determine whether a former same‑sex nonbiological, nonadoptive party has parental standing. In Brooke and its companion case of Matter of Estrellita A. v. Jennifer L.D., the Court of Appeals recognized each petitioner=s status as a parent but did so applying two completely different tests. The Court of Appeals also left open the possibility that a third Atest,@ involving the application of equitable principles, such as the doctrine of equitable estoppel, could be utilized to confer standing in certain circumstances. In Brooke, the Court of Appeals recognized that where a former same‑sex partner shows by clear and convincing evidence that the parties had jointly agreed to conceive a child that one of them would bear, and also agreed to raise that child together once born, the nonbiological, nonadoptive partner has standing, as a parent, to seek custody and visitation with the child, even if the parties= relationship has ended. The Court referred to these circumstances as the parties having a preconception agreement and applied the Aconception test@). In Estrellita, the Court resolved the question of standing differently, applying the doctrine of judicial estoppel. In Estrellita, the child=s biological parent (Jennifer L.D.) had previously petitioned Family Court for an order requiring Estrellita A., the nonbiological, nonadoptive partner to pay child support. Jennifer L.D.=s support petition was granted and she was successful in obtaining child support from Estrellita A. Subsequently, Estrellita A. sought custody and visitation with the child, but Jennifer L.D. denied that Estrellita A. had standing as a parent. The Court of Appeals determined that Jennifer L.D. had asserted an inconsistent position in the support action, because Jennifer L.D. had successfully obtained a judgment of support in her favor and therefore, was judicially estopped denying Estrellita A.=s status as a parent given Family Court=s prior determination that Estrellita A. was in fact, a legal parent to the child (id. at 29).

In deciding Brooke, the Court rejected the argument that it should adopt only one, uniform test to determine standing as a parent. The Court observed that a different test might be applicable in circumstances where, for instance, a partner did not have any preconception agreement with the legal parent. In Brooke it concluded that where a petitioner proves by clear and convincing evidence that he or she has agreed with the biological parent of the child to conceive and raise the child as co‑parents, the petitioner has presented sufficient evidence to achieve standing to seek custody and visitation of the child.

The First Department held that although Brooke was decided in the context of children who were planned and conceived through means of artificial insemination, the Court=s reasoning applies with equal force where, as here, a child is legally adopted by one partner and the other partner claims he or she is a Aparent@ with co‑equal rights because of a preadoption agreement.

The Appellate Division found ample support in the record for the trial court=s factual conclusion that the parties= 2007 agreement to adopt and raise a child together had terminated before A. was identified by the agency and offered to CH for adoption. Nor was the trial court=s consideration of whether the plan was in effect at the time the particular child in this proceeding was identified for adoption an impermissible reformulation or restriction on the plan test originally enunciated in Brooke.

            Although the original petition did not expressly state that KG was claiming standing under Domestic Relations Law ' 70 under an alternative theory of equitable estoppel, the issue was raised early on in the proceeding by the trial court itself.

The Court found that the record was incomplete precluding it from reaching the merits of the parties= respective substantive claims on the issue of equitable estoppel on the appeal. It observed that equitable estoppel requires careful scrutiny of the child=s relationship with the relevant adult and is ultimately based upon the best interest of the child. In the context of standing under Domestic Relations Law ' 70, equitable estoppel concerns whether a child has a bonded and de facto parental relationship with a nonbiological, nonadoptive adult. The focus is and must be on the child (Brooke, 28 NY3d at 27). It is for this reason that the child=s point of view is crucial whenever equitable estoppel is raised. Although the appointment of an attorney for the child is discretionary, it is commonplace and should be the norm where the issue raised is equitable estoppel. This is because equitable estoppel necessarily involves an analysis and determination of what is in the best interests of the child. Even if a court denies the appointment of an attorney for the child, there are alternative means to obtaining this information, including a forensic evaluation or a Lincoln hearing. Here, the child=s voice was totally silent in this record.

In view of its conclusion that the record was incomplete, the Court did not reach CH=s argument that because CH did not consent to holding KG out as a parent, KG cannot prove equitable estoppel. It only held that that the record developed at trial did not permit it to make the full consideration necessary to finally determine the issue of equitable estoppel at this point. Because the record on equitable estoppel was incomplete, it remanded the matter for further proceedings consistent with the decision.

Appellate Divison, Second Department

Income tax liability of the parties is subject to equitable distribution

In Greenberg v Greenberg, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 3041099, 2018 N.Y. Slip Op. 04539 (2d Dept., 2018) the parties were married in 1995 and had four children. During the marriage, the defendant owned an Internet‑based business, which he sold in approximately January 2009. In June 2009, the Federal Trade Commission commenced a civil action against, among others, the defendant, in connection with the operation of his Internet company. In August 2009, the plaintiff commenced the action for a divorce. In January 2014, the defendant was convicted in federal court of, among other things, wire fraud, aggravated identity theft, and money laundering. In the ongoing divorce action, Supreme Court conducted a hearing in June and July 2014 with respect to the parties= finances and equitable distribution. The defendant was sentenced in federal court on October 31, 2014, to seven years= imprisonment and ordered to pay restitution in the sum of $1,125,022.58.

After trial Supreme Court, inter alia, found that in all respects the defendant was not credible. It imputed an income of $100,000 per year to the defendant for the purposes of calculating child support obligations. As to equitable distribution, the court found that the only assets available for equitable distribution were two adjacent properties in Lawrence. The properties had been the marital residence and had no present value but might generate income. The court awarded the plaintiff the two properties upon considering a number of factors, including that the real estate was acquired during the marriage; the defendant=s income increased substantially during the marriage, while the plaintiff delayed her own career advancement and remained at home caring for the parties= four children; the businesses, which were marital property and would have been subject to equitable distribution, could not be evaluated because the defendant failed to keep appropriate records; the defendant caused the businesses acquired and created during the marriage to be completely destroyed through his criminal activity; and it was likely that the defendant had transferred business assets without fair consideration. In light of the equitable distribution award and the circumstances of the case, the court declined to award the plaintiff maintenance. It also determined that the defendant would be responsible for any marital debt, including an FTC judgment against him for more than $2,000,000. Finally, the court awarded $50,000 to the plaintiff=s attorney for outstanding counsel fees and $25,000 to the plaintiff for counsel fees previously paid by her, because the defendant had engaged in dilatory tactics and failed to comply with prior orders, causing the plaintiff to incur additional legal expenses. In an amended judgment of divorce entered February 6, 2015, the Supreme Court, among other things, directed the defendant to pay a pro rata share of child support and certain expenses of the children based on the imputed income, awarded the plaintiff the two properties, directed that the defendant would be responsible for any taxes, interest, penalties, and deficiencies that result as a direct consequence of his actions, and directed the defendant to pay the total sum of $75,000 in counsel fees to the plaintiff and her attorney. The defendant appeals.

The Appellate Division affirmed. It held held that under the circumstances of the case, the Supreme Court did not improvidently exercise its discretion with regard to the awards.  The Court observed that the income tax liability of the parties is subject to equitable distribution. Where a party Ashared equally in the benefits derived from the failure to pay, she [or he] must share equally in the financial liability arising out of tax liability@ (Conway v. Conway, 29 A.D.3d at 725B726, 815 N.Y.S.2d 233; see Lago v. Adrion, 93 A.D.3d at 700, 940 N.Y.S.2d 287). AHowever, if one spouse makes the financial decisions regarding the income tax return and earned virtually 100% of the parties= income during the period, the court, in its discretion, may direct that spouse to pay the entire tax liability@. Here, the Supreme Court deemed the defendant responsible for, inter alia, all of the parties= tax liabilities incurred during the marriage, including the plaintiff=s own failure to file tax returns for her personal income or to pay taxes on her income, of which failings she had reason to be aware by virtue of notices she received from the Internal Revenue Service. Under these circumstances, it was not equitable to hold the defendant, rather than the plaintiff, liable for any taxes, interest, penalties, and deficiencies that resulted from the plaintiff=s failure to file income tax returns and to pay taxes on income that she individually earned during the marriage.

Family Court

Family Court Suggests That Legislature Consider Revising Family Court Act §812 (3) To Balance the Root of Its Intent with What Has Become Its Perverted Application

In Matter of Maliha A., v. Onu M., 2018 WL 3074532 (Fam Ct., 2018) Ms. A. testified that she and Mr. M. had been dating on and off for approximately 5 years. She told the Court that in Fall of 2017, they had a difficult separation and there remained unresolved issues between them. She stated that when the parties ended their relationship, they agreed that they would no longer communicate with each other. Thereafter, Ms. A. posted a series of tweets on her Twitter account indicating that the two were never compatible and her life had improved since their breakup. Ms. A. testified that she never mentioned Mr. M.=s name in the Tweets but acknowledged that it would have been obvious to anyone that knew them that she had been referring to Mr. M. Ms. A. told the Court that after the texts were posted, Mr. M. texted her three times asking her to stop speaking about him on social media. She stated that she was puzzled as to why he would contact her if they had agreed not to communicate, and she deleted his texts immediately. Ms. A. testified that Mr. M.=s fiancé then contacted her to tell her that she was trying to calm Mr. M. because he was upset about the Tweets. Ms. A. stated that Mr. M.=s fiancé told her that she had been speaking with Mr. M. in an effort to keep the peace between him and Ms. A. Ms. A. told the Court that during that time period, her uncle sent her a screenshot of a text that Mr. M. had sent to him in which Mr. M. said, Ait=s a wrap.@ Ms. A. testified that she received that message poorly, believing that it was a threat, even though the text was not sent directly to her. Ms. A. testified that she wanted an order of protection against Mr. M. because Athere is no telling what he might say or do.@ At the close of Ms. A.=s case, the Court dismissed her petition since Ms. A. did not meet her burden of proving conduct that rose to the level of a family offense.

Family Court observed that it did not appear that a non‑violent, bad break‑up was ever intended by the framers of the Family Court Act to be the basis for invoking the family court=s authority to issue orders of protection where none are necessary. The Court noted that   Family Court Act ' 812(3) provides that no court official or law enforcement official Ashall discourage or prevent any person who wishes to file a petition or sign a complaint from having access to any court for that purpose.@ The application of this statute nowadays allows individuals claiming to have some kind of Aintimate@ relationship to freely file, without vetting, family offense petitions on any set of alleged facts they wish, regardless of whether those facts, if actually proven, would ultimately make out a family offense. The unintended consequence is that family offense petitions can be filed on factual allegations by ex‑girlfriends and ex‑boyfriends that amount to nothing more than name‑calling that results in hurt feelings, and disrespectful behavior manifested by ill‑advised posts on social media or extreme test messages. It is time for the statute to be revisited in light of modern technology and the expansion of family court jurisdiction to Aintimate relationships.@   All too often in these types of cases, the family court does not act as a legal authority but as an informal mediator, an unofficial Aminister of bitter breakups,@ whose judicial function is to preside over the dissolution of a dating relationship that ends poorly, perhaps artlessly, but not criminally. Sometimes the apparent goal of the petitioner is not protection from, but rather a continued connection with, the respondent through repeated court proceedings that continue a temporary order of protection in their favor, thereby imposing a power dynamic placing the petitioner in control. At other times, the court is asked to mend the relationship so that the parties can start anew, or failing that, to bring some type of closure to a broken relationship. None of these functions are judicial in nature. The overburdened family court could certainly benefit from the Legislature=s closer look at revising the statute to balance the root of its intent with what has become its perverted application.

June 16, 2018

Appellate Division, First Department

First Department Holds law firm not entitled to a money judgment against defendant, its former client, on a motion to fix charging lien pursuant to Judiciary Law § 475

            In Bernard v De Rham, --- N.Y.S.3d ----, 2018 WL 2435717, 2018 N.Y. Slip Op. 03891 (1^st Dept., 2018) the Appellate Division held that the law firm was not entitled to a money judgment against defendant, its former client, on a motion pursuant to Judiciary Law § 475. Such a motion seeks a lien upon the client’s cause of action, which does not provide for an immediately enforceable judgment against all his assets, but is a security interest against a single asset, i.e., a judgment or settlement in his favor. To obtain a money judgment, the law firm must commence a plenary action.

            The Appellate Division further held that  Judiciary Law § 475 does not preclude the attachment and enforcement of a charging lien on an award in his favor, which may include an award of legal fees from his ex-wife (citing  Cohen v. Cohen, 160 A.D.2d 571, 572, 554 N.Y.S.2d 525 [1st Dept. 1990] [holding that “[a]lthough a charging lien does not attach to an award of alimony and maintenance, section 475 does not preclude the enforcement of such lien upon any other award made in the action”;  Rosen v. Rosen, 97 A.D.2d 837, 468 N.Y.S.2d 723 [2nd Dept. 1983] [holding that “(w)hile a charging lien does not attach to an award of alimony and maintenance, section 475 of the Judiciary Law does not preclude the enforcement of such a lien upon another award made in the action, such as an award of counsel fees to either the client or subsequent counsel”] )

Appellate Division, Second Department

Equitable Distribution of a Portion of a Contingency Fee That the Plaintiff Was Paid After Commencement of The Action for Work Performed Before Its Commencement

In Weidman v Weidman, --- N.Y.S.3d ----, 2018 WL 2709520, 2018 N.Y. Slip Op. 04027 (2d Dept., 2018) the plaintiff and the defendant were married in 2000, and hade one minor child. The plaintiff, who was admitted to the New York State Bar in 1986, was a solo practitioner with a general law practice. After the birth of the parties’ child, the defendant did not return to her full-time teaching position but worked on a part-time basis earning approximately $30,000 annually. In September 2011, the plaintiff commenced this action for a divorce and ancillary relief. The Appellate Division, among other things, saw no reason to disturb the Supreme Court’s equitable distribution of a portion of a contingency fee that the plaintiff was paid after commencement of the action (see Block v. Block, 258 A.D.2d 324, 325, 685 N.Y.S.2d 443; Blechman v. Blechman, 234 A.D.2d 693, 695–696, 650 N.Y.S.2d 456). The plaintiff had agreed to accept a lump sum payment of $34,971, as well as a $240,000 structured settlement, as his attorney’s fee in a case on which he worked from January 2004, through the beginning of January 2013. The court found that only the $240,000 structured settlement earned prior to commencement was marital property, to reflect that the defendant was not entitled to compensation for the work the plaintiff performed after the commencement of this action. The court properly determined that the defendant’s equitable share of the structured settlement payments was 50%, and that her distributive award should be reduced by 15% to account for the plaintiff’s income tax liability. Moreover, the plaintiff’s contention that the court engaged in “double counting” by distributing a portion of the contingency fee to the defendant in addition to maintenance was without merit, as the plaintiff’s income for purposes of determining maintenance was based on imputation of his income admitted for purposes of child support. The contingency fee in the form of a structured settlement was treated as a one-time bonus outside the $100,000 of imputed income.

Second Department Joins Third and Fourth Departments in Holding that Court may award visitation-physical access “as agreed by the parties”

In Matter of Samuel v Sowers, --- N.Y.S.3d ----, 2018 WL 2709799, 2018 N.Y. Slip Op. 03984 (2d Dept., 2018) after a hearing, the Family Court granted the father’s custody petition and awarded the mother physical access “as agreed amongst the parties.” The Appellate Division affirmed observing that notwithstanding the litigation between these parties, the father expressed, both through his words and his actions, a strong commitment to ensuring physical access between the mother and the children. Under these circumstances, awarding the mother physical access “as agreed amongst the parties” was not an improvident exercise of discretion It observed that should the mother be unable to obtain physical access by agreement, she may file a petition seeking to enforce or modify the order.

Editors note: To the same effect see Alleyne v Cochrane, 119 A.D.3d 1100, 990 N.Y.S.2d 289, 2014 N.Y. Slip Op. 05221 (3d Dept., 2014); Thomas v Small, 142 A.D.3d 1345, 38 N.Y.S.3d 461 (Mem), 2016 N.Y. Slip Op. 06340 (4^th Dept., 2016); Pierce v Pierce, 151 A.D.3d 1610, 56 N.Y.S.3d 703, 2017 N.Y. Slip Op. 04594 (4^th Dept., 2017).

Doctrine of Judicial Estoppel, Also Known as Estoppel Against Inconsistent Positions, Bars Constructive Trust Action

          In Bihn v Connelly, --- N.Y.S.3d ----, 2018 WL 2709955, 2018 N.Y. Slip Op. 03956 (2d Dept., 2018) the plaintiff commenced an action against the defendant Susan Connelly and her husband, inter alia, to impose a constructive trust on certain Chaucer Street property. The defendants moved for summary judgment dismissing the complaint, and to impose sanctions pursuant to 22 NYCRR 130–a.1(a). They contended that in 2011, the plaintiff represented in a bankruptcy petition that he had no interests in real property. Therefore, he was judicially estopped from contending that he had an interest in the Chaucer Street property. The Supreme Court granted the defendants’ motion. The Appellate Divison affirmed. It agreed with the Supreme Court’s determination that the action was barred by the doctrine of judicial estoppel. Under the doctrine of judicial estoppel, also known as estoppel against inconsistent positions, a party may not take a position in a legal proceeding that is contrary to a position he or she took in a prior proceeding, simply because his or her interests have changed. The doctrine applies only where the party secured a judgment in his or her favor in the prior proceeding. This doctrine “rests upon the principle that a litigant ‘should not be permitted ... to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise’”. “The doctrine is invoked to estop parties from adopting such contrary positions because the judicial system cannot tolerate this playing fast and loose with the courts” (Ford Motor Credit Co. v. Colonial Funding Corp., 215 A.D.2d at 436, 626 N.Y.S.2d 527). Tthe plaintiff’s contention that he had an interest in the Chaucer Street property based on promises that Susan made to the plaintiff in 2007 and 2009 was contrary to his representation to the United States Bankruptcy Court in 2011 that he had no interest in real property. Based upon the plaintiff’s representations to the Bankruptcy Court, his debts were discharged. Therefore, the action was barred by the doctrine of judicial estoppel.

            Moreover, the Supreme Court did not improvidently exercise its discretion in awarding sanctions in the form of attorney’s fees and costs to the defendants upon a finding that the action was completely without merit in law and could not be supported by a reasonable argument for an extension, modification, or reversal of existing law.

Appellate Division, Third Department

Third Department Holds That Stepgrandparent Is Not Related to A Stepgrandchild By Marriage for Purposes of Family Ct. Act § 1056(4).

            In Matter of Makayla I, --- N.Y.S.3d ----, 2018 WL 2726019, 2018 N.Y. Slip Op. 04047 (3d Dept.,2018) the order adjudicating the subject children to be abused and/or neglected was affirmed. Respondent Caleb K. was the father of Annabella J. (born 2009) and Caleb J. (born 2012), and the stepfather of Makayla I. (born 2004). Respondent Harold J. was Caleb K.’s father, and was the biological grandfather of Annabella J. and Caleb J. and the stepgrandfather of Makayla I. In December 2013, petitioner commenced a Family Ct Act article 10 proceeding against Caleb K., alleging that he allowed Harold J. to sexually abuse Makayla and derivatively abused the other two children. Petitioner thereafter commenced a Family Ct Act article 10 proceeding against Harold J., alleging that he sexually abused Makayla and derivatively abused the other two children. After a fact-finding hearing, Family Court held that Makayla was abused by Harold J. and Caleb K., Annabella was abused by Caleb K. and derivatively abused by Harold J., and Caleb J. was derivatively abused by both respondents. Following a dispositional hearing, the court issued three orders of protection barring Harold J. from having any contact with the children until their eighteenth birthdays. Harold J. appeals the fact-finding order and the orders of protection. Caleb K. appeals the fact-finding order only. The Appellate Division observed that Harold J. was not Makayla’s biological grandfather, but rather was related to her through his son’s marriage to Makayla’s mother. This raised the issue of whether a stepgrandparent is related to a stepgrandchild by marriage for the purposes of Family Ct. Act § 1056(4). The Appellate Division concluded that they are not. This conclusion was supported by the specific language in the statute, “related by ... marriage” (Family Ct. Act § 1056[4]), rather than the broader and more inclusive concept of “affinity,” which is used elsewhere in the Family Ct Act (cf. Family Ct. Act § 812[1][a]). Further, a stepgrandparent has no enforceable legal right to have contact with a stepgrandchild as a stepgrandparent lacks standing to pursue visitation. Thus, although Family Ct. Act § 1056(4) limits the duration of orders of protection against a stepparent who is related to a child by and through his or her own marriage to the child’s mother or father, these limitations do not apply to a stepgrandparent, whose relationship to the child is attenuated. Therefore, because Harold J.’s relationship to Makayla was not established by his own marriage, but rather through his son’s marriage, it was statutorily permissible, in this regard, for Family Court to issue an order of protection until Makayla’s eighteenth birthday. Family Ct. Act § 1056(4) prohibits orders of protection until a child’s eighteenth birthday if the order is against someone who is related by blood or marriage to a member of the child’s household. Therefore, if, at the time of disposition, Makayla resided in the same household as Annabella and Caleb J., the order of protection as to Makayla could not exceed one year (see Family Ct. Act § 1056[4]). The matter must be remitted for the purpose of making this determination. The order adjudicating the subject children to be abused and/or neglected was affirmed.

Appellate Division, Fourth Department

Law of The Case Doctrine Forecloses Re-Examination of Holding That Petitioner Had Standing to Seek Custody or Visitation Absent A Showing of New Evidence or A Change in The Law.

            In Matter of Renee P.-F v Frank G., --- N.Y.S.3d ----, 2018 WL 2425251, 2018 N.Y. Slip Op. 03839 (2d Dept., 2018) Joseph P. and Frank G. were domestic partners., They asked Joseph’s sister, Renee P.–F., to act as a surrogate. Renee executed a surrogacy contract in which she agreed to be impregnated with Frank’s sperm and to terminate her parental rights in order for Joseph to adopt the child or children. In February 2010, Renee gave birth to fraternal twins. During the first four years of the children’s lives, Joseph and Frank equally shared the rights and responsibilities of parenthood, although Joseph did not legally adopt the children. The children regarded both Joseph and Frank as their parents. During that period, Renee frequently saw the children. In early 2014, Joseph and Frank separated, and the children continued to reside with Frank. Joseph, acting in a parental role, visited and cared for the children on a daily basis. In May 2014, Frank suddenly refused to allow Joseph or Renee to have any access to the children. In December 2014, Frank moved to Florida with the children without informing Joseph or Renee or commencing a proceeding for custody of the children. Renee petitioned for custody of the children, and Joseph petitioned to be appointed guardian of the children. In March 2015, Frank petitioned for custody of the children and for permission to relocate with the children to Florida. In an order dated April 8, 2015, the Family Court denied that branch of Frank’s motion which was for permission to relocate with the children to Florida. In June 2015, Joseph withdrew his guardianship petition and filed a petition for custody of the children. Frank then moved, in effect, to dismiss Joseph’s custody petition on the ground, inter alia, that Joseph lacked standing under Domestic Relations Law § 70. In an order dated August 21, 2015, the court, after a hearing, denied Frank’s motion to dismiss and determined that Joseph had standing to seek custody of or physical access with the children. Frank appealed from the orders dated April 8, 2015, and August 21, 2015. While Frank’s appeals were pending, the Court of Appeals, in Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488, overruled Matter of Alison D. v. Virginia M., 77 N.Y.2d 651, 569 N.Y.S.2d 586, 572 N.E.2d 27. Based upon the evidence adduced at the hearing before the Family Court and in light of Matter of Brooke S.B., the Appellate Division determined that Joseph established standing to seek custody or physical access and remitted the matter to the Family Court, Orange County, for a full hearing on the custody petitions (see Matter of Giavonna F.P.–G. [Frank G.–Renee P.–F.], 142 A.D.3d 931, 36 N.Y.S.3d 892; Matter of Frank G. v. Renee P.–F., 142 A.D.3d 928, 37 N.Y.S.3d 155). On remittitur, the Family Court, after a hearing, issued an order dated February 14, 2017, granting Joseph custody of the children and denying Frank’s petition. The Appellate Division held that Family Court properly determined that Joseph had standing to seek custody of the children pursuant to Matter of Brooke S.B., 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488. On Frank’s prior appeal from the order dated August 21, 2015, the Appellate Division determined that Joseph established standing to seek custody or physical access pursuant to the standard set forth in Matter of Brooke S.B. and remitted the matter to the Family Court, Orange County, for a full hearing on Joseph’s petition for custody or visitation with the children (see Matter of Frank G. v. Renee P.–F., 142 A.D.3d at 930–931, 37 N.Y.S.3d 890). “The law of the case doctrine foreclosed re-examination of issues decided on a prior appeal in the same action, absent a showing of new evidence or a change in the law”. Here, Frank had a full and fair opportunity before the Family Court and on the prior appeal to contest the issue of Joseph’s standing. Frank had neither presented new evidence that would change the determination in the prior appeal nor demonstrated that there had been a subsequent change in the law. Under these circumstances, Frank was barred from raising the same argument again on these appeals

June 1,2016

Appellate Division, First Department

Purpose of Counsel Fees Is to Prevent More Affluent Spouse from Considerably Wearing Down the Opposition. Court Should Not Unduly Rely Upon Financial Circumstances at Time of Decision Rather Than Weighing Historical and Future Earning Capacities of Both Parties

            In Matter of Brookelyn M., v Christopher M, --- N.Y.S.3d ----, 2018 WL 2406234, 2018 N.Y. Slip Op. 03801(1^st Dept.,2018) the Appellant mother and respondent father had a child together. The father filed a custody petition in 2014. The mother cross-moved for custody and sought interim counsel fees. The father cross-moved for counsel fees and filed an affirmation in opposition to the mother’s application for interim counsel fees. The parties arrived at a settlement that resolved the issues in the custody matter, but left counsel fees to the court’s determination. The mother sought counsel fees of $174,000, which the mother claims are attributable to the custody matter. The court denied the mother’s request for counsel fees because, among other reasons, she retained private counsel although she was unemployed at the onset of the litigation. At the time the decision was rendered, she earned an annual gross income of $44,000, and the father was unemployed. The court also held that the conduct of the parties throughout the custody matter did not support an award of counsel fees because it found no evidence that the father unnecessarily prolonged the litigation or that he caused undue fees to accrue in the litigation. The Appellate Division remanded the matter for a fee hearing.  It observed that the purpose of awarding counsel fees is to further the objectives of “litigational parity” and prevent a more affluent spouse from considerably wearing down the opposition. In its dismissal of the mother’s motion for counsel fees, the court unduly relied upon the financial circumstances of the parties at the time it rendered its decision rather than weighing the historical and future earning capacities of both parties. Although the father was unemployed at the time the court’s decision was rendered, and the mother had secured employment, the father earned considerably more than the mother during the course of their relationship and had significantly more expected earning capacity than the mother. The financial and tax documents in the record supported such a conclusion. However, the father was entitled to a hearing so that the relative financial positions of the parties and the value and extent of the counsel fees requested could be examined. While an evidentiary hearing is not required prior to making an interim award, it was required here since the mother was seeking fees following the final resolution of the case. The fees here were significant and the father has raised questions about the bills. Moreover, in assessing the father’s contentions that the mother overlitigated this matter, the court would need to consider what the father spent on legal fees. That information could not be ascertained on the record.

Appellate Division, Second Department

Consideration of Relevant Factors, Including Fact That Wife Was Suffering from Psychiatric Condition and was Unable, For Foreseeable Future, To Be Self-Supporting, Warranted Non-Durational Maintenance Award

            In Greco v Greco, --- N.Y.S.3d ----, 2018 WL 2225174, 2018 N.Y. Slip Op. 03510 (2d Dept., 2018) the parties were married in 1999 and had two children together. In May 2010, the plaintiff commenced the action for a divorce. Following a custody trial, the Supreme Court awarded the plaintiff full custody of the children based upon the defendant’s psychiatric condition. Thereafter, a trial was held on the financial issues. The court, inter alia, awarded the defendant monthly maintenance in the sum of $4,500 for a period of three years and the sum of $114,555.50, representing her equitable share of the appreciated value of the marital residence. The Appellate Division held that, the amount of maintenance awarded by the Supreme Court was consistent with the purpose and function of a maintenance award considering, among other things, the equitable distribution award and the absence of child-rearing responsibilities because the plaintiff was awarded full custody of the children. However, taking into consideration all the relevant factors, including the fact that the defendant was suffering from a psychiatric condition and was unable, for the foreseeable future, to be self-supporting, it was an improvident exercise of the court’s discretion to limit the maintenance award to a period of three years. It modified the duration of the defendant’s maintenance should be until her remarriage or cohabitation, or the death of either party, or until the defendant begins to draw Social Security benefits or reaches the age of 67 or such age that she would qualify for full Social Security benefits, whichever occurs first, at which time the maintenance award would be reduced to $2,000 per month.

            The Appellate Division held that similarly, the Supreme Court improvidently exercised its discretion in failing to direct the plaintiff to pay the defendant’s health insurance premiums. The court should have directed the plaintiff to pay for the defendant’s health insurance premiums until the earliest of such time as the defendant is eligible for Medicaid or Medicare, or she obtains health insurance through employment, or remarries or cohabitates.

Attorneys Failure to Send Client A Bill At Least Every 60 Days Warranted Denial of Post Trial Counsel Fee Application.  Expert Fees May Not Be Awarded Where No Affidavit Submitted from Expert.

 In Greco v Greco, --- N.Y.S.3d ----, 2018 WL 2225194, 2018 N.Y. Slip Op. 03509 (2d Dept., 2018) following the conclusion of the trial on financial issues, the defendant moved for awards of counsel fees and expert witness fees. The court awarded counsel fees of $70,000 payable to Lawrence J. Glynn and $37,500 payable to John A. Gemelli, and expert witness fees of $12,700 payable to the defendant

            The Appellate Division modified. It observed that court rules impose certain requirements upon attorneys who represent clients in domestic relations matters, and the failure to substantially comply with the rules will preclude an attorney’s recovery of a fee from his or her client or from the adversary spouse. A showing of substantial compliance must be made on a prima facie basis as part of the moving party’s papers. Here, the evidence proffered by the defendant in support of an award for work performed by Glynn demonstrated that Glynn failed to substantially comply with the rules requiring periodic billing statements at least every 60 days (see 22 NYCRR 1400.2, 1400.3[9]; Montoya v. Montoya, 143 A.D.3d at 866, 40 N.Y.S.3d 151; Rosado v. Rosado, 100 A.D.3d at 856, 955 N.Y.S.2d 119; Gahagan v. Gahagan, 51 A.D.3d 863, 859 N.Y.S.2d 218). Accordingly, Supreme Court erred in granting Glynn’s counsel’s fees.

            The Appellate Division reversed the award of expert fees. It noted that absent affidavits from the expert witnesses at issue, the Supreme Court lacks a sufficient basis to grant a motion for the award of such fees. As the defendant failed to submit such expert affidavits Supreme Court improvidently exercised its discretion in awarding the defendant expert witness fees.

Family Court

Court Found May Not Validate Illegal Surrogacy Contract by Approving Adoption. Family Court Holds That There Is No Authority for A Parent to Adopt Their Biological Child

            In Matter of Adoption of A, 72 N.Y.S.3d 811, 2018 N.Y. Slip Op. 28088 (Fam Ct, 2018) J.G. (“Mr. G”) filed a petition seeking to adopt his biological son, J., born on October 9, 2017. According to the petition, J. was conceived through a surrogacy arrangement in New York in which it was agreed that Mr. G would be J.’s only parent. The petition stated after transferring frozen embryos of an unknown egg donor into the surrogate’s womb, Mr. G’s sperm was used to artificially inseminate those embryos. Family Court denied the petition. It noted that, surrogacy was outlawed in New York. See DRL § 121 et seq., it is well-settled that a party to a surrogacy contract may not seek a court’s assistance to enforce the agreement, nor will such contract be deemed viable for any other claims arising under its arrangement. See Itskov, 11 Misc. 3d at 69–70, 813 N.Y.S.2d 844. The court found that it may not validate a patently illegal surrogacy contract by approving Mr. G’s adoption of J. Surrogacy agreement aside, the Court found that there is no authority for a parent to adopt their biological child. See DRL § 110; see also Matter of Zoe D.K., 26 A.D.3d 22, 25, 804 N.Y.S.2d 197 (4th Dep’t 2005). DRL § 110 sets forth categories of persons who may adopt, and a natural parent does not fall within them.  Mr. G’s adoption of J. was unwarranted, and the Court declined to approve the adoption.

May 16, 2018

Appellate Division, First Department

An Award of Counsel Fees Under DRL §§237 and 238 Cannot Be Made Merely to Punish A Party For Its Litigation Conduct

In Roddy v Roddy, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 2049379, 2018 N.Y. Slip Op. 03225 (1^st Dept., 2018) the Appellate Division reversed an order of the |Supreme Court which rejected the recommendation of the special referee that plaintiff not be required to reimburse defendant for counsel fees, and directed that plaintiff pay a portion of defendant=s counsel fees. It pointed out that the Domestic Relations Law permits the court to direct a party to pay counsel fees Ato enable the other party to carry on or defend the action or proceeding as, in the court=s discretion, justice requires, having regard to the circumstances of the case and of the respective parties@ . (DRL' 237(a)) These provisions are intended Ato ensure a just resolution of the issues by creating a more level playing field with respect to the parties= respective abilities to pay counsel and permit consideration of many factors, but focus primarily upon the paramount factor of financial need@ (Silverman v. Silverman, 304 A.D.2d 41, 48, 756 N.Y.S.2d 14 [1st Dept. 2003]; Wells v. Serman, 92 A.D.3d 555, 555, 938 N.Y.S.2d 439 [1st Dept. 2012] [an award of counsel fees under these provisions Acannot be made merely to punish a party@ for its litigation conduct] ). Where a party=s inappropriate litigation conduct has adversely affected the other party but both are able to pay their own counsel fees, the appropriate remedy may be a sanction (22 NYCRR 130B1.1), not an award of attorneys= fees.  The court awarded legal fees to defendant based upon its consideration of the merits of plaintiff=s positions in the parties= custody litigation. The court also adopted the special referee=s findings that neither party was the Amonied spouse,@ that each was capable of paying his or her own counsel fees, and that both parties are genuinely concerned for and Adeeply care about their children.@ Under these circumstances, the award of counsel fees under the Domestic Relations Law was improper (Wells v. Serman, 92 A.D.3d 555, 938 N.Y.S.2d 439).

Appellate Division, Fourth Department

When Supreme Court exercises jurisdiction over a matter which Family Court might have exercised jurisdiction, it is required to advise an unrepresented party of right to have counsel assigned by the court where he or she is financially unable to obtain the same.

In DiBella v DiBella, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 2048993, 2018 N.Y. Slip Op. 03186 (3d Dept., 2018 the mother appealed from the divorce judgment contending that she was deprived of her statutory right to counsel when Supreme Court compelled her to proceed with the continuation of trial without the aid of counsel. The mother was represented by counsel at the first four days of trial in May, June and July 2014. In October 2014, however, the mother appeared before Supreme Court and indicated that she was discharging her attorney and intended to hire replacement counsel to represent her for the remainder of the trial. The mother represented to Supreme Court that she would need at least two or three months to make arrangements for hiring a new attorney because the normal retainer for an attorney was $3,000. Supreme Court thereafter cautioned the mother to procure new counsel Asooner rather than later.@ Supreme Court adjourned the case and scheduled two additional trial dates on May 27, 2015 and June 3, 2015. On May 27, 2015, the mother appeared in court, explaining that, although she had retained new counsel, he was unable to attend that day and, therefore, she requested the court to Aextend@ or Ahold off@ proceeding with the continuation of the trial until June 3, 2015. Supreme Court denied the mother=s request for an adjournment, indicating that no notice of appearance had been filed by the mother=s replacement counsel and that it could not rely solely upon her statement that she may be represented by counsel going forward. Supreme Court then proceeded with the trial, informing the mother that, under the circumstances, she was going to have to proceed pro se.

            The Appellate Division observed that pursuant to Judiciary Law ' 35(8), when Supreme Court exercises Ajurisdiction over a matter which the [F]amily [C]ourt might have exercised jurisdiction had such action or proceeding been commenced in [F]amily [C]ourt or referred thereto pursuant to law,@ Supreme Court is required to abide by the requirements set forth in Family Ct Act ' 262 (see Carney v. Carney, BBBA.D.3d BBBB, BBBB, BBB N.E.3d BBBB, 2018 N.Y. Slip Op. 02034, *3 [2018]) Family Ct Act ' 262(a) provides, in relevant part, that a parent of any child seeking custody must be advised Abefore proceeding that he or she has the right to be represented by counsel of his or her own choosing, of the right to have an adjournment to confer with counsel, and of the right to have counsel assigned by the court in any case where he or she is financially unable to obtain the same@ (see Family Ct Act ' 262[a][v] ). The deprivation of a party=s statutory right to counsel Arequires reversal, without regard to the merits of the unrepresented party=s position. There was nothing in the record to indicate that Supreme Court ever advised the mother of her rights pursuant to Family Ct Act ' 262(a). It was incumbent upon the courtCparticularly in light of the mother=s expressed need for several months to obtain the necessary retainer feeCto advise her of the right to assigned counsel in the event that she could not afford same. In the absence of the requisite statutory advisement of her right to counsel (see Family Ct Act ' 262[a][v]) or a valid waiver of such right the mother was deprived of her fundamental right to counsel (see Family Ct Act '' 261, 262[a][v]; Judiciary Law ' 35[8]. Under the circumstances, it remitted the matter to Supreme Court for a new trial on the issues of custody, visitation and child support.

Courts Failure to Comply with DRL ' 75Bi [2]) and DRL ' 75Bi [4] requires reversal of Custody determination regarding Jurisdiction.

 In Matter of Beyer v Hofmann, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 2075877, 2018 N.Y. Slip Op. 03259 (4^th Dept., 2018) the children were born in New York and lived with both parties in New York until December 29, 2015, when the parties moved with the children to State College, Pennsylvania. In April 2016 the children and respondent mother moved to York, Pennsylvania without the father, and the father thereafter returned to New York. He commenced a proceeding on June 6, 2016, and the mother commenced a custody proceeding in Pennsylvania on August 9, 2016. The Appellate Division observed that under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), adopted by New York (Domestic Relations Law art 5BA) and Pennsylvania (23 Pa Cons Stat Ann ' 5401 et seq.), Family Court had jurisdiction to make an initial custody determination at the time the father commenced the instant proceeding (see Domestic Relations Law '' 75Ba [7]; 76[1][a]) and Pennsylvania had such jurisdiction at the time the mother commenced the proceeding in that state (see 23 Pa Cons Stat Ann '' 5402, 5421[a][1] ). It held that Family Court erred in declining to exercise jurisdiction and dismissing the proceeding without following the procedures required by the UCCJEA. The court, after determining that another child custody proceeding had been commenced in Pennsylvania, properly communicated with the Pennsylvania court (see Domestic Relations Law ' 76Be [2]). The court erred, however, in failing either to allow the parties to participate in the communication (see ' 75Bi [2]), or to give the parties Athe opportunity to present facts and legal arguments before a decision on jurisdiction [was] made@ (' 75Bi [2]). The court also violated the requirements of the UCCJEA when it failed to create a record of its communication with the Pennsylvania court (see ' 75Bi [4]). The summary and explanation of the court=s determination following the telephone conference with the Pennsylvania court did not comply with the statutory mandate to make a record of the communication between courts.

The Appellate Division found that there were insufficient facts in the record to make a determination, (see Domestic Relations Law ' 76Bf [2][a] ‑[h]), regarding which state was the more convenient forum to resolve the issue of custody. It reversed the order, reinstated the petition and remit the matter to Family Court for further proceedings on the petition.  It noted that the events subsequent to the entry of the order it was reversing may be relevant to and can be considered on remittal (Andrews, 44 A.D.3d at 1111, 844 N.Y.S.2d 147).

Supreme Court

[[International Child Abduction][Hague Convention] Dominican Republic] [Habitual Residence][Grave risk of harm]

 In LM v JF, 2018 WL 2171080 (Sup. Ct., 2018) the Court granted the mothers Hague Convention Petition for an order directing the return of the parties son to the Dominican Republic.

The parties were never married. The Mother was a citizen of the Dominican Republic and the Father was a citizen of the United States. The parties met in 2010 in the Dominican Republic where both were enrolled in medical school. The Child was born in the Dominican Republic, was raised in the Dominican Republic and spent time each year visiting the Father=s family whom resided in Levittown, New York. Prior to the Child=s first visit to the United States the parties obtained a United States passport and United States citizenship for the Child. During a stay in New York in or about April, 2013, the parties obtained a social security card on behalf of the Child listing the Levittown, New York, address as the Child=s residence.

 The Mother graduated from medical school in 2011. In August, 2014, the Mother left for Rochester, New York to begin studies for a Masters Degree while the Father remained in the Dominican Republic with the Child. The Mother visited the Child and communicated with the Child via ASkype@ while in Rochester.   In August of 2015, the Father learned that the Mother had become romantically involved with another man while in Rochester, New York. The Mother completed her Master=s Degree and returned to the Dominican Republic in February, 2016. Upon her return, the Mother stated that the Father did not allow her to see the Child until four days later. She  sought the assistance of the Dominican Republic courts and the parties agreed to an Ainformal arrangement@ where the Mother would be permitted to spend time with the Child. In March, 2016, the Mother filed documents with the authorities in the Dominican Republic to prevent the Father from leaving the Country with the Child without her consent. On March 15, 2016, there was an altercation between the parties wherein the Father alleged the Mother had pushed her way inside his home and physically lunged at him. The parties returned to court and obtained a reciprocal Aorder of protection.@

On October 19, 2016, both parties, while represented by counsel, appeared in court and agreed to an order wherein they would equally share time with the Child. On November 30, 2016, the Father, the Child and the Paternal Grandmother, traveled to the Father=s parent=s home in Levittown, New York, with no intention of returning. On December 5, 2016, the Father filed a custody petition in Family Court which granted the Father=s application for sole legal and residential custody of the Child upon the default of the Mother. The Mother commenced this proceeding on August 23, 2017 by Order to Show Cause seeking an Order directing the Child=s return to the Dominican Republic.

Supreme Court found that the Dominican Republic was the child=s habitual residence under the analysis established by Gitter v. Gitter, 396 F.3d 124, 133 (2d Cir. 2005) as follows: AFirst, the court should inquire into the shared intent of those entitled to fix the child=s residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents= latest shared intent.@

 Based upon the testimony the court concluded that, the Dominican Republic was the Child=s habitual residence. Although the Child enjoyed frequent visits to New York where he stayed in the home of the Father=s parents, the majority of his life was spent in the Dominican Republic. It was where his home was, where he attended preschool, where he attended church and where his medical doctors were. There is a distinction to be made between a child who goes somewhere for a temporary duration and a child permanently moving to a new location. A Child who goes somewhere for a temporary duration, such as summer camp, is not considered to have acquired a new habitual residence because Ahe already has an established habitual residence elsewhere and his absence from itCeven from an entire summerCis not indication that he means to abandon it.@ Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) (quoting Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001). There was no evidence that the Child unequivocally acclimated to a location other than the Dominican Republic so as to allow the Court to disregard the intent of the parties. The fact that Child may have acclimated to the United States from the time he was removed on November 30, 2016 until now is not the acclimation intended under this habitual resident analysis: The change in geography must occur before the questionable removal; here, the removal precipitated the change in geography. If we were to determine that by removing Thomas from his habitual residence without Mr. Friedrich=s knowledge or consent Ms. Friedrich >altered= Thomas=s habitual residence, we would render the Convention meaningless.@ (Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993) Supreme Court also found that the Mother had rights of custody at the time the Father and Child left the country and she was exercising her custody rights when the Child was removed. It found that the Mother had met her burden and established by a preponderance of the evidence that the Child was wrongfully removed from his place of habitual residence.

Supreme Court noted that with regard to the grave risk of harm defense the parent opposing the Child=s return must show that the risk to the child is grave, not just serious, and the harm must be more than a potential harm. There must be a direct threat to the Child upon his return to the Dominican Republic in order for this exception to apply. The Court considered the testimony of the Father and the Paternal Grandmother regarding allegations that the Mother abused or neglected the Child and that the Dominican Republic authorities did not satisfactorily address these allegations.

The Father presented photographs of the Child depicting unclean fingernails, an ear infection, mosquito bites, scabbing, cuts, burns and rashes. The Father testified that was the condition the Child was in when he returned from the Mother=s care in 2016. The Father testified that he went to court representatives with the Child, to the police and to child protective services but that no assistance was provided to him. The Father did not provide any records of said reports. On cross examination, the Father testified that the child is considered to be hypersensitive to mosquito bites and that the scars on his body were caused by scratching scabies. He testified that the Child had only one ear infection and although he did  not know with certainty what caused it, he concluded it was the Mother=s fault. The Child=s medical records were reviewed and the Father testified that the pediatrician=s records stated that the Child was regularly brought to his office as a healthy child who was at times afflicted by allergies to insect bites. There was no mention of any burns or any child abuse. The Father testified that since November, 2017, the Child cried, screamed and begged the Father to not make him see the Mother before the Mother=s parenting time. He testified that the Child returned from visits with the Mother angry and sad. The Father also testified that he did not believe the court in the Dominican Republic did or would do anything about his concerns. However, the Father offered no credible evidence that the courts failed to act on a legitimate threat to safety of the Child. He offered no basis for this Court to conclude that the Dominican Republic authorities had not and will not act in the best interests of the Child.

The Father offered the testimony of an expert in the field of forensic evaluations and children=s mental health who never interviewed or observed the Mother. She concluded that the Child was suffering trauma due to the relationship with the Mother but testified that the cause of that trauma could not be clinically ascertained. On cross examination, the witness testified that the trauma could be because the Child was used to being with both of his parents, or it could be because he did not see the Mother, or it could be some other reason. The Court was not convinced that the Child=s reaction to the mention of the Mother was because of abuse or neglect at the hands of the Mother. The expert agreed on cross examination that while she believed the Child=s trauma related to the Mother, it could be because of the trauma of the removal or some other reason.

The Court  found that the Child=s comfort in his current environment was not a basis for the Child to remain in the United States. Whatever re‑adjustment period the Child may have to undergo in the Dominican Republic is not considered a Agrave harm@ under the Convention. It is well established that the Aharm@ set forth in the grave harm exception must be Agreater than would normally be expected on taking a child away from one parent and passing him to another.@ Madrigal v. Tellez, 848 F.3d 669 (5th Cir. 2017); NunezBEscudero, 58 F.3d 374 (8th Cir. 1995).

The Court held that the Father had not established, by clear and convincing evidence, that the Child will be subjected to a grave risk of harm if he returned to the Dominican Republic or any other affirmative defense.

May 1, 2016

Recent Legislation

Family Court Act §812 (1) amended

            The opening paragraph of Family Court Act §812 (1) has been amended to add coercion in the third degree as one of the crimes that constitutes a family offense. In now reads as follows:

     The  family court and the criminal courts shall have concurrent jurisdiction over any  proceeding  concerning  acts  which  would  constitute disorderly  conduct,  harassment  in the first degree, harassment in the second degree,  aggravated  harassment  in  the  second  degree,  sexual misconduct,  forcible touching, sexual abuse in the third degree, sexual abuse in the second degree as set forth in subdivision  one  of  section 130.60  of  the penal law, stalking in the first degree, stalking in the second degree, stalking in the third  degree,  stalking  in  the  fourth degree,  criminal  mischief,  menacing in the second degree, menacing in the third degree, reckless endangerment, criminal obstruction of breathing or blood circulation, strangulation in the second degree, strangulation in the first degree, assault in the second degree, assault  in  the third  degree, an attempted assault, identity theft in the first degree, identity theft in the second degree, identity theft in the third degree, grand larceny in the fourth degree, grand larceny in  the  third  degree,  coercion  in the second degree or coercion in the third degree as set forth in subdivisions one, two and three of section  135.60  of  the penal law between spouses or former spouses, or between parent and child

 or between members of the same family or household except that if the respondent would not be criminally responsible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive   jurisdiction   over   such   proceeding.  Notwithstanding a complainant's election to proceed in family court, the criminal court shall not be divested of jurisdiction to hear a family offense proceeding pursuant to this section. In any proceeding pursuant to this article, a court shall not deny an order of protection, or dismiss a petition, solely on the basis that the acts or events alleged are not relatively contemporaneous with the date of the petition, the conclusion of the fact-finding or the conclusion of the dispositional hearing. For purposes of this article, “disorderly conduct” includes disorderly conduct not in a public place. For purposes of this article, "members of the same family or household" shall mean the following:

               Laws of 2018, Ch 55, Part NN, §5, Effective as provided in § 10 on November 1, 2018.

Appellate Division, Second Department

Mother’s Summer Visitation Reduced, Due to Child’s Changing Circumstances, as he Grew Older

In Miller v Shaw, --- N.Y.S.3d ----, 2018 WL 1734617, 2018 N.Y. Slip Op. 02471 (2d Dept., 2018) the Appellate Division found that the child’s changing needs as he grew older constituted a change in circumstances warranting modification of the visitation schedule so as to reduce the mother’s summer visitation with the child.  It noted, among other things, that a child’s expressed preference, while not determinative, may also be indicative of the child’s best interests. In weighing this factor, the court must consider the age and maturity of the child and the potential for influence having been exerted on the child. Despite expressing his love for his mother and his desire not to hurt her, the child unequivocally expressed his desire not to have extended visitation with the mother, articulating legitimate reasons in support of this preference. The child noted his schooling and preparation for college, as well as the numerous activities in which he participates in Florida, as some of the reasons why he wanted to spend less time in New York. The child was 16 years old and had a notable level of maturity, which clearly enabled him to form and express his own desires, and there is nothing in the record to indicate that influence was exerted on him by anyone. Accordingly, the Family Court’s determination was supported by a sound and substantial basis in the record.

Respondents Statement That He Would “Kick [The Petitioner’s] Ass” Is Not A Family Offense

In Benjamin v Benjamin, --- N.Y.S.3d ----, 2018 WL 1833135, 2018 N.Y. Slip Op. 02631 (2d Dept., 2018) the Appellate Division reversed an order which determined that the appellant, the child’s grandfather, in effect, had committed the family offense of harassment in the second degree and issued an order of protection. It found that petitioner failed to establish by a fair preponderance of the evidence that the appellant, in effect, committed the family offense of harassment in the second degree. The testimony at the hearing established only that the appellant stated that he would “kick [the petitioner’s] ass” when he saw him on the street. Such conduct does not establish the family offense of harassment in the second degree as there was no evidence that the statement was “either serious [or] should reasonably have been taken to be serious” (People v. Dietze, 75 N.Y.2d 47, 53, 550 N.Y.S.2d 595, 549 N.E.2d 1166).

Appellate Division, Third Department

Court Has No Authority To Modify Unincorporated Settlement Agreement.

            In Abdelrahaman v Mahdi, --- N.Y.S.3d ----, 2018 WL 1864537, 2018 N.Y. Slip Op. 02698 (3d Dept, 2018) while an action for a divorce was pending the parties executed a written agreement adopting an oral stipulation that had been placed on the record providing for payment of child support and durational maintenance, and subsequently executed an addendum. On March 7, 2016, the husband an affidavit in support of a motion seeking a reduction, and temporary suspension, of his child support and maintenance obligations on the basis that he had been terminated from his employment in February 2016. The agreement and the addendum each provided for incorporation, without merger, in the judgment of divorce; however, neither an order governing child support and maintenance nor a judgment of divorce had been entered when the husband made his motion or when the wife served her answering papers. The Appellate Division reversed the order of Supreme Court while found that the husband did not cause the loss of his employment and that he had been diligently seeking employment and granted the husband’s motion to the extent of suspending his child support and maintenance obligations for 90 days or until he secured employment, whichever first occurred, and forgiving all arrears that had accrued prior to August 11, 2016—the date that the hearing was held. It held that inasmuch as the record did not establish the existence of an order governing child support and maintenance or a judgment of divorce, the separation agreement was the sole source of the husband’s obligation to pay child support and maintenance. On this record, there was no valid basis for Supreme Court to suspend the husband’s contractual obligation to pay child support and maintenance. The husband sought modification of the terms of the agreement with respect to his child support and maintenance obligations, by motion, on the ground that his loss of employment constituted a change in circumstances that warranted modification—a standard that applies to modification of orders and judgments (see Domestic Relations Law § 236[B][9][b])—but he made no argument that the settlement agreement was invalid. Supreme Court may, upon a proper showing establishing a change in circumstances, modify an order or judgment of divorce that incorporates a settlement agreement. However, the court had no authority under the present circumstances to grant the husband’s motion by modifying the settlement agreement.

April 16, 2018

Appellate Division, First Department

First Department Holds Support Magistrate Acted Outside Bounds of Authority When, He Deferred Issue of a Recommendation as To the Father’s Incarceration to A “Post-Dispositional Hearing

            In Matter of Carmen R. v Luis I, --- N.Y.S.3d ----, 2018 WL 1720655, 2018 N.Y. Slip Op. 02422 (1^st Dept., 2018) the Appellate Division held that the Support Magistrate acted outside the bounds of his authority when, after issuing a written fact-finding order in which he determined that the father had willfully violated a child support order, he deferred the issue of a recommendation as to the father’s incarceration to a “post-dispositional hearing.” The Support Magistrate’s decision contravened Family Court Rule § 205.43(g)(3), which states that, upon a finding of willful violation, the findings of fact shall include “a recommendation whether the sanction of incarceration is recommended,” and Rule § 205.43(f), which requires that the written findings be issued within five court days after completion of the hearing. Here, instead of issuing such recommendation in his March 7, 2017 fact-finding order after completion of the hearing on the violation petition that day, the Support Magistrate improperly set the matter down for “post-dispositional review” to commence on May 1, 2017, 54 days later. That hearing lasted several months. During this time, the father continued to violate the support order. The Family Court then compounded the Support Magistrate’s error of law by denying the mother’s objections as premature, leaving her with no recourse to effectively challenge the further delay that ensued.

             The Family Court denied the mother’s objections to the Support Magistrate’s fact-finding order because it found that the order was not “final.” The order cited Family Court Act Section 439(e), which permits objections to a “final” order of a Support Magistrate, and Section 439(a), which provides that a “determination by a Support Magistrate that a person is in willful violation of an order ... and that recommends commitment ... shall have no force and effect until confirmed by a judge of the court.” This was error. First, under the plain language of the statute, the Support Magistrate’s fact-finding order was not an order that “shall have no force and effect until confirmed by a judge of the court,” since it did not recommend incarceration. The Support Magistrate’s failure to make a recommendation as to incarceration upon his finding of willfulness essentially constituted a recommendation against incarceration, since the mother could not seek that remedy without a recommendation from the Support Magistrate. Moreover, the parties were entitled to a complete written fact-finding order, including a recommendation as to incarceration, within five court days following completion of the hearing on the mother’s violation petition (22 NYCRR § 205.43[f], [g]). Accordingly, the Family Court should have considered the mother’s objections, and, upon doing so, should have exercised its authority to remand the matter to the Support Magistrate for an immediate recommendation as to incarceration, or to make, with or without holding a new hearing, its own findings of fact and order based on the record (Family Court Act § 439[e]).

            The Family Court’s order cited to trial court cases finding that Family Court may consider objections to nonfinal orders where irreparable harm would result from denial of permission to file such objections. It nevertheless found that “a delay in the disposition of a violation of child support petition is not an irreparable harm.” However, under the circumstances of this case, the mother made a prima facie showing that she suffered irreparable harm. A litigant has a right to bring a violation petition to an expeditious final disposition (Family Court Act § 439–a). The mother was deprived of the “expedited process” guaranteed by statute and the Family Court Rules when the support magistrate conducted protracted unauthorized “post-dispositional” proceedings.

Appellate Division, Third Department

Wife Carried Burden of Raising Material Issue of Fact to Defeat Husbands Motion for Summary Judgment with Regard to Validity of Prenuptial Agreement. Concurring Opinion Says Court Established Dramatically Lower Standard for Challenging Prenuptial Agreements.

In Carter v Fairchild-Carter, 2018 WL 1525180 (3d Dept., 2018) the Appellate Division found that the wife carried her burden of raising a material issue of fact to defeat the husbands motion for summary judgment with regard to the validity of the parties prenuptial agreement. In opposition to the husband’s motion, the wife submitted an affidavit in which she stated that shortly before the wedding day, the husband presented her with a prenuptial agreement. The wife, on the advice of her counsel, told the husband that she could not sign it or marry him unless he made some changes—namely, that she would get half the value of the land and house where they resided and 50% of everything they acquired during the marriage. The wife further averred that, on “the very day before the wedding” and as she was making final preparations for the wedding, the husband presented her with a revised prenuptial agreement, told her that he had made the requested changes and assured her that she would be taken care of for the rest of her life. The wife stated that she was given this new prenuptial agreement while standing outside the County Clerk’s office and that the husband “didn’t really give [her] time to even read the document, let alone take it back to the lawyer to look at it again.” She stated that she was feeling stressed and pressured with the wedding planning and “just signed the document.” It held that these facts, if credited, give rise to the inference of overreaching (citing Leighton v. Leighton, 46 A.D.3d 264, 265, 847 N.Y.S.2d 64 [2007]). Accordingly, Supreme Court properly denied the husband’s summary judgment motion.

                       

          Justice Rumsey, concurring, expressed his concern that at the majority's determination that the wife met her burden based upon allegations that she was pressured into signing the prenuptial agreement on the day prior to the wedding without reading it established a dramatically lower standard for challenging prenuptial agreements that contravenes our long-standing precedent. He observed that the Court had upheld the validity of a prenuptial agreement that was executed under circumstances strikingly similar to those that the majority holds may now be used to establish overreaching—namely, (1) the husband requested the prenuptial agreement, (2) the agreement was prepared by the husband's attorney at his direction,(3) the agreement was executed only a few hours prior to the parties' wedding, and (4) the wife did not read the agreement or seek to have it reviewed by her counsel before she signed it (Matter of Garbade, 221 A.D.2d 844, 845, 633 N.Y.S.2d 878 [1995], lv denied 88 N.Y.2d 803, 645 N.Y.S.2d 446, 668 N.E.2d 417 [1996] ). It found that such circumstances established “nothing more than [the wife's] own dereliction in failing to acquaint herself with the provisions of the agreement and to obtain the benefit of independent legal counsel[, and a]lthough this dereliction may have caused her to be ignorant of the precise terms of the agreement, the fact remains that, absent fraud or other misconduct, parties are bound by their signatures” He further noted that the case on which the majority primarily relied in finding that the wife's allegations regarding the circumstances surrounding execution of the agreement on the eve of the wedding establish the existence of overreaching—Leighton v. Leighton, 46 A.D.3d 264, 265, 847 N.Y.S.2d 64 [2007], appeal dismissed 10 N.Y.3d 739, 853 N.Y.S.2d 281, 882 N.E.2d 894 (2008)—was a 3–2 decision of the First Department that, in his view, contravened the Courts own precedent.

Use of Funds Withdrawn from Account That Is Separate Property to Pay Marital Expenses Does Not Change the Character of The Account to Marital Property.

            In Giannuzzi v Kearney, --- N.Y.S.3d ----, 2018 WL 1629752, 2018 N.Y. Slip Op. 02378 (3d Dept., 2018) Plaintiff (wife) and defendant (husband) were married in 1998 and had no children. In 2013, the wife commenced this action for divorce. Prior to the marriage, the wife inherited IBM stock from her grandfather worth in excess of $1 million. Supreme Court granted the wife a divorce and, in relevant part, determined that the wife’s IBM stock was her separate property.

            The Appellate Division rejected the husband’s contention on appeal  that Supreme Court erred in determining that the wife’s IBM stock was her separate property. Property acquired by a spouse prior to the marriage is separate property, unless it is transmuted into marital property during the course of the marriage (see Domestic Relations Law § 236[B][1][d]; Spera v. Spera, 71 A.D.3d 661, 664, 898 N.Y.S.2d 548 [2010]; Sherman v. Sherman, 304 A.D.2d 744, 744, 758 N.Y.S.2d 667 [2003]). The IBM stock, including any reinvestment thereof, remained in accounts maintained exclusively in the wife’s name throughout the marriage. It rejected his argument that the IBM stock became marital property because the parties filed joint income tax returns reporting income derived from the IBM stock, the parties utilized dividends received from the IBM stock to maintain the marital standard of living, and the IBM stock was pledged as collateral to secure the loan that the parties obtained to finance the purchase of several of the Florida properties.

            The Appellate Division noted that a party to litigation is precluded from taking a position contrary to affirmative elections or representations made on an income tax return that are material to the characterization or taxation of any income derived from the separate property (see Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415, 422, 881 N.Y.S.2d 369, 909 N.E.2d 62 [2009]; Winship v. Winship, 115 A.D.3d 1328, 1330, 984 N.Y.S.2d 247 [2014] ). For example, income realized from the sale, during the marriage, of corporate stock that was separate property was properly classified as marital property because it had been reported on a federal income tax return as ordinary income, rather than as capital gains realized upon the sale of an asset, and income earned during the marriage is marital property (see Mahoney–Buntzman v. Buntzman, 12 N.Y.3d at 422, 881 N.Y.S.2d 369, 909 N.E.2d 62). Similarly, the argument that a farm was separate property because it had been inherited by one spouse in 2010 was inconsistent with the fact that the parties had depreciated property and equipment used to operate the farm on joint returns that they filed from 2000 through 2008, because a party cannot depreciate property that he or she does not own (see Winship v. Winship, 115 A.D.3d at 1329–1330, 984 N.Y.S.2d 247). By contrast, the mere reporting of income earned from the separate assets of one spouse on a joint return does not transmute the separate property to marital property because both spouses are required to report all of their income, whatever the source, on a joint return. It agreed that a contrary rule “would force married persons to file separate income tax returns, and to pay higher income taxes, simply to protect the non-marital status of their separate property” (Holden v. Holden, 667 So.2d 867, 869 [Fla. Dist. Ct. App. 1996]). Here, the wife’s assertion that the IBM stock was her separate property was not contrary to any position that she had taken by reporting income derived from her IBM stock on the parties’ joint income tax returns as dividends and capital gains.

            It is also well-settled that the use of funds withdrawn from an account that is separate property to pay marital expenses does not change the character of the account to marital property. Thus, the use of dividends earned on the wife’s IBM stock to pay marital expenses was insufficient to transform the stock to marital property. Similarly, the pledge of the IBM stock as collateral for the loan used to acquire several parcels of real property located in Florida did not transmute all or any portion of the stock to separate property. This conclusion is illustrated by the fact that a spouse who contributes separate property toward the purchase of a marital asset, or whose separate property is used to pay a marital debt that was incurred to acquire a marital asset, is entitled to a credit for the separate property contribution.

April 1, 2018

Court Rules

Appellate Divisions Adopt Uniform Rules for Practice

“Practice Rules of the Appellate Division” have been Approved by Joint Order of the Departments of the New York State Supreme Court, Appellate Division on December 12, 2017. The Practice Rules are effective September 15, 2018.

Appellate Division, Second Department

Separation agreement evidencing parties’ agreement to live separate and apart complies with Domestic Relations Law § 110  requirements for adoption.

In Matter of Jason, --- N.Y.S.3d ----, 2018 WL 1404086, 2018 N.Y. Slip Op. 01922 (2d Dept, 2018 ) the petitioner commenced a proceeding to adopt her grandson, who was placed with her in foster care and freed for adoption. The SCO Family of Services, which placed the child with the petitioner,  approved the adoption. The petitioner had been separated from her spouse since June 2016, and a separation agreement was executed by the petitioner and her spouse and duly acknowledged on May 12, 2017. The Family Court determined that the separation agreement was insufficient to comply with the requirements of Domestic Relations Law § 110 because it was merely an agreement by the parties to live separately and apart and did not contain any substantive provisions settling marital issues. The court  concluded that the petitioner lacked standing under Domestic Relations Law § 110 to adopt without her spouse and dismissed the petition without prejudice based on lack of standing. The Appellate Division reversed. It noted that Domestic Relations Law § 110 dictates who has standing to adopt. As relevant here, an “adult married person who is living separate and apart from his or her spouse ... pursuant to a written agreement of separation subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded ... may adopt another person” without his or her spouse (Domestic Relations Law § 110). The court noted that a separation agreement may contain substantive provisions settling marital issues such as equitable distribution and maintenance. However, the agreement is ‘simply intended as evidence of the authenticity and reality of the separation. Thus, for example, where the substantive provisions of a separation agreement have been invalidated as unconscionable, the agreement “generally ... may still be accepted for the sole purpose of evidencing the parties’ agreement to live separate and apart, thus satisfying the statutory requirement in respect to a separation agreement” in providing grounds for a conversion divorce under Domestic Relations Law § 170(6) (Christian v. Christian, 42 N.Y.2d at 70).Here, the separation agreement evidenced the parties’ agreement to live separate and apart; it was in writing, subscribed by the parties thereto, and acknowledged in the form required to entitle a deed to be recorded (see Domestic Relations Law § 110). Therefore, it satisfied the statutory requirement of the adoption statute with respect to a separation agreement.

           

Statements made during preliminary conference are not admissible at fact-finding hearing on order of protection

In Almaguer v Almaguer,  2018 WL 1404102 (Mem), 2018 N.Y. Slip Op. 01916 (Mem) (2d Dept., 2018) the Appellate Division reversed an order of protection granted to the wife and remitted for a new hearing. The parties were married,  lived together for over 20 years, and were the parents of three children. The wife commenced a proceeding by filing a petition alleging, inter alia, that the husband committed the family offense of harassment in the second degree by threatening to kill her if she filed for divorce. The Appellate Division held that in making its determination, the Family Court erred in considering and relying upon statements made by the husband during a preliminary conference and in proceedings prior to the hearing. Statements made during a preliminary conference are not admissible at a fact-finding hearing (see Family Ct Act § 824). Moreover, the court may not rely upon evidence of an incident not charged in the petition in sustaining a charge of harassment (see Matter of Czop v. Czop, 21 A.D.3d 958, 801 N.Y.S.2d 63.

Appellate Division, Fourth Department

Courts may not impute income to a party in determining the party’s eligibility for assigned counsel.

            In Carney v Carney, --- N.Y.S.3d ----, 2018 WL 1441079, 2018 N.Y. Slip Op. 02034 (4^th Dept., 2018) the Appellate Division held that courts may not impute income to a party in determining the party’s eligibility for assigned counsel.

            Defendant appeared pro se and requested that counsel be appointed for him given his status as an unemployed graduate student and his lack of a full-time job. Defendant admitted that his living expenses were “next to nothing,” except for his car payment and insurance, because he had been residing with his parents for 6½ years. The court expressed reservation about appointing counsel because of defendant’s advanced degree and demonstrated “high level of skills,” stated that its “obligation is to protect the taxpayers of this state,” and questioned whether it could impute income to defendant before making a decision on his request for assigned counsel. The court determined that there was no authority restricting its ability to impute income to an applicant for assigned counsel. The court then created a framework for an adversarial hearing by appointing the Public Defender’s Office to represent defendant for the limited purpose of supporting his application for assigned counsel and appointing special counsel to present the facts in favor of imputation. The court ordered an evidentiary hearing to determine defendant’s eligibility for assigned counsel based on any imputed income. Following the evidentiary hearing, the court issued the order in appeal No. 2 in which it determined that $50,000 in income should be imputed to defendant and that defendant was not eligible for the appointment of counsel in the pending proceeding (Carney v. Carney, 55 Misc.3d 1220[A], 2017 N.Y. Slip Op. 50667[U], *16, 2017 WL 2271317 [Sup. Ct., Monroe County 2017] ).

            The Appellate Division reversed. It observed that as pertinent here, any person seeking custody of his or her child or “contesting the substantial infringement of his or her right to custody of such child” (FCA § 262[a][v] ), as well as “any person in any proceeding before the court in which an order ... is being sought to hold such person in contempt of the court or in willful violation of a previous order of the court” (§ 262[a][vi] ), has “the right to have counsel assigned by the court in any case where he or she is financially unable to obtain the same” (§ 262[a]; see County Law § 722; Judiciary Law § 770;. Where, as here, Supreme Court exercises jurisdiction over a matter over which Family Court might have exercised jurisdiction had the proceeding been commenced there, Supreme Court must appoint counsel if required under Family Court Act § 262 (see Judiciary Law § 35[8] ).“Where a party indicates an inability to retain private counsel, the court must make inquiry to determine whether the party is eligible for court-appointed counsel. In fulfilling that obligation, the court may inquire into the person’s financial circumstances, including, but not limited to, his or her income, expenses, obligations and other relevant financial information and, in furtherance of that inquiry, the court may require the submission of documentation. Here, the submissions in support of the motion for the assignment of counsel confirmed a lack of income and assets. In light of these financial circumstances defendant qualified for assigned counsel pursuant to the Public Defender’s Office eligibility guidelines.

            The Appellate Division held that the court had no authority to deprive defendant of his constitutional and statutory right to counsel on the basis of imputed income, and it therefore lacked the authority to conduct a hearing on that issue, requiring reversal.

End of Document

           

 In Matter of Kelly v Fifield, --- N.Y.S.3d ----, 2018 WL 1441971, 2018 N.Y. Slip Op. 02110 (4^th Dept., 2018) the Appellate Division held that where, as here, a prior order provides for visitation as the parties may mutually agree, a party who is unable to obtain visitation pursuant to that order “may file a petition seeking to enforce or modify the order”. It agreed  with the father that the court erred in dismissing the modification petition without a hearing inasmuch as the father made “a sufficient evidentiary showing of a change in circumstances to require a hearing” The father adequately alleged a change of circumstances insofar as the visitation arrangement based upon mutual agreement was no longer tenable given that the mother purportedly denied the father any contact with the child. In addition, it noted that there is a rebuttable presumption that visitation is in the child’s best interests

Where the UIFSA and the FFCCSOA conflicted when applied to the facts,  Appellate Division concluded that the FFCCSOA preempted the UIFSA.

           

             In Matter of Reynolds v Evans, --- N.Y.S.3d ----, 2018 WL 1441435, 2018 N.Y. Slip Op. 02077 (4^th Dept., 2018) the Appellate Division held that Family Court erred in dismissing the fathers petition to modify a New Jersey child support order based upon lack of subject matter jurisdiction. The father and respondent mother previously resided in New Jersey with the child, and a New Jersey court issued a child support order in 2001. The mother and child thereafter relocated to Tennessee, and the father relocated to New York. In 2004, the New Jersey child support order was registered in New York for purposes of enforcement. In 2016, the father filed a instant petition in New York seeking a downward modification of his child support obligation. In order to modify an out-of-state child support order under the Uniform Interstate Family Support Act ( [UIFSA] Family Ct Act art 5–B), the order must be registered in New York and, in relevant part, the following conditions must be present: “(i) neither the child, nor the obligee who is an individual, nor the obligor resides in the issuing state; (ii) a petitioner who is a nonresident of this state seeks modification; and (iii) the respondent is subject to the personal jurisdiction of the tribunal of this state” (§ 580–611 [a][1] ). Although the New Jersey child support order was registered in New York, the father was the petitioner and he was a resident of New York. Therefore, under the UIFSA, the father could not properly bring the petition for modification of the New Jersey child support order in New York. The father could, however, properly bring the petition for modification in New York under the Full Faith and Credit for Child Support Orders Act ( [FFCCSOA] 28 USC § 1738B.. Under the FFCCSOA, a New York court may modify an out-of-state child support order if “the court has jurisdiction to make such a child support order pursuant to [28 USC § 1738B] subsection (i)” and, in relevant part, “the court of the other State no longer has continuing, exclusive jurisdiction of the child support order because that State no longer is the child’s State or the residence of any individual contestant” (28 USC § 1738B [e][1], [2][A] ). Here, neither the parties nor the child continued to reside in New Jersey, and New Jersey therefore ceased to have continuing, exclusive jurisdiction (see Family Ct Act § 580–205[a][1]; 28 USC § 1738B [d] ). Although the UIFSA and the FFCCSOA “have complementary policy goals and should be read in tandem” (Matter of Spencer v. Spencer, 10 N.Y.3d 60, 65–66, 853 N.Y.S.2d 274, 882 N.E.2d 886 [2008] ), the UIFSA and the FFCCSOA conflict when applied to these facts, and the Appellate Division concluded that the FFCCSOA preempted the UIFSA here.

Court exceeded its authority in directing petitioner to find foster care for respondents’ cat.

            In Matter of Ruth H, --- N.Y.S.3d ----, 2018 WL 1357868, 2018 N.Y. Slip Op. 01840 (4^th Dept., 2018) the Petitioner commenced this neglect proceeding seeking, inter alia, the temporary removal of respondents’ two children from their custody. Respondents consented to the temporary removal of the children and, after a hearing pursuant to Family Court Act § 1027, Family Court determined, inter alia, that the temporary removal of the children while the neglect petition was pending was in the children’s best interests based upon respondents’ failure to provide adequate nutrition for the children and the uninhabitable condition of respondents’ home. The court also determined that petitioner failed to make reasonable efforts to prevent the removal of the children from respondents’ custody, and ordered petitioner to find a foster home for respondents’ cat. The Appellate Division reversed the finding of lack of “reasonable efforts”, and  agreed with petitioner that the court lacked the authority to order it to find a foster home for respondents’ cat. Family Court is a court of limited jurisdiction that cannot exercise powers beyond those granted to it by statute , or by the New York Constitution). Inasmuch as animals are property (see generally Mullaly v. People, 86 N.Y. 365, 368 [1881] ), and Family Court does not have jurisdiction over matters concerning personal property, it  concluded that the court exceeded its authority in directing petitioner to find foster care for respondents’ cat.

March 16, 2018

2018 Child Support Standards Chart Issued

The 2018 poverty income guidelines amount for a single person as reported by the United States Department of Health and Human Services is $12,140 and the 2018 self-support reserve is

$16,389. The combined parental income amount is $148,000. See Child Support Standards Chart LDSS 4515 (3/18),  https://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf (last accessed March 1, 2018)

Appellate Divison, Second Department

Order dismissing Custody Petition Reversed Where Right to Self-Representation Denied.

          In Matter of Aeman v Lansch, 2018 WL 1076261 (2d Dept., 2018) the Appellate Division reversed an order which denied, without a hearing, the fathers modification petitions seeking custody of the children. It noted that where a party unequivocally and timely asserts the right to self-representation, the court must conduct a searching inquiry to ensure that the waiver of the right to counsel is knowing, intelligent, and voluntary (see Matter of Kathleen K. [Steven K.], 17 N.Y.3d at 385, 929 N.Y.S.2d 535, 953 N.E.2d 773). There must be a showing that the party was aware of the dangers and disadvantages of proceeding without counsel. The Court of Appeals has stated that the better practice is to ask the party about his or her age, education, occupation, previous exposure to legal procedures, and other relevant factors bearing on a competent, intelligent, and voluntary waiver (see People v. Arroyo, 98 N.Y.2d 101, 104, 745 N.Y.S.2d 796, 772 N.E.2d 1154). The father unequivocally and timely asserted his right to represent himself in the Family Court proceedings. The Family Court engaged in a searching inquiry of the father, which revealed that he knowingly, intelligently, and voluntarily waived his right to counsel, and that it was his desire and personal choice to proceed pro se. The court properly warned him of the perils of self-representation, which he acknowledged. It found that the father was a tax attorney, and held that his relative ignorance of family law did not justify the court=s denial of his request, as mere ignorance of the law is insufficient to deprive one of the right to self-representation Further, the court=s belief that counsel for the father would be helpful in these matters was an insufficient reason to deprive the father of his right of

self-representation. The father did not engage in any disruptive conduct that would prevent the fair and orderly exposition of the issues. Accordingly, the Family Court should not have deprived the father of his right to self-representation.  In light of the court=s unreasonable refusal to honor the father=s right to self-representation, which was accompanied by increasing intolerance towards the father, it remitted the matters to a different judge for a new hearing.

 

Second Department Holds DRL ' 236(B)(2)(b) and 22 NYCRR ' 202.16Ba, in tandem (automatic orders), constitute unequivocal mandates of the court for purposes of contempt. But Contempt not available after entry of judgment.

 In Spencer v Spencer, --- N.Y.S.3d ----, 2018 WL 1075362, 2018 N.Y. Slip Op. 01348 (2d Dept, 2018) the Appellate Division, Second Department reversed an order which held the former husband in contempt. It held, as a matter of first impression that the provisions of Domestic Relations Law ' 236(B)(2)(b) and Uniform Rules for Trial Courts (22 NYCRR) ' 202.16Ba, in tandem (automatic orders), constitute unequivocal mandates of the court for the purposes of holding a party in civil contempt pursuant to Judiciary Law ' 753. It also held that civil contempt is not an available remedy for a violation of the automatic orders when that civil contempt is sought after entry of a judgment of divorce. 

After the judgment of divorce had been entered, the plaintiff learned that, while the trial was pending, defendant sold a warehouse in Brooklyn, which was a marital asset (Property), without her consent and without the consent of the Supreme Court during the pendency of the action. Domestic Relations Law ' 236(B)(2)(b) and 22 NYCRR 202.16Ba which virtually mirror each other, precludes either of the parties in a matrimonial action from transferring or in any way disposing of marital assets such as the Property without the written consent of the other party or order of the court, except under certain circumstances not applicable to this case (see Domestic Relations Law ' 236[B][2][b]; 22 NYCRR 202.16Ba). The automatic orders are binding upon a plaintiff upon commencement of the matrimonial action and upon a defendant upon service of the summons or summons and complaint (see Domestic Relations Law ' 236[B][2][b]).

           Although the judgment of divorce had already been entered, plaintiff filed an order to show cause seeking, inter alia, pursuant to Judiciary Law ' 753, a finding of civil contempt against the defendant. Supreme Court then held a hearing during which the defendant admitted that he sold the Property for $1.6 million during the pendency of the divorce trial and after paying the mortgage and other encumbrances on the Property, he received proceeds from the sale in the amount of $300,000, which he spent paying debts that he owed.  Supreme Court held the defendant in civil contempt, finding the defendant=s sale of the Property in violation of the automatic orders and his expenditure of the proceeds for his own benefit defeated, impaired, impeded, or prejudiced the rights of the plaintiff. The court directed that, unless the defendant purged the contempt by paying $150,000 to the plaintiff on or before December 16, 2016, the defendant would be incarcerated every weekend for a period of six months.

 

The Appellate Division held that the legislative history of Domestic Relations Law ' 236(B)(2)(b) supported the conclusion that the automatic orders constitute unequivocal mandates of the court. It rejected defendant=s contention that Domestic Relations Law ' 236(B)(2)(b) constitute a legislative, not a court, mandate for the reason that it is contrary to the express language of 22 NYCRR 202.16Ba, against public policy, and without merit. Notwithstanding the foregoing, it found that where a judgment of divorce has already been entered, the remedy of civil contempt is not available for a violation of the automatic orders after the judgment of divorce has been entered. The automatic orders are temporary and exist only Ain full force and effect@ during the pendency of the action until Aterminated, modified or amended by further order of the court or upon written agreement between the parties@ (22 NYCRR 202.16Ba[b]). Upon entry of a judgment of divorce, the purpose of the automatic orders ends, and, when the life of the automatic orders thus expires, the statutory remedies for their enforcement fall at the same time (see Mittman v. Mittman, 263 App.Div. 384, 385, 33 N.Y.S.2d 211). Here, after the judgment of divorce was entered, the automatic orders ceased to exist for the purposes of enforcement (see 22 NYCRRR 202.16Ba). The Court noted that the unavailability of civil contempt as a remedy to enforce the terms of the automatic orders after the entry of the judgment of divorce did not render this plaintiff without available remedies. For example, vacatur of the judgment of divorce based on newly discovered evidence, a civil contempt motion for a violation of the judgment of divorce, a proceeding to enforce the terms of the judgment of divorce or to obtain an order directing the payment of 50% of the value of the Property which was awarded to the plaintiff in the judgment of divorce, or amendment of the judgment of divorce are all remedies that the plaintiff could have sought.

A Court Must Determine Whether A Proposed Adoption Is in The Best Interests of The Child and Should Consider All the Relevant Factors.

In Matter of Isabella, 2018 WL 1075864 (Mem), 2018 N.Y. Slip Op. 01309 (2d Dept., 2018) the petitioner, who has been the legal guardian of Isabella, since 2011, filed a petition to adopt her in 2015. Her father consented to the adoption and following a hearing, the Family Court found that the consent of Isabella=s mother was not required because she had abandoned the child. The court dismissed the petition on the ground that the petitioner has a lengthy criminal record, refusing to make any further inquiry into any other factor bearing on whether the adoption would be in the child=s best interests. The Appellate Division reversed. It pointed out that a court must determine whether a proposed adoption is in the best interests of the child (see Domestic Relations Law '' 114[1]; 116[4]). The court should consider all the relevant factors. Perfection is not demanded of adoptive parents and Aeven an unacceptable record of misconduct by adoptive parents may be mitigated by evidence that the proposed adoptive child is healthy and happy and considers petitioners to be his [or her] parents. It held that Family Court erred in determining that the adoption was not in the child=s best interests based solely on the petitioner=s criminal history. The court should have received evidence and considered other factors relevant to the issue. This was particularly true since the petitioner had been appointed the child=s permanent guardian and had served in that role for over five years, which was most of the child=s life, and all of the petitioner=s convictions occurred more than 20 years before he commenced this proceeding. The matter was remitted to the Family for further proceedings on the petition, before a different judge.

Appellate Division, Third Department

Error to Award Custody Based Upon Information Provided at Family Court Appearance by Persons Not Under Oath

 In Matter of Richard T v Victoria U, --- N.Y.S.3d ----, 2018 WL 1093499, 2018 N.Y. Slip Op. 01364 (3d Dept., 2018) the Appellate Division held that Family Court erred in granting the father=s custody petition without conducting an evidentiary hearing. Custody determinations should generally be made only after a full and plenary hearing and inquiry (S.L. v. J.R., 27 N.Y.3d 558, 563, 36 N.Y.S.3d 411, 56 N.E.3d 193 [2016] A court=s final custody determination must be based on admissible evidence and not on, as relevant here, Ainformation provided at court appearances by persons not under oath@ The Family Court=s ultimate custody and visitation determination was made only after a few preliminary court appearances in which no witness gave sworn testimony or documentary evidence was received, and there was no indication that Family Court considered the various factors relative to the best interests of the children. The matter was remitted for a full hearing because Family Court Adid not possess sufficient information to render an informed determination that was consistent with the children=s best interests@

Where settlement agreement not merged into divorce judgment a postjudgment motion within the matrimonial action is not proper vehicle to challenge agreement

 

In Matula v Matula, --- N.Y.S.3d ----, 2018 WL 1093474, 2018 N.Y. Slip Op. 01365 (3d

Dept., 2018), the parties entered into a stipulated settlement agreement, and, in September 2015, a judgment of divorce was entered, which incorporated, but did not merge with, the settlement agreement. In January 2016, the husband, an attorney admitted to practice in this state, moved, inter alia, to enjoin the wife from enforcing, and challenging the validity of, certain provisions of the settlement agreement. The wife cross-moved to dismiss the husband=s motion and requested counsel fees. Supreme Court denied the husband=s requested relief and granted the wife=s application. The Appellate Division affirmed. It noted that in cases where a settlement agreement is not merged into a judgment of divorce, a postjudgment motion within the matrimonial action is not the proper vehicle for challenging or annulling the settlement agreement or the support obligations included therein.  Inasmuch as the proper vehicle for challenging the propriety of the support provisions contained in that agreement was a separate plenary action, Supreme Court properly denied the husband=s postjudgment motion. The existence of related proceedings in Family Court did not provide Supreme Court with a proper basis to entertain the husband=s attempt to invalidate the settlement agreement by postjudgment motion in Supreme Court.