Recent Decisions and Legislation January 16, 2019 to April 16, 2019

April 16, 2019

Appellate Division, Second Department

Appellate Division holds that Indian Child Welfare Act applies to Neglect Proceeding and Shinnecock Tribe had right to intervene

In Matter of Durpee M, v Samantha Q., 2019 WL 1461831 (2d Dept., 2019) the mother and her husband (father) were the parents of the child, who was born in January 2017. The father was a member of the Unkechaug Indian Nation (Unkechaug) and the Shinnecock Tribe. In February 2017, the Suffolk County Department of Social Services (DSS) filed a petition against the mother alleging that she derivatively neglected the child. When the parties appeared before the Family Court on the petition, the mother=s attorney requested that the proceeding be transferred to the Unkechaug tribal council, and a representative of the Unkechaug, who was present pursuant to the Indian Child Welfare Act of 1978 (25 USC ' 1901 et seq.; hereinafter the ICWA) (see 25 USC ' 1912[a]; cf. Matter of New York City Dept. of Social Sevs. v. Oscar C., 192 A.D.2d 280, 285, 600 N.Y.S.2d 957 [noting the tribe=s right to intervene in a child neglect proceeding]), made the same request. The only opposition to the application was interposed by the attorney for the child. Family Court granted the Unkechaug=s application and, inter alia, transferred jurisdiction over the proceeding to the Unkechaug. The Appellate Division affirmed It observed that the ICWA=s stated purpose is Ato protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families. After the passage of the ICWA in 1978, New York amended section 39 of the Social Services Law and promulgated state regulations (see 18 NYCRR 431.18) to comply with federal standards. Although the ICWA applies only to federally recognized tribes (see 25 USC ' 1903[8] ), and the Unkechaug did not appear to be so recognized, Social Services Law ' 39 and 18 NYCRR 431.18 (the New York ICWA) expand the federal definition to include recognition of A[a]ny Indian tribe designated as such by the state of New York@ (Social Services Law ' 39), and to include federally recognized tribes and tribes recognized by the State of New York or by any other state (see 18 NYCRR 431.18). The Unkechaug is so recognized by the State of New York (see Indian Law ' 151), and accordingly, the ICWA is applicable to the Unkechaug.

In order to determine where jurisdiction is properly placed, the ICWA sets out a dual jurisdictional scheme that turns on where the American Indian child resides or is domiciled (see 25 USC ' 1911). Pursuant to the ICWA, A[a]n Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law@ (25 USC ' 1911[a] ). Where, as here, the child is not domiciled on a tribal reservation, the ICWA Acreates concurrent but presumptively tribal jurisdiction@ (Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. at 36, 109 S.Ct. 1597; see 25 USC ' 1911[b]). Accordingly, in the case of children not domiciled on the reservation, on application of either the parent or the tribe, Astate‑court proceedings for foster care placement or termination of parental rights are transferred to the tribal court, except in cases of >good cause,= objection by either parent, or declination of jurisdiction@ (Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. at 36, 109 S.Ct. 1597; see Pitre v. Shenandoah, 2015 WL 667540, *4, 2015 U.S. Dist. LEXIS 18604, *12 [N.D. N.Y., No. 5:14BCVB293], affd 633 Fed. Appx. 44 [2d Cir.]).

The Appellate Division observed that ICWA provides that Athe Indian custodian of the child and the Indian child=s tribe shall have a right to intervene at any point@ in a proceeding to which the ICWA applies (25 USC ' 1911[c]). Congress authorized the Department of the Interior, Bureau of Interior Indian Affairs (DOI), to promulgate rules and regulations Aas may be necessary to carry out the provisions of [ICWA]@ (25 USC ' 1952). The current regulations define the term Achild‑custody proceeding@ as Aany action, other than an emergency proceeding, that may culminate in@ foster‑care placement, termination of parental rights, preadoptive placement, and adoptive placement (25 CFR 23.2[11][1]). AAn action that may culminate in one of these four outcomes is considered a separate child‑custody proceeding from an action that may culminate in a different one of these four outcomes@ (25 CFR 23.2[11][2]). The DOI explained that ICWA requirements would apply to an action that may result in one of the placement outcomes, even if it ultimately does not. For example, ICWA would apply to an action where a court was considering a foster‑care placement of a child, but ultimately decided to return the child to his parents. Thus, even though the action did not result in a foster‑care placement, it may have culminated in such a placement and, therefore, should be considered a >child‑custody proceeding= under the statute@ (81 Fed Reg 38778B01 at 38799). On December 12, 2016, the DOI published Guidelines for Implementing the Indian Child Welfare Act. The 2016 Guidelines provide, among other things, that Aif a proceeding seeks to terminate the parental rights of one parent, that proceeding falls within ICWA=s definition of >child‑custody proceeding= even if the child will remain in the custody of the other parent or a step‑parent@ (2016 Guidelines [B][2] ). The 2016 Guidelines provide that A[i]f the child may be involuntarily removed from the parents or Indian custodian or the child may be involuntarily placed, then ICWA applies to the proceeding. If the parent or Indian custodian does not agree to the removal or placement, or agrees only under threat of the child=s removal, then the proceeding is involuntary@ (id.).

In addition, Social Services Law ' 39(6) provides that A[i]n any state court child custody proceeding involving the foster care placement of, or termination of parental rights to an Indian child not domiciled or residing within the reservation of the Indian child=s tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child=s tribe; provided, however, that such transfer shall be subject to declination by the tribal court of such tribe.@ The New York regulations, as amended on March 15, 2017, mirror the definition of Achild custody proceedings@ under the ICWA and the federal regulations. Any action that Amay culminate@ in, inter alia, a Afoster care placement@ or Atermination of parental rights@ triggers the ICWA and the presumptive tribal jurisdiction over the proceedings (18 NYCRR 431.18[a][4]). Here, the DSS filed a petition alleging neglect pursuant to article 10 of the Family Court Act. The stated purpose of an article 10 proceeding is Ato help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well‑being. It is designed to provide a due process of law for determining when the state, through its family court, may intervene against the wishes of a parent on behalf of a child so that his needs are properly met@ (Family Ct. Act ' 1011). Under the circumstances presented, it discerned no reason to disturb the Family Court=s transfer order. The fact that the definition of Achild custody proceedings@ under 18 NYCRR 431.18(4) was not amended to include the language Amay culminate in@ until March 2017, approximately one month after the filing of the instant petition, was of no consequence. The ICWA and the federal regulations explicitly state that Awhere applicable State or other Federal law provides a higher standard of protection to the rights of the parent or Indian custodian than the protection accorded under the Act, ICWA requires the State or Federal court to apply the higher State or Federal standard@ (25 CFR 23.106; see 25 USC ' 1921). At the time the petition was filed, the term Achild‑custody proceeding@ was defined under the federal regulations as Aany action, other than an emergency proceeding, that may culminate in@ foster care placement, termination of parental rights, preadoptive placement, and adoptive placement (25 CFR 23.2[11]).

Appellate Division, Third Department

Child’s Student loan debt was held to be husbands Responsibility where incurred in pursuit of his interests.

            In Ragucci v Ragucci, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 1389161, 2019 N.Y. Slip Op. 02407 (3d Dept., 2019), following a nonjury trial Supreme Court granted the wife a judgment of divorce and concluded that the husband was solely responsible for a student loan C then roughly $ 224,000 C related to the college education of the middle child. The Appellate Division affirmed. It noted that it is well settled that trial courts are granted substantial discretion in determining what distribution of marital property B including debt B will be equitable under all the circumstances,@ taking into account the relevant statutory factors. In this regard, Aoutstanding financial obligations incurred during the marriage which are not solely the responsibility of the spouse who incurred them may be offset against the total marital assets to be divided@. Nonetheless, a financial obligation should remain a spouse=s separate liability where it is incurred by that spouse alone and in pursuit of his or her own interests. The Court found that the  the student loan debt for the child=s education was properly treated as the husband=s separate liability where, among other things,  only the husband=s personal information and signature appeared on the loan application, the husband was in charge of the family=s finances during the marriage,  the wife was unaware of the loan and  he made monthly payments on the loan starting in 2009, and later stopped making payments in April 2012 when he mistakenly believed that the child had thereafter taken responsibility for the loan repayments.

Court properly declined to exercise jurisdiction given that, at the time the mother=s proceeding was commenced, there was then‑pending custody litigation in Tribal Court.

In Matter of Kawisiiostha N., v. Arthur O., ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 1389099, 2019 N.Y. Slip Op. 02393 (3d Dept.,2019) the parents and the children, each of whom was a member of a Native American tribe, previously lived in the territory of the Pawnee Nation of Oklahoma. On December 11, 2015, after the mother moved to New York with the children, the father commenced custody proceedings in the District Court for the Pawnee Nation of Oklahoma Civil Division (Tribal Court), and the mother failed to appear. In February 2017, the Tribal Court granted the father full custody of the children. Thereafter, upon the father=s petition, Family Court issued a temporary order enforcing the Tribal Court=s order to return the children, then located in New York, to the father in the Pawnee Nation. In July 2017, the mother commenced a proceeding in Family Court, seeking sole legal and primary physical custody of the children. The mother noted in her petition that she had filed a motion to dismiss in the Tribal Court, asserting that that court lacked subject matter jurisdiction. The motion was pending before the Tribal Court at the time of commencement of this proceeding. Family Court, sua sponte, dismissed the mother=s application, on the ground that the Tribal Court had continuing, exclusive jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (see Domestic Relations Law ' 75Ban et seq. [UCCJEA]). The Appellate Division, held that Family Court properly declined to exercise jurisdiction given that, at the time the mother=s proceeding was commenced, there was then‑pending custody litigation in Tribal Court. The UCCJEA requires that tribal court custody determinations made in Asubstantial conformity@ with its provisions be afforded full faith and credit (Domestic Relations Law ' 75Bc [3]).  A New York court may not exercise jurisdiction if, at the time the New York proceeding is commenced, a custody proceeding concerning the same child has been commenced in another state having jurisdiction under the UCCJEA, unless a court in the other state terminates ... that proceeding@ (Matter of Hiles v. Hiles, 165 A.D.3d 1394, 1395, 85 N.Y.S.3d 267 [2018]; see Domestic Relations Law ' 76Be [1] ). Accordingly, Family Court properly declined to exercise jurisdiction.

No one factor is dispositive in best interest custody analysis. Custody award contingent upon enrollment in certain school had to be reversed and new hearing conducted on modification petition

            In Matter of Lionel PP v Sherry QQ,  ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 1389155, 2019 N.Y. Slip Op. 02398 (3d Dept., 2019) following a trial and a Lincoln hearing, the court, among other things, granted the father=s modification petition and awarded him physical custody of the child and permitted relocation to New York City contingent upon his enrollment in Harlem=s Children Zone, Promise Academy for the 2017B2018 school year. The Appellate Division held that by imposing such condition, the court erroneously elevated the child=s matriculation at Promise Academy from one factor to be considered in the best interest’s analysis to the sole dispositive factor. Inasmuch as no one factor is dispositive (see Matter of Perestam v. Perestam, 141 A.D.3d 757, 759, 38 N.Y.S.3d 273 [2016]), the matter had to be reversed and a new hearing to be conducted on the father=s modification petition.

 Supreme Court

Strict application of the maintenance guidelines unjust and inappropriate because of Tax Cuts and Jobs Act so as to warrant a deviation

In Wisseman v Wisseman, N.Y.S.3d ‑‑‑‑, 2019 WL 1497074, 2019 N.Y. Slip Op. 29092 2019 WL 1497074 (Supt Ct., 2019) an action for a divorce, all issues were resolved with the exception of the sum of maintenance. The parties agreed that the husband would be obligated to pay maintenance to the wife for a period of two years but were unable to agree upon the sum. The parties= attorneys represented that the basis for the inability to agree was the change in the tax law effective this year pursuant to which maintenance is no longer tax deductible to the payor spouse, in this case, the husband, and no longer includable as taxable income to the payee spouse, in this case, the wife. The husband=s argued that he should pay less maintenance since he cannot deduct the maintenance payment from his taxable income. The parties agreed that the husband=s federal tax rate was 22%. He claimed that an award of maintenance calculated by strict application of the maintenance statue (Domestic Relations Law ' 236B (6)) would be unjust and inappropriate and that his statutory calculation should be reduced by 22%. The parties agreed that the wife=s federal tax rate was 12%. She argued that strict application of the statutory formula was mandated, and that reduction of her award by 22% would result in even less of a net payment to her than would have resulted if she had to claim the maintenance as taxable income. The court held that based upon the relevant factors, strict application of the maintenance guidelines would be unjust and inappropriate so as to warrant a deviation. It directed that the husband pay maintenance to the wife of $ 451.04 per month. The statutory award was reduced by 12%, the net result of which is application of the guidelines as intended by the New York State Legislature prior to the federal change in the relevant tax law, impacted only by a reduction concomitant with the wife=s tax bracket and what she would have been obligated to include as taxable income.

Family Court

Family Court holds Interstate Compact on the Placement of Children does not apply to release by the Court of non-remanded children to out‑of‑state nonrespondent parents who live outside of New York

 In Matter of Solai J., v. Kadesha J.,  ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 1499348, 2019 N.Y. Slip Op. 29093 , (Fam Ct., 2019) Family Court held that the  Interstate Compact on the Placement of Children (AICPC@) does not apply to release by the Court of non-remanded children to out‑of‑state nonrespondent parents who live outside of New York.  Article II of the ICPC defines APlacement@ in pertinent part as Athe arrangement for the care of a child in a family free or boarding home or in a child‑caring agency or institution ....@ By its terms, the ICPC applies only to Aplacement@ of children in foster care, not a release of a child to his or her nonrespondent parent. The Court noted that while there are a number of appellate court decisions which uphold the application of the ICPC to a nonrespondent out‑of‑state parent or relative (see, e.g., Matter of Shaida W., 85 N.Y.2d 453, 459‑60, 626 N.Y.S.2d 35, 649 N.E.2d 1179 [1995]; Matter of Tumari W. v. Lynell W., 65 A.D.3d 1357, 1359, 885 N.Y.S.2d 753 [2d Dept. 2009]; Matter of Alexus M. v. Jennelle F., 91 A.D.3d 648, 650, 937 N.Y.S.2d 257 [2d Dept. 2012]; Matter of Faison v. Capozello, 50 AD3d 797, 856 N.Y.S.2d 179 [2d Dept. 2008]; In re Kenu Blue R., 292 A.D.2d 614, 740 N.Y.S.2d 98 [2d Dept. 2002]; Matter of Melinda D., 31 A.D.3d 24, 815 N.Y.S.2d 644 [2d Dept. 2006] ), in each of those cases the child or children had been remanded to the care and custody of the child welfare agency before the out‑of‑state nonrespondent parent sought to have the child released to his or her care. The child welfare agency had assumed the legal responsibility for the child or children and it was that welfare entity which was operating as the Asending@ agent. The ICPC was held to apply because the child was in the care and custody of the state (see Shaida W., 85 N.Y.2d at 460, 626 N.Y.S.2d 35, 649 N.E.2d 1179:  AThe official custodian of these children was petitioner, Department of Social Services of New York City. It authorized the children to be Asent,@ as that statutory word of art is used, to California with their grandmother. New York=s Department of Social Services alone is the Asending agency@ within the meaning of the statute. When the children relocated to California, they were in the Acustody@ of the New York City Department of Social Services pursuant to a Family Court order .... The Department of Social Services was the agency that was still responsible for their care, and it authorized the transfer in cooperation with San Diego officials. The Department of Social Services, therefore, Asent@ the children to California with their grandmother, as New York foster children, to be supervised by the San Diego Department of Social Services child welfare authorities.... Once the State takes custody of the subject child, the State is responsible for the child=s care and safety, and it is at that point that the ICPC is triggered. Thereafter, if ACS, as the agent for New York (the sending state), seeks to transfer the child to an individual in another state (the receiving state) the ICPC and its requirements are implicated. If a child is not remanded to ACS ‑‑ Aplaced@ by ACS in foster care ‑‑ but, rather, is released by the court to the out‑of‑state nonrespondent parent, the ICPC does not apply. The Court was not aware of any case in which the ICPC was held to apply to the release of a child, who had not been remanded to state custody, to an out‑of‑state, nonrespondent parent.

April 1, 2019

Appellate Division, First Department

Appellate Division rejects argument that distributive awards as low as 5% are only for spouses who commit heinous domestic violence

In Larowitz v Lebetkin, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 1338331, 2019 N.Y. Slip Op. 02273 (1^st Dept., 2019) the judgment of divorce, inter alia, valued the marital residence at $ 1.6 million, awarded defendant husband 5% of the appreciation in value of the marital residence, and deemed plaintiff wife=s Merrill Lynch account separate property was affirmed. The Appellate Division rejected Defendants argument that his contributions to the value of the property at 74 Grand Street should be deemed contributions to the appreciation on the marital residence because funds realized from the property were used to pay special assessments charged for capital improvements to the building in which the marital residence was located and these improvements enhanced the value of the residence. It held that cases such as Price v. Price, 69 N.Y.2d 8, 511 N.Y.S.2d 219, 503 N.E.2d 684 [1986] make it clear that a spouse should be recognized and awarded for indirect contributions that were otherwise uncompensated. The Appellate Division also rejected defendant=s argument that distributive awards as low as 5% are only for spouses who commit heinous domestic violence. The equitable distribution law requires courts to distribute marital property equitably between the parties, “considering the circumstances of the case and of the respective parties” (DRL § 236[B][5][c] ). In determining an equitable disposition, courts are required to consider 13 defined factors and “any other factor which the court shall expressly find to be just and proper” ([d][14]). Moreover, 5% did not represent defendant's entire distributive award; he received 30% of two other assets and 50% of a third asset.

A motion for summary judgment may be utilized in Custody proceedings under Family Court Act article 6

In Matter of Elisa N. v. Yoav I., ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 1178745, 2019 N.Y. Slip Op. 01843 (1^st Dept., 2019) the Appellate Division affirmed an order insofar as it granted petitioner mother=s summary judgment motion and petition to modify a prior custody order, and awarded her sole custody of the children. It held that a motion for summary judgment may be utilized in proceedings under Family Court Act article 6 (see Matter of Suffolk County Dept. of Social Servs. v. James M., 83 N.Y.2d 178, [1994]). The motion should only be granted when there are no material facts disputed sufficiently to warrant a trial. The court properly determined that a full plenary hearing was not required because it possessed ample information to render an informed decision on the children=s best interests and because the father offered no proof that he was in compliance with his treatment of his mental health issue. Both parties and the attorney for the children were provided an opportunity to present their positions, and the court made the factual basis for its determination clear on the record.

Child=s testimony stricken from hearing pursuant to Family Ct Act ' 1028 may be considered in connection with a fact‑finding hearing pursuant to Family Ct Act ' 1046(a)(vi).

In Matter of Jaylyn Z., ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 1178734, 2019 N.Y. Slip Op. 01846 (1^st Dept., 2019) the Appellate Division held that a child=s testimony stricken from a hearing pursuant to Family Ct Act ' 1028 may be considered in connection with a fact‑finding hearing regarding abuse allegations, pursuant to Family Ct Act ' 1046(a)(vi). Family Ct Act ' 1046(a)(vi) sets forth, in relevant part, that Aprevious statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence,@ when corroborated, and A[t]he testimony of the child shall not be necessary to make a fact‑finding of abuse or neglect.@ Here, then 14ByearBold Ashley refused to continue with her testimony at the FCA 1028 hearing regarding her allegations of sexual abuse after she already had been cross‑examined for three days by respondent=s counsel. According to a letter from Ashley=s therapist submitted to the court, it would be detrimental for the child to return to testify. It held that the Family Court that it could rely upon Ashley=s incomplete testimony for the purposes of the subsequent fact‑finding hearing, subject to a statutory requirement of corroboration. The use of Ashley=s incomplete testimony was in accordance with the legislative intent of Family Ct Act ' 1046(a)(vi) to address Athe reluctance or inability of victims to testify@ (Matter of Nicole V., 71 N.Y.2d 112, 117 [1987]). Respondent=s arguments regarding the timing and circumstances of Ashley=s incomplete testimony only went to its weight, not admissibility.

Appellate Division, Second Department

Income properly imputed to father based upon access to and receipt of financial support from his fiancé

In  Matter Picone v. Golio, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 1141792 (Mem), 2019 N.Y. Slip Op. 01774 (2d Dept.,2019) the Appellate Division held that the Support Magistrate providently exercised her discretion in imputing an additional $ 47,600 to Golio=s earned income based upon his testimony regarding his access to and receipt of financial support from his fiancé (see Family Ct. Act ' 413[1][b][5][iv]).

Where petitioner=s mother was married to respondent=s brother and respondent was sister of petitioner=s stepfather. Parties were not related by consanguinity, and, not related by affinity.

In Rizzo v. Pravato, 2019 WL 1141778 (2d Dept.,2019) the petitioner commenced a proceeding 8 seeking, inter alia, an order of protection against the respondent. The petitioner=s mother was married to the respondent=s brother. The respondent was the sister of the petitioner=s stepfather. The Family Court dismissed the petition on the ground of lack of subject matter jurisdiction. The Appellate Division observed that for purposes of Family Court Act article 8, Amembers of the same family or household@ is defined as, inter alia, Apersons related by consanguinity or affinity,@ or Apersons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time@ (Family Ct Act ' 812[1][a], [e] ). It was undisputed that the parties were not related by consanguinity, and, it held that contrary to the petitioner=s contention, the parties were not related by affinity. (see generally Matter of Anita C. v. Johana S., 48 Misc.3d 619, 622, 13 N.Y.S.3d 795; cf. Matter of Arnold v. Arnold, 119 A.D.3d 938, 939, 989 N.Y.S.2d 879). It concluded that Family Court should not have determined, without a hearing, that the parties were not and had never been in an intimate relationship. Although Family Court Act ' 812(1)(e) expressly excludes a Acasual acquaintance@ and Aordinary fraternization between two individuals in business or social contexts@ from the definition of Aintimate relationship,@ Athe legislature left it to the courts to determine on a case‑by‑case basis what qualifies as an intimate relationship within the meaning of Family Court Act ' 812(1)(e).

Strong public policy restitution or recoupment of overpayments of child support warrants denial of motion for recoupment of 3 years overpayments

.

In Fortgang v Fortgang. 2019 WL 1272555 (2d Dept., 2019) the parties judgment of divorce which incorporated, but did not merge, a stipulation of settlement dated February 14, 2011 provided that the plaintiff would pay child support for the parties= two children and that the plaintiff=s child support obligation would decrease when the older child became emancipated and would terminate when the younger child became emancipated. In December 2013, the older child became emancipated under the terms of the stipulation, but plaintiff continued to pay child support in the full amount through an execution on his income. In November 2015, the younger child became emancipated under the terms of the stipulation, but the plaintiff continued to pay child support for several months thereafter through the execution on his income. On December 19, 2016, the plaintiff cross‑moved, for the first time, to be reimbursed for child support overpayments. The Supreme Court granted the plaintiff=s cross motion. The Appellate Division reversed. It held that there is strong public policy in this state against restitution or recoupment of the overpayment of child support. Recoupment of child support payments is only appropriate under >limited circumstances. The plaintiff failed to demonstrate the existence of any circumstances which counter this state’s strong public policy against reimbursement of child support overpayments. The plaintiff could have requested a modification of his child support obligation in accordance with the stipulation, but failed to do so.

Appellate Division, Fourth Department 

Appellate Division Holds that pursuant to Domestic Relations Law ' 248, cohabitation means Ahabitually living with another person@

In Kelly v Kelly, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 1218215, 2019 N.Y. Slip Op. 01964 (4^th Dept., 2019) pursuant to the parties= separation and property settlement agreement, which was incorporated but not merged into the judgment of divorce, plaintiff=s maintenance obligation terminated if defendant remarried or if there was Aa judicial finding of cohabitation pursuant to Domestic Relations Law ' 248.@ Supreme Court denied the application. The Appellate Division held that pursuant to Domestic Relations Law ' 248, cohabitation means Ahabitually living with another person@, but simply residing with another adult is typically not considered to be Acohabitation,@ as that term is generally understood (see generally Vega v. Papaleo, 119 A.D.3d 1139, 1139B1140, 990 N.Y.S.2d 664 [3d Dept. 2014]). While no single factor, such as residing at the same address, functioning as a single economic unit, or involvement in a romantic or sexual relationship, is determinative, the Court of Appeals found that a common element= in the various dictionary definitions of cohabitation is that they refer to people living together >in a relationship or manner resembling or suggestive of marriage= @ ( Graev v. Graev, 11 N.Y.3d 262, 272, 869 N.Y.S.2d 866, 898 N.E.2d 909 [2008] ). At the hearing, defendant and the man with whom she lived testified that they had a friendship and landlord‑tenant relationship. However, it was undisputed that defendant reconnected with the man on a dating website and moved directly into his home from her marital residence, after which they commenced a sexual relationship. They had taken multiple vacations together, including for his family reunion, and they sometimes shared a room while on those vacations. Defendant wore a diamond ring on her left hand that the man purchased. They also testified regarding their financial interdependence. For example, defendant paid varying amounts of rent to the man depending on her financial situation, and the man paid defendant for work she purportedly performed for him. Notably, defendant did not declare as income the amounts she received from the man for the work she performed, and the man did not declare those amounts as an expense. The record did not show that the sexual relationship between defendant and the man had ended. It concluded that plaintiff established by a preponderance of the evidence that defendant was engaged in a relationship or living with the man in a manner resembling or suggestive of marriage, and the court erred in denying his application.

Summary Judgment Awarding Custody Affirmed based upon Domestic Relations Law ' 240(1Bc) presumption that neither custody nor visitation with murdering parent is appropriate or in children=s best interests.

In Matter of Pajek v Feketi, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 1303778, 2019 N.Y. Slip Op. 02208 (4^th Dept., 2019) the Appellate Division affirmed an order granting the motion of the custodians of the children, for dismissal of the father=s petition seeking visitation with the children. It rejected the father=s contention that Family Court erred in granting the motion without conducting a hearing. The court is not required to conduct an evidentiary hearing where it is clear from the record that the court possesses sufficient information to render an informed determination that is consistent with the children=s best interests (Matter of Bogdan v. Bogdan, 291 A.D.2d 909, 909 [4th Dept. 2002]). At the time the petition was filed, the father was incarcerated based upon his conviction of murder in the second degree for killing the mother of the subject children. Family Court Act ' 1085 and Domestic Relations Law ' 240(1Bc) provide for the rare but unthinkable scenario whereby one parent intentionally murders another yet seeks custody or visitation of the children left behind to deal with their double tragedy. Under those statutes, there is a presumption that neither custody nor visitation with the murdering parent is appropriate or in the children=s best interests. Although the presumption is rebuttable, the statutes prevent a court from making an award of custody or visitation to the murdering parent except under certain narrow circumstances, in addition to which Athe court must still make an additional finding that visitation or custody is in the child[ren=s] best interests. Inasmuch as the father failed to set forth allegations rebutting the presumption that visitation was not in the children=s best interests, the court properly dismissed the petition.

Supreme Court

Awarding Custody to Father, Court Gives significant weight to Wife=s lack of judgment concerning social media usage.

            In G.S., v. B.S., 2019 WL 1272760 (Sup. Ct., 2019) an action for divorce the husband testified their relationship changed with the advent of social media. Wife started becoming Afriends@ with men online, which caused the steady demise of the marriage. Once Wife Agot on Facebook@ in 2015, she lost all interest in the home, the children and their marriage. She was Aobsessed@ with Facebook and constantly focused on her telephone and the internet to the detriment of her family. She sought and received a lot of attention from men online. Husband became very concerned when he discovered that the men she Amet@ were using her claims of marital discord to open Ago fund me@ accounts. Fueled by anger and jealously, Husband allowed his daughter to surreptitiously secure her mother=s Facebook password. Husband then searched Wife=s Facebook account and found pictures and text messages from men Wife was conversing with online. Husband also found sexually graphic pictures that were sent to Wife, and her responsive comments. Husband also discovered that Wife told her online associations that she was being mentally and physically abused by Husband. This prompted at least one male Facebook friend to threaten to come to the house and assault Husband in a misguided attempt to save Wife from her plight. Husband created a fake Facebook account in the phony name of ATony Gallo@ and messaged his Wife, incognito. He sent Wife romantic messages which she responded to not realizing that they originated from Husband. Husband claims he was concerned for Wife=s safety as she was meeting strangers online. However, he admitted his actions were also fueled by jealously. After surreptitiously interacting with Wife online, Husband again begged Wife to stop using Facebook and to stop confiding in strangers. Wife initially indicated that she would cease using Facebook, however, she quickly returned to her account. Wife denies that she was ever romantically involved with any of the male friends she met online. However, this testimony was not credible. The Court found that the conflict and strife in this house throughout the marriage, greatly intensified after Wife began her Aobsession@ with Facebook. Husband credibly testified that Wife spent hours on her phone or computer each day engaging with strangers she met on line. She posted messages about the maltreatment and abuse she claimed she was suffering at the hands of her husband, none of which was proven at trial. In response to her postings, men previously unknown to Wife volunteered to come to the marital home and inflict harm on Husband to Asave her.@ Wife sent and responded to sexually graphic images and flirtatious comments from Facebook friends. Her social media activities were discovered by the subject child V.S. who shared them with Husband. While this Court recognizes that there are many positive benefits to the use of social media, in this case, Wife=s obsessive usage caused irreparable harm to her family. Wife=s preoccupation with Facebook and her new Afriends@ consumed the majority of her time and attention to the detriment of her children and her marriage. Moreover, her activities online were unsafe, as she gave personal information to random men who offered to Aprotect@ her, including offers to come to the children=s home to beat up their father. The subject children, and Husband, begged Wife to get off Facebook and to stop sharing the family=s personal information online. However, Wife=s obsession continued without pause. Even after Husband=s life was threatened by one of Wife=s Facebook Afriends@, Wife did not stop her excessive and inappropriate social media use. To the contrary, she continued to make online pleas for help which resulted in random men sending her financial support and gifts in various forms, including new exercise equipment.  Wife has exhibited little insight, if any, as to how her obsessive misuse of social media contributed to the end of her marriage and the breakdown of her relationship with her children. The Court gave significant weight to Wife=s lack of judgment concerning social media usage, and the lack of responsibility she assumes for the effect it has had on her family in awarding husband custody of the children.

March 16, 2019

2019 Child Support Standards Chart and New Court Forms Released

The 2019 Child Support Standards Chart was released on March 1, 2019.  The 2019 poverty income guidelines amount for a single person as reported by the United States Department of Health and Human Services is $12,490 and the 2019 self-support reserve is $16,862. The combined parental income amount remains at $148,000. See https://www.childsupport.ny.gov/dcse/child_support_standards.html (last accessed March 15, 2019); See also Child Support Standards Chart prepared by New York State Office Of Temporary And Disability Assistance,  Division Of Child Support Services, LDSS 4515 (3/19), Released: 03/01/2019 at https://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf (last accessed March 15, 2019)

By Administrative Order 72/19, Revised Forms for Use in Matrimonial Actions in Supreme Court were adopted effective March 1, 2019. The revisions reflect the increases as of March 1, 2019 in the Self Support Reserve to $16,861.50 and in the Poverty Income Level for a single person to $12,490 (See https://www.childsupport.ny.gov/dcse/child_support_standards.html).

See Form UD-8(2) Maintenance Guidelines Worksheet UD-8(2) Rev. 3/1/19 (ch. 269 and ch. 387, L. 2015) at https://www.nycourts.gov/LegacyPDFS/divorce/childsupport/UD-8-2-MaintenanceGuidelinesWorksheet.pdf; Form UD-8(3) Child Support Worksheet ,Form UD-8(3) Rev. 3/1/19 (ch. 269 and ch. 387, L. 2015) at https://www.nycourts.gov/LegacyPDFS/divorce/childsupport/UD-8-3-ChildSupportWorksheet.pdf; Temporary Maintenance Worksheet (for divorces started on or after 10/25/15), Temporary Maintenance Guidelines Worksheet Rev. 3/1/19 (ch. 269, L. 2015) consisting of 8 pages at http://ww2.nycourts.gov/sites/default/files/document/files/2019-02/TMG-Worksheet-%26%20APP%203.1.19.pdf; and Post-Divorce Maintenance/Child Support Worksheet, Combined Worksheet Rev. 3/1/19 (ch. 269 and ch. 387, L. 2015) at https://www.nycourts.gov/LegacyPDFS/divorce/childsupport/CombinedWorksheetAndAPP.pdf

Forms and Calculators for both Contested and Uncontested Divorces revised March 1, 2019 reflecting these changes are posted at http://ww2.nycourts.gov/divorce/MaintenanceChildSupportTools.shtml (last accessed March 15, 2019) Uncontested Divorce Forms revised March 1, 2019 reflecting these changes are also posted at http://ww2.nycourts.gov/divorce/divorce_withchildrenunder21.shtml (last accessed March 15, 2019)

Appellate Division, First Department

Appellate Division affirms in-kind distribution without formal valuations. No basis to reduce wife’s equitable distribution award merely because the parties chose to hire domestic help.

In Flom v Flom, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 1064152, 2019 N.Y. Slip Op. 01643 (1^st Dept., 2019) Supreme Court, among other things, distributed 40% of certain marital assets to defendant wife and 60% to plaintiff husband minus any withdrawals made by defendant since April 2014,  directed 40% in‑kind distribution of Flomsky LLC to defendant, declined to distribute a collateral account related to certain investments and apportioned 40% of the assets and liabilities related to those investments to defendant and 60% to plaintiff,  and awarded defendant $ 26,000 in monthly taxable maintenance for six years,

The Appellate Division held that the court improvidently exercised its discretion in distributing the marital assets 60% to plaintiff and 40% to defendant. Although there is no requirement that each marital asset be divided evenly, Awhere both spouses equally contribute to the marriage which is of long duration, a division should be made which is as equal as possible@ (Smith v. Smith, 162 A.D.2d 346, [1st Dept. 1990]). The referee divided the marital property unequally solely because defendant was not employed outside the home and the parties hired domestic help, and thus, in the referee=s view, she did not contribute equally to the marriage. It found that the referee=s determination was not supported by the record. The parties were married for 18 years and had two children. Testimony adduced at trial established that defendant was actively involved with the children, coaching their athletic teams, attending parent‑teacher conferences, and, as plaintiff testified, being Atheir mom.@ The parties enjoyed a lavish lifestyle, and the evidence indicated that defendant played a major role in managing the home, including entertaining clients and paying household expenses from the parties= joint account. The referee=s finding that there was no evidence that defendant Aever cooked a meal, dusted a table or mopped a floor@ did not support the court=s determination that she was therefore entitled to only 40% of the parties= marital assets. There was no basis to reduce equitable distribution merely because the parties chose to hire domestic help. It held that the marital property subject to distribution should be divided equally.

The Appellate Division held that the court providently exercised its discretion in apportioning liability to defendant for failed investments in Florida made during the marriage that plaintiff personally guaranteed with a collateral account. Plaintiff=s conduct in guaranteeing the loans did not absolve defendant of joint liability. Since the investments were made during the marriage for the benefit of the parties, the parties should share in the losses. It held that pursuant to the 50/50 division in equitable distribution, defendant should be apportioned 50% of the liability instead of 40%.

The Appellate Division held that the court providently exercised its discretion in ordering an in‑kind distribution of plaintiff=s interest in Flomsky LLC (Flomsky). Plaintiff=s contention that his interest in Flomsky could not be distributed because defendant failed to value the asset was unavailing in light of his proposal prior to trial to distribute Flomsky in lieu of maintenance. He also failed to explain how Flomsky differed from his other private investments, which were readily distributed without formal valuations. It held that pursuant to the 50/50 division in equitable distribution, defendant=s in‑kind distribution should be 50%.

Appellate Division, Second Department

ERISA=s anti‑alienation provisions do not prevent a valid waiver of beneficiary interests. However, the purported waiver of benefits under a pension plan must be A >explicit, voluntary and made in good faith. A QDRO only renders enforceable an already‑existing interest.

In Schatz v Feliciano- Schatz, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 1051280, 2019 N.Y. Slip Op. 01631 (2d Dept.,2019) pursuant to the amendment to the parties settlement agreement, the decedent validly waived her entitlement to the decedents retirement benefits. The amendment stated that the decedent and the defendant waived any and all claims that Ahe or she may have or may hereafter acquire or possess to share in any pension, profit‑sharing, IRA, 401(k) plan or any other retirement or deferred compensation plan established for the other party. After the decedents death plaintiffs Susan, the surviving wife, and the and administrator of husband=s estate brought an action against the first wife, inter alia, to recover damages for breach of contract and unjust enrichment, alleging, inter alia, that the plaintiffs were entitled to the decedent=s retirement benefits, as the defendant had waived her rights to the subject benefits pursuant to the amendment. The plaintiffs moved, inter alia, in effect, for summary judgment on the complaint, and the defendant cross‑moved for summary judgment dismissing the complaint. Supreme Court denied the plaintiffs= motion and granted the defendant=s motion. The Appellate Division reversed.

The Appellate Division held that although ERISA prohibits assignment or alienation of benefits while they are held by the plan administrator, ... once they are paid to the beneficiary, the funds are no longer entitled to that protection. Just as ERISA=s anti‑alienation provisions do not preempt a valid QDRO from effecting a beneficiary designation, those provisions do not prevent a valid waiver of beneficiary interests. However, the purported waiver of benefits under a pension plan must be A >explicit, voluntary and made in good faith. It agreed with the plaintiffs= contention that, the waiver language in the amendment was sufficiently explicit to effectuate a valid waiver of benefits under the subject plan. The language of the waiver requiring that payments received in contravention of the waiver be turned over to a designated beneficiary or the estate of the decedent did not violate the anti‑alienation provisions of ERISA (see 29 USC ' 1056[d][1]; Kennedy v. Plan Administrator for DuPont Sav. and Investment Plan, 555 U.S. 285, 292, 129 S.Ct. 865, 172 L.Ed.2d 662).

The Appellate Division held that plaintiffs failed to demonstrate, prima facie, that Susan was entitled to a nunc pro tunc QDRO, as she failed to demonstrate she had an existing interest in the subject pension benefits prior to the decedent=s death. While a QDRO may be obtained after the death of the plan participant (see YaleBNew Haven Hosp. v. Nicholls, 788 F.3d 79, 85 [2d Cir.] ), a QDRO only renders enforceable an already‑existing interest (Trustees of Directors Guild of AmericaBProducer Pension Benefits Plans v. Tise, 234 F.3d 415, 421 [9th Cir.]; see YaleBNew Haven Hosp. v. Nicholls, 788 F.3d at 86 n. 4 [stating that a nunc pro tunc QDRO serves Ato effectuate a previously awarded property right@]).

Family Court lacks authority to issue a sua sponte order vacating a consent order

In Matter of Schiavone, v. Mannese, --- N.Y.S.3d ----, 2019 WL 944052 (Mem), 2019 N.Y. Slip Op. 01419 (2^nd Dept., 2019) the mother filed a petition alleging that the father was in violation of a support order. Upon the father=s admission to a willful violation of the support order and upon the father=s representation that he was employed, an order of disposition was entered upon the parties= consent, finding the father to be in willful violation of the support order and committing him to a term of incarceration of five months, but suspending his commitment on the condition that he complied with the support order. Shortly after the consent order was entered, the Family Court received a telephone call, ostensibly from the father=s purported employer, informing the court that the father was not employed. The court, over the father=s objection, sua sponte issued an order vacating the consent order. The court then proceeded to a willfulness hearing, at the conclusion of which it issued a second order of disposition, finding the father to be in willful violation of the support order and directing that he be committed to the County Jail for a period of six months unless he paid the purge amount of $ 19,839.

The Appellate Division held that the Family Court lacked authority to issue the sua sponte order vacating the consent order (see CPLR 5019[a]). Moreover, the court issued the sua sponte order on the basis of unsworn statements made during a telephone call between the court and the father=s purported employer (see Matter of Commissioner of Chenango County Dept. of Social Servs. v. Bondanza, 288 A.D.2d 773, 773B774, 733 N.Y.S.2d 299). Accordingly, the sua sponte order had to be reversed, and the commitment order, which was based in part on the sua sponte order, had to be reversed as well.

Order which directs compliance with prescribed medication as a pre‑condition for future parental access or re‑application for parental access is improper

In Matter of Parris v. Wright, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 1051453, 2019 N.Y. Slip Op. 01602 (2d Dept., 2019) the Appellate Division held that an order which directs counseling and/or compliance with prescribed medication as a pre‑condition for a father=s future parental access or re‑application for parental access,  is improper, as a court may not order counseling as a condition of future parental access or re‑application for parental access.

Appellate Division, Third Department

Attorney=s failure to consult with and advise child to extent of and in manner consistent with child=s capabilities constituted ineffective assistance of counsel.

In Matter of Schenectady County Department of Social Services, v. Joshua BB., 168 A.D.3d 1244, 92 N.Y.S.3d 430, 2019 N.Y. Slip Op. 00335 (3d Dept., 2019) petitioner commenced a proceeding on behalf of Denise AA., the grandmother of the subject child (born 2012), seeking an order of filiation against respondent, the purported father. The child=s mother was not married at the time the child was born and, a year later, married her current husband. At the time that the petition was filed, the child was living with the grandmother, who was receiving public assistance benefits. Family Court ordered a genetic marker test of the child, the mother and respondent to confirm respondent=s paternity pursuant to Family Ct Act ' 532.

The Appellate Division found that the mother told Family Court that the child believed that the mother=s husband was the father. The attorney for the child (AFC) informed the court that, through discussions with the grandmother, the AFC learned that the child might also hold a belief that someone else was his father. The record did not give any indication that the AFC discussed with the child his belief as to who his father was. Beyond a few short and scattered statements, there was no substantive evidence or discussion of who had a parent-child relationship with the child and whether, due to equitable estoppel, a genetic marker test would not be in the child=s best interests. Accordingly, the Appellate Division held that Family Court did not possess adequate information to determine the child=s best interests and, as such, it erred in ordering genetic marker testing without first conducting a hearing

The Appellate Division held that the child did not receive the effective assistance of counsel. The record was bereft of evidence indicating that the AFC consulted with the child, who was from 4 to 6 years old throughout the time of this litigation. It held that a patient, careful and nuanced inquiry is not only possible, but necessary. Counsel=s failure to consult with and advise the child to the extent of and in a manner consistent with the child=s capabilities constituted a failure to meet his or her essential responsibilities as the AFC.  Inasmuch as consultation with the child and subsequent communication of the child=s position to Family Court are of the utmost importance it was clear that the child did not receive meaningful representation.

March 1, 2019

New Child Support Standards Chart Released March 1, 2019

The 2019 Child Support Standards Chart prepared by New York State Office of Temporary and Disability Assistance, Division of Child Support Services, was released on March 1, 2019.  The 2019 poverty income guidelines amount for a single person as reported by the United States Department of Health and Human Services is $12,490 and the 2019 self-support reserve is $16,862. The combined parental income amount remains at $148,000. See https://www.childsupport.ny.gov/dcse/child_support_standards.html (last accessed March 1, 2019); See also Child Support Standards Chart prepared by New York State Office of Temporary And Disability Assistance,  Division of Child Support Services, LDSS 4515 (3/19), Released: 03/01/2019 at https://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf (last accessed March 1, 2019).

Appellate Division, First Department

Appellate Division reaffirms rule that Domestic Relations Law ' 237(b) applies to custody disputes between unmarried parents

In Matter of Balber v Zealand, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 611368, 2019 N.Y. Slip Op. 01144 (1^st Dept., 2019) the Appellate Division affirmed an order which awarded respondent mother $ 35,000 in interim counsel fees; and an order that awarded her additional interim counsel fees of $ 85,000 pursuant to Domestic Relations Law ' 237(b). It held that the statute=s plain language disproved appellant father=s arguments about the statute=s inapplicability to custody disputes between unmarried parents, as it contemplates a fee award to a Aspouse@ or Aparent@ in custody proceedings either arising under Domestic Relations Law ' 240 or otherwise. Brentrup v. Culkin, 167 Misc.2d 211, 639 N.Y.S.2d 247 (Sup. Ct., N.Y. County 1996), which held that DRL ' 240 does not apply to children of unmarried parents, only highlights the wider breadth of ' 237, which covers not only ' 240 proceedings, but other custody proceedings as well. Pierot v. Pierot, 49 A.D.2d 838, 373 N.Y.S.2d 592 (1st Dept. 1975), cited by Brentrup, did not concern custody. Unlike here, it concerned parties who were once married. Moreover, as it predated the Equitable Distribution Law, it has been superceded. It noted that it and other courts have awarded counsel fees to an unmarried parent in a custody dispute on Domestic Relations Law ' 237(b) grounds. Family Court Act article 4, as the father contended is limited to support proceedings. However, the mother did not base her pendente lite application on Family Court Act ' 438.

The Appellate Division held that the $ 120,000 total award, far less than the $ 225,000 total fees requested, was well within the court=s discretion. The father conceded he was the more affluent party, and the court providently exercised its discretion so as Ato further the objectives of litigational parity@ (O=Shea v. O=Shea, 93 N.Y.2d 187, 193, 689 N.Y.S.2d 8, 711 N.E.2d 193 [1999]). It expressly took into consideration the very issues raised by the father on appeal, in awarding her only 53% of the fees she sought. The father faulted the mother for not saving more money to pay her own fees, but even if she Ahad the funds to pay her attorneys, that is not in itself a bar to an award of counsel fees@ (AnnaBSophia L. v. Paul H., 52 A.D.3d 313, 315, 860 N.Y.S.2d 510 [1st Dept. 2008]). It held that an evidentiary hearing was not required before making these interim awards (Brookelyn M., 161 A.D.3d at 663, 77 N.Y.S.3d 390).

 

Appellate Division, Second Department

           

Appellate Division holds that although parties previously stipulated New York would retain jurisdiction, a prior agreement is merely one factor for court to consider in determining whether it is a convenient forum

In Matter of Veen v Golovanoff, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 576085, 2019 N.Y. Slip Op. 01080 (2d Dept., 2019) pursuant to, inter alia, an order of the Family Court dated November 9, 2010, the mother had sole physical custody of the children. In August 2011, the mother moved to California with the children, with the father=s permission. In September 2013, the mother and the children moved to the State of Washington. In July 2017, the father filed a petition in Family Court to enforce his parental access rights pursuant to the November 2010 order. In November 2017, the mother filed a petition in the Superior Court, State of Washington to modify the father=s parental access rights. After conferring with the Washington court, and hearing the arguments of the parties, the Family Court, pursuant to Domestic Relations Law 5BA, inter alia, relinquished jurisdiction over the father=s proceeding to the Washington court, and, in effect, denied the father=s petition and dismissed the proceeding. The Appellate Division affirmed. It noted that pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, a court in this state which has made an initial custody determination has exclusive continuing jurisdiction over that determination until it finds, as is relevant here, that it should relinquish jurisdiction because the child does not have a >significant connection= with New York, and >substantial evidence is no longer available in this state concerning the child=s care, protection, training, and personal relationships. (Domestic Relations Law ' 76Ba [1][a]). Domestic Relations Law ' 76Bf (1) provides that a New York Court that has jurisdiction to make a child custody determination may decline to exercise its jurisdiction if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. Domestic Relations Law ' 76Bf(2) sets out factors by which the court shall determine whether it is an inconvenient forum, including, among others, as is relevant here, the length of time that the subject children resided outside of New York, the distance that the parties must travel, the relative financial circumstances of the parents, the nature and location of the evidence, the ability of the courts to decide the issue expeditiously, and the familiarity of the courts with the facts and issues of the case. AParticularly relevant@ to the analysis is the nature and location of evidence (Greenfield v. Grenfield, 115 A.D.3d 645, 645, 981 N.Y.S.2d 150). It agreed with the Family Court=s determination declining to exercise jurisdiction on the ground that the Washington court was the more appropriate forum to address the father=s petition. Although the parties previously stipulated that the court in New York would retain jurisdiction, a prior agreement is merely one factor for the court to consider in determining whether it is a convenient forum (see Domestic Relations Law ' 76Bf [2][e]). However, the children had not had a significant connection to New York since 2011, and, since 2013, the substantial, relevant evidence pertaining to the children=s care, protection, training, and personal relationships was in Washington, not New York. The Washington court thus had greater access to evidence and witnesses pertaining to the children=s best interests, and the mother, the monied party, was willing to pay for the father to travel to Washington for a parental evaluation (see Domestic Relations Law ' 76Bf [2][d]).

Clients subsequent decision to waive attorney=s fees and to discharge law firm did not preclude law firm from collecting fees that it incurred before it was discharged, by contempt proceeding, so long as it was discharged without cause

In Rhodes v Rhodes, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 575631, 2019 N.Y. Slip Op. 01113 (2d Dept., 2019) in  an order dated August 25, 2015 the Supreme Court, in effect, awarded Plaintiff  $ 20,000 in attorney=s fees and costs Afor the prosecution of the appeal, with leave to apply for additional sums upon the completion of the appeal.@ The defendant was to pay those attorney=s fees and costs to the plaintiff=s then‑attorney, the nonparty, Karyn A. Villar, PLLC  within 20 days of the order. On September 23, 2015, the Villar firm moved to hold the defendant in civil contempt of the August 2015 order. The defendant cross‑moved for leave to renew his opposition to the plaintiff=s prior motion for interim appellate attorney=s fees and costs. The defendant attached to his cross motion, inter alia, a stipulation of settlement dated September 28, 2015, wherein the plaintiff and the defendant agreed that the plaintiff would waive payment of attorney=s fees and costs owed by the defendant pursuant to the August 2015 order. The plaintiff retained new counsel, and thereafter cross‑moved to impose sanctions against the Villar firm, arguing that the Villar firm=s contempt motion was punitive and an abuse of process.  Supreme Court, inter alia, denied the Villar firm=s motion to hold the defendant in civil contempt.

The Appellate Division reversed. It held that Supreme Court should have granted the Villar firm=s motion to hold the defendant in civil contempt. (ElBDehdan v. ElBDehdan, 114 A. D3d 4, 16, 978 N.Y.S.2d 239) The defendant=s proffered defenses in response to the Villar firm=s showing were without merit. The plaintiff=s subsequent decision to waive attorney=s fees and to discharge the Villar firm did not preclude the Villar firm from collecting fees that it incurred before it was discharged, so long as it was discharged without cause (see Frankel v. Frankel, 2 N.Y.3d 601, 606B607, 781 N.Y.S.2d 59, 814 N.E.2d 37). The defendant did not contend or establish in his opposition papers that the plaintiff discharged the Villar firm for cause. Furthermore, the Villar firm was not required to exhaust other enforcement remedies before seeking to hold the defendant in civil contempt (see L. 2016, ch. 365, '' 1, 2). Under the circumstances, the Supreme Court should have granted the Villar firm=s motion to hold the defendant in civil contempt.

Although the Supreme Court had awarded the Villar firm a total of $ 20,000 for the prosecution of the plaintiff=s appeal, the record demonstrated that the plaintiff discharged the Villar firm before the appeal was completed. Under the circumstances, it  remitted the matter to the Supreme Court to determine the amount of the attorney=s fees and costs that the Villar firm was owed by the defendant, taking into consideration factors such as when the plaintiff directed the Villar firm to stop working on the appeal, when the plaintiff discharged the Villar firm, Athe complexity of the issues involved, and the reasonableness of counsel=s performance and the fees under the circumstances@ (Matter of Gregory v. Gregory, 109 A.D.3d at 618, 970 N.Y.S.2d 603.

In absence of clear indication that one party was more culpable than the other, parties should share equally fees of a parenting coordinator

In R.K. v. R.G., ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 693239, 2019 N.Y. Slip Op. 01207 (2d Dept., 2019) pursuant to a judgment of annulment the mother was awarded sole legal and physical custody of the child, and the father was given parental access. Subsequently, the father moved, inter alia, to modify the custody provisions of the judgment. Following a hearing, the Supreme Court, inter alia, awarded the parents Aequal legal rights and responsibilities to the [c]hild.@ Among other things, the court directed that the father shall have parental access with the child on the first three weekends of every month. The court directed the parents to retain a parenting coordinator, and directed the mother to pay 58% of the cost of the coordinator.

The Appellate Division disagreed with the Supreme Court=s determination to direct that the father have parental access with the child on the first three weekends of every month. It held that a parenting schedule that deprives the custodial parent of any significant quality time with the child is excessive. Here, the parenting schedule awarding the father parental access with the school‑aged child, who was born in 2007, three weekends per month was excessive, as, given the respective work and school schedules of the mother and child, it effectively deprived the mother of any significant quality time with the child. Under the circumstances of this case, it found that it would be more appropriate for the father to have parental access with the child every other weekend, and one overnight per week.

The Appellate Division observed that in custody and visitation matters, a court may appoint a parenting coordinator to mediate between the parties and oversee the implementation of their court‑ordered parenting plan. In the absence of any clear indication that one party was more culpable than the other, the parties should share equally in paying the fees of the parenting coordinator@ (Raviv v. Raviv, 64 A.D.3d 638, 640, 884 N.Y.S.2d 81). Since the record contained no indication that either party was less culpable, it held that the parties should share equally the costs of the parenting coordinator.

Order of disposition reversed where Juvenile’s allocution conducted at the fact‑finding hearing was inadequate

            In Matter of Richard S,168 A.D.3d 749 (2d Dept.,2019) the appellant admitted in his allocution that he took $5 from another boy at school. The appellant stated that the boy had given the appellant=s friend a $10 bill and that the friend gave the appellant $5. The appellant=s foster care case planner was present at the allocution but was not questioned. Family Court found that the appellant committed an act which, if committed by an adult, would have constituted the crime of grand larceny in the fourth degree. In an order of disposition, the court adjudicated the appellant a juvenile delinquent and placed him in the custody of the Commissioner of Social Services.

The Appellate Division reversed finding that the allocution conducted at the fact‑finding hearing was inadequate. Although the issue was not preserved for review the Appellate Division found that this is one of the rare cases where the appellant=s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the appellant=s guilt, which falls into the narrow exception to the preservation requirement (People v. Lopez, 71 N.Y.2d 662, 666). In addition, the appellant was not required to preserve his contention that the Family Court erred in failing to obtain an allocution from the foster care case planner, since the statutory requirement of such an allocution may not be waived (see Matter of Alexander B., 126 A.D.3d 533, 534). The Court held that appellant=s allocution failed to provide the factual basis to establish that he committed an act which, if committed by an adult, would have constituted the crime of grand larceny in the fourth degree. The appellant=s allocution indicated both that he took $5 from the boy and also that the boy voluntarily gave the appellant=s friend $10, of which the appellant received half. The Family Court did not elicit any additional details concerning the incident in order to clarify how the appellant came to be in possession of the $5 such that it could be concluded that he took it from the boy=s person within the meaning of Penal Law ' 155.30(5). Thus, the court did not >elicit a sufficient factual basis to support [the appellant=s] admission=. In addition, the appellant=s admission was defective since his foster care case planner was present, but the Family Court failed to ascertain through allocution of the foster care case planner, as a person legally responsible for the appellant=s care, Athat (a) [the appellant] committed the act or acts to which he [was] entering an admission, (b) he [was] voluntarily waiving his right to a fact‑finding hearing, and (c) he [was] aware of the possible specific dispositional orders@ (Family Ct Act ' 321.3[1]. The order of disposition was reversed, the order of fact‑finding vacated, and the matter remitted to the Family Court, for further proceedings on the petition.

Appellate Division, Third Department

Conduct of father who vested daughter with authority to determine whether she wanted to visit with mother and made no efforts to Afacilitate compliance with court‑ordered visitation@ held to be contemptuous

 

In Matter of Richard GG v M. Carolyn GG, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 758522, 2019 N.Y. Slip Op. 01268 (3d Dept., 2019) the father admitted during his testimony that the daughter had not visited with the mother since February 2017, however he asserted on appeal that he never prevented the daughter from visiting, an assertion Family Court found to be unpersuasive The father vested the daughter with the authority to determine whether she wanted to visit with the mother and the father made no efforts to Afacilitate compliance with the court‑ordered visitation@ Thus, the issue of whether there was a willful violation of the custody order distilled to a credibility determination. The Appellate Division held that based on the foregoing, and according due deference to Family Court=s credibility determinations, Family Court did not abuse its discretion in finding that the father willfully violated the custody and visitation order.

February 16, 2019

Appellate Division, Second Department

Husband, who had unclean hands in connection with transfer of separate property business to wife to shield it from the IRS, was prohibited from arguing that proceeds of its sale were separate property

In Nerayoff v Rokhsar, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 362120, 2019 N.Y. Slip Op. 00607 (2d Dept., 2019) the plaintiff and the defendant were married on November 21, 2004, and had two children. On November 27, 2012, the plaintiff commenced the action for a divorce. On July 19, 2013, the defendant served the plaintiff=s attorneys with a notice of appearance demanding, inter alia, maintenance and child support. The Appellate Division observed that the evidence established that, in 2003, one year prior to the marriage, the plaintiff formed and was the sole member of Freedom Home Care, LLC, a provider of home healthcare. In 2004, the parties were married. In the summer of 2005, the plaintiff received a notice from the Internal Revenue Service indicating that he was being audited, and faced potential tax liabilities in excess of $ 6 million due to his participation in a certain security transaction in the late 1990=s. In 2005, the plaintiff transferred his entire membership interest in Freedom to the defendant. The plaintiff testified that the purpose of this transfer was to preserve assets for the family while litigation pertaining to his potential tax liabilities was ongoing. The defendant testified that the plaintiff told her that Freedom was being transferred into her name because he had a gambling problem and placing the company in her name would protect it from his impulsive gambling behavior. In 2008, Freedom, which was still in the defendant=s name, was sold for approximately $ 11 million. The proceeds from the Freedom sale were placed into a bank account in the defendant=s name. The money was used to fund the family=s living expenses and to fund various investments and business ventures, including, inter alia, Maple Ventures, LLC (hereinafter Maple), a venture capital firm of which the defendant was the sole member. In 2012, the plaintiff prevailed in his tax dispute with the IRS, lifting the cloud of the potential $ 6 million tax liability. Thereafter, the parties entered into an agreement transferring the membership interest in Maple from the defendant to the plaintiff. As relevant to the issues on appeal, one of Maple=s assets included a note payable by an entity named OS33, Inc. (hereinafter OS33), to Maple in 48 monthly installments of $ 3,000.59, commencing on January 15, 2012. Additionally, Maple loaned $ 50,000 to the defendant=s uncle, and the plaintiff testified that when the loan was repaid, he deposited the proceeds into Maple=s bank account. In April 2012, the plaintiff and a business partner applied for a provisional patent for technology used in motor‑vehicle parking, and subsequently applied for related patents. After the commencement of the action, the plaintiff assigned his interest in the patent portfolio to CloudParc, an entity that was formed after the commencement of the action. The plaintiff presented expert testimony stating that, as of November 27, 2012, the date of commencement of this action, the plaintiff=s interest in the patent portfolio was valued at $ 21,039. The defendant presented no evidence of the patent portfolio=s value.

The Supreme Court, inter alia, found that the plaintiff had unclean hands in connection with his transfer of Freedom to the defendant for the purpose of shielding it from the IRS and, was prohibited from arguing that all or a portion of the proceeds from the sale of Freedom were separate property. The court directed that the parties= holdings flowing from the sale of Freedom, in particular, Maple, and the funds in a Citigold bank account, be equally divided. The court held that the defendant was entitled to one‑half of all post‑commencement payments due from OS33 to Maple under the installment loan and, in effect, denied the defendant=s application for a credit relating to the money repaid from the Rokhsar loan. The court held that A40% of the value of the patent portfolio ... is marital property,@ but awarded the plaintiff 100% of his interest in the patent portfolio without awarding the defendant a credit for the marital portion of that asset. The court denied the defendant=s application for an award of an interest in Cloudparc, which was formed post‑commencement. The parties possessed capital loss carryovers in excess of $ 16 million that were generated by the plaintiff=s securities trading activities during the marriage. The court awarded the plaintiff 85% of the capital loss carryovers and awarded the remaining 15% to the defendant, based upon its reasoning that A[t]here is a greater likelihood that [the plaintiff=s] future capital gains will be greater than [the defendant=s].@ The court directed the parties to equally divide all interest, dividend loss carryovers, and net operating losses. The court denied the plaintiff=s request for a credit representing one‑half of the amount the defendant spent post‑commencement on a new car in excess of the amount agreed upon by the parties in a so‑ordered stipulation. For purposes of calculating maintenance and child support, the court imputed $ 210,000 in annual income to the plaintiff and $ 70,000 in annual income to the defendant. The court directed that maintenance and child support payments were retroactive to April 1, 2014, the date the defendant moved for a pendente lite award of maintenance and child support. The court denied the defendant=s application for $ 180,000 in attorneys= fees, and awarded the defendant the sum of only $ 50,000 in attorneys= fees.

The Appellate Division agreed with the Supreme Court=s determination that the entire proceeds of the sale of Freedom should be treated as a marital asset subject to equitable distribution, but held that the court improvidently exercised its discretion in equally dividing certain bank accounts representing the proceeds of the sale of Freedom, and the assets of Maple. Under the circumstances of this case, it found that 60% of those assets should be distributed to the plaintiff, and 40% of those assets should be distributed to the defendant.

The Appellate Division held that the plaintiff failed to overcome the presumption that his interest in the patent portfolio, as of the date of commencement, was entirely marital property. Thus, the Supreme Court should have determined that 100% of the plaintiff=s interest in the patent portfolio, as of the date of commencement, was marital property. It found that the defendant was entitled to a credit of $ 10,519.50, equivalent to one‑half of the value of the plaintiff=s interest in the patent portfolio as of the date of commencement. However, it agreed with the court=s denial of the defendant=s request for an award of a portion of the plaintiff=s interest in Cloudparc, which was formed after the commencement of the action.

The Appellate Division held that Supreme Court providently exercised its discretion in awarding each party one‑half of the interest, dividend loss carryovers, and net operating losses accumulated during the marriage. However, it disagreed with the court=s determination to award the plaintiff 85% of the capital loss carryovers generated by the plaintiff=s securities trading activities during the marriage and to award the remaining 15% to the defendant. It held that those losses should be equally divided (see Kim v. Schiller, 112 A.D.3d at 676, 978 N.Y.S.2d 229). In light of the holding that the court properly determined that the proceeds of Freedom were a marital asset, it rejected the plaintiff=s contention that the interest, dividend loss carryovers, net operating losses, and capital loss carryovers were, either in whole or in part, his separate property.

The Appellate Division held that Supreme Court should have awarded the plaintiff a credit for the defendant=s purchase of a new car during the pendency of the action. A[E]xpenses incurred after the commencement of a matrimonial action are the responsibility of the party who incurred them@ (Prince v. Prince, 247 A.D.2d 457, 457, 668 N.Y.S.2d 670). After the action was commenced, the parties stipulated that the defendant would deliver the parties= 2008 Range Rover to the plaintiff and purchase a replacement vehicle Acomparable to the current fair market value of the Range Rover.@ The defendant undisputedly used marital funds to purchase a new car for $ 60,000. The court accepted the plaintiff=s testimony that the 2008 Range Rover had a value of $ 25,000 and rejected the defendant=s testimony that its value was $ 35,000. Accordingly, the court should have awarded the plaintiff a credit in the sum of $ 17,500, representing one‑half of the amount of marital funds the defendant expended in excess of the amount permitted by the stipulation.

The Appellate Division held that Supreme Court should have made its award of maintenance and child support retroactive to July 19, 2013, the date on which the defendant first served the plaintiff with a demand for child support and maintenance (see Domestic Relations Law ' 236[B][7][a]) and that the defendant should have been awarded an attorneys= fee in the sum of $ 180,000.

Appellate Division, Fourth Department

Attorney for Child May participate in financial trial where issues of child support were to be determined at that trial.

In Haggerty v Haggerty, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 408799, 2019 N.Y. Slip Op. 00750 (4^th Dept., 2019) the Appellate Division rejected the plaintiff’s argument that Supreme Court erred in permitting the attorney for the child (AFC) to participate in the financial trial Aas issues of child support were to be determined at that trial.

The Appellate Division rejected Plaintiff=s argument that the court erred in conditioning her ability to claim one of the parties= two children as a dependency exemption for tax purposes on her ability to Aremain[ ] current with her child support obligation for a full calendar year.@ Given plaintiff=s prior failure to pay child support, the imposition of such a condition was not an abuse of the court=s discretion.

Supreme Court directed plaintiff to pay $14,000 to defendant=s attorney. The Appellate Division held that the award should be vacated. Under the circumstances of this case, where neither party was a Aless monied spouse@ (Domestic Relations Law ' 237[a]), and plaintiff had significantly more student loan debt than defendant, it concluded in the exercise of its discretion that the award should be vacated and that each party should be responsible for his or her own attorneys= fees.

Emergency Jurisdiction Provision of Domestic Relations Law ' 76Bc (1) (UCCJEA) applies to emergencies involving parents. Statute was enacted with the intent of, inter alia, protecting victims of domestic violence.

In Matter of Alger v Jacobs, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 408968, 2019 N.Y. Slip Op. 00766 (4^th Dept., 2019) the Appellate Division held that the court properly determined that it had temporary emergency jurisdiction over the family offense proceeding and custody proceeding filed by the mother. The Appellate Division pointed out that under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Domestic Relations Law art 5BA), section 76Bc New York courts have Atemporary emergency jurisdiction if the child is present in this state and ... it is necessary in an emergency to protect the child, a sibling or parent of the child@ (' 76Bc [1]). The child was present in New York State when the mother filed the petitions and both proceedings fit within the UCCJEA=s broad definition of child custody proceedings (see ' 75Ba [4]). The Court found that there was an emergency within the meaning of section 76Bc (1). Domestic Relations Law ' 76Bc (1) applies to emergencies involving parents. The UCCJEA specifically notes that it was enacted with the intent of, inter alia, protecting victims of domestic violence (see ' 75[2]). Section 76Bc was rephrased from A >it is necessary in an emergency to protect the child= @ to A >it is necessary in an emergency to protect the child, a sibling or parent of the child = @ (Unified Ct Sys Mem in Support, Bill Jacket, L 2001, ch 386 [emphasis added]). Thus, Athe legislative history of the [UCCJEA] made clear that the expansion of the statute to include danger to a parent is reflective of >an increased awareness and understanding of domestic violence=. The Appellate Division further held that the allegations in the petitions were sufficient to establish the requisite emergency, i.e., they alleged acts of physical violence perpetrated by the father against the mother, resulting in her hospitalization in an intensive care unit for several days. It rejected the father=s contention that there was no emergency in effect at the exact moment the mother filed the petitions. Although the father was incarcerated in Florida at the time the petition in appeal No. 2 was filed and thus posed no immediate threat to the mother=s physical safety, the mother, who had been hospitalized for several days and suffered significant injuries, including a subdural hematoma, had no knowledge regarding when the father would be released. The mother therefore relocated to New York to be with family, who could help her with the then 11BmonthBold child, and to be safe in the event the father was released.

Improper to draw negative inference against mother based on failure to testify at the hearing where she had no relevant testimony to offer

In Matter of William FG v Lisa MB, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 409049, 2019 N.Y. Slip Op. 00774 (4^th Dept.,2019) the Appellate Division reversed an order that, inter alia, granted petitioner father=s petition to modify a prior order of custody and visitation.  It held that Family Court erred in drawing a negative inference against the mother based on her failure to testify at the hearing. The mother had no relevant testimony to offer inasmuch as she had no personal knowledge of the allegations in the modification petition, i.e., the father=s completion of sex offender treatment, his compliance with the terms of his probation, his visits with the children, and his marriage to his new wife. It concluded that a negative inference against the mother was unwarranted because she did not Awithhold [] evidence in [her] possession or control that would be likely to support [her] version of the case@ (Noce v. Kaufman, 2 N.Y.2d 347, 353, 161 N.Y.S.2d 1, 141 N.E.2d 529 [1957]; see Matter of Nassau County Dept. of Social Servs. v. Denise J., 87 N.Y.2d 73, 79, 637 N.Y.S.2d 666, 661 N.E.2d 138 [1995]).

Family Court Does Not Have Jurisdiction to allow a tax deduction or exemption

In Matter of Bashir v Brunner, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 408769, 2019 N.Y. Slip Op. 00746 (4^th Dept., 2019) the Appellate Division held that the Family Court erred by, in effect, distributing half of the parties= tax refund to the father by reducing his child support obligation by that amount. The jurisdiction of Family Court is generally limited to matters pertaining to child support and custody and tax deductions or exemptions are not an element of support. The father=s entitlement to claim the children as dependents for income tax purposes is not an element of support set forth in Family Court Act article 4, and thus the court lacked jurisdiction@ to distribute the parties= tax refund.

Order of protection incident to a criminal proceeding can only be modified after modification by criminal court

In People v Smart, 2019 WL 491093 (4^th Dept., 2019) the Appellate Division observed that the  issuance of an order of protection incident to a criminal proceeding which barred all contact between defendant and his child can not be modified by a subsequent visitation order of Family Court or Supreme Court unless it is first modified or vacated by the criminal court (see Matter of Utter v. Usher, 150 A.D.3d 863, 865, 55 N.Y.S.3d 71 [2d Dept. 2017]; Matter of Samantha WW. v. Gerald XX., 107 A.D.3d 1313, 1316, 969 N.Y.S.2d 180 [3d Dept. 2013]).

February 1, 2019

Appellate Division, Second Department

Appellate Division finds no error in Decision assigning no value to MBA degree because it merely allowed husband to secure employment at a substantially similar level of compensation to what he had earned in the past.

            In Lynch v Lynch, 2019 WL 138524 (2d Dept.,2019) the parties were married on December 26, 1993. It was a second marriage for both parties. There were no children of this marriage. The action for a divorce was commenced on October 4, 2011. The Appellate Division found that defendant=s MBA degree was marital property subject to equitable distribution in this case, but affirmed the determination of the Supreme Court not to award the plaintiff a portion of its value. The value of the MBA degree is measured by the present value of the enhanced earning capacity which it affords the defendant (see O=Brien v. O=Brien, 66 N.Y.2d at 588).Where a holder of an advanced degree has already embarked on his or her career and has acquired a history of actual earnings, the theoretical valuation method, which compares the average lifetime earnings of a college graduate against the average lifetime earnings of a person holding the relevant advanced degree, must be discarded in favor of a more pragmatic and individualized analysis based on the titled spouse=s remaining professional earning potential (see McSparron v. McSparron, 87 N.Y.2d 275, 286). Actual earnings, projected over time, are a recognized proxy for the value of a person=s future earning capacity. In this case the defendant started his studies for the MBA degree at a time when he was unemployed and was seeking to improve his prospects for obtaining new employment. In calculating the defendant=s Abase line@ earnings for valuation purposes, the plaintiff=s expert, noting that the defendant was a Vice President at J.P. Morgan when the parties married, used statistical data showing the typical income expected of a Vice President in the commercial banking industry in the same geographic area, which was $197,540 per year. For the Atop line@ earnings, the expert used the defendant=s actual earnings as a Senior Vice President at Citigroup of $240,723 per year. The conclusion of the plaintiff=s expert that the differential between these Abase line@ and Atop line@ earnings reflected an actual enhancement to the defendant=s lifetime earning capacity was fundamentally flawed. The defendant did not acquire his MBA degree until May 2004. Between 1996 and 2000, the defendant=s actual earnings exceeded the Abase line@ earnings attributed to him. Thus, it agreed with the Supreme Court’s conclusion that the statistical data used by the plaintiff=s expert to establish the defendant=s Abase line@ earnings significantly understated the defendant=s pre‑MBA degree earnings capacity. Given that the defendant earned $233,562 while employed by J.P. Morgan in 1996, it could not accept the premise of the plaintiff=s expert that his income of $240,723 per year while employed by Citigroup in 2011 reflected a substantial, measurable enhancement of his lifetime earning capacity attributable to his acquisition of an MBA degree in 2004. It saw no error in the court’s conclusion that obtaining the MBA degree merely allowed the defendant to secure employment at a substantially similar level of compensation to what he had earned in the past.

The Appellate Division agreed with the Supreme Court’s determination that the defendant=s part‑time teaching position at Dowling College did not reflect an enhancement to his lifetime earning capacity by virtue of his acquisition of the MBA degree. In attempting to ascribe a value to the defendant=s enhanced earning capacity, the plaintiff=s expert compared the defendant=s income of $16,185 per year as a part‑time professor to what the expert determined to be the average earnings of men in the same geographic area with college degrees who were working comparable hours, specifically, $10,768 per year. However, as the court observed, the average earnings figure was artificially low, as the defendant consistently generated greater income than the statistical model would indicate. Under the circumstances, including that the teaching position was part‑time and provided a supplement to his regular employment, it was appropriate for the court not to value the income stream from teaching as reflecting an enhancement of his earning capacity.

Mother entitled to award of counsel fees where father withheld child support payments that he ultimately paid and did not dispute were due and owing after commencement of enforcement proceeding

In Mensch v Mensch, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 138442, 2019 N.Y. Slip Op. 00126 (2d Dept., 2019) the parties= judgment of divorce provided that the father was to pay child support to the mother. The mother filed a petition alleging that the father failed to pay $1,635 in child support from April 2017 through August 2017. Shortly after the petition was filed, the father paid the mother the amount sought in the petition. The mother moved for an award of attorney’s= fees for fees she incurred in commencing this enforcement proceeding and the Support Magistrate denied her motion. The Family Court denied her. The Appellate Division reversed and remitted for a hearing to determine the amount of the mother’s reasonable attorney’s fees. It pointed out that pursuant to Family Court Act ' 438(a), a court, in its discretion, may award reasonable attorney’s= fees in an enforcement proceeding. The denial of an award of attorney’s= fees to the mother in this case was an improvident exercise of discretion. The father paid the sum demanded for arrears in satisfying his child support obligations, but only after the mother was forced to expend attorney’s= fees to commence an enforcement proceeding. The fact that the father was engaged in a dispute over whether he should be credited for payments for cell phone expenses and college expenses paid before the entry of the parties= judgment of divorce did not authorize him to engage in self‑help by withholding child support payments that he ultimately did not dispute were due and owing. Accordingly, the mother was entitled to an award of attorney’s= fees (see Seale v. Seale, 154 A.D.3d 1190, 63 N.Y.S.3d 550).

Support Magistrate did not improvidently exercise discretion in entertaining motion for counsel fees pursuant to FCA '438(b) although mother did not serve a notice of motion

In Matter of Brady v White, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 138481, 2019 N.Y. Slip Op. 00115 the Appellate Division held that the Support Magistrate did not improvidently exercise her discretion in entertaining the mother=s motion for counsel fees pursuant to FCA '438(b). Although the mother did not serve a notice of motion on the father, the father had notice of her request, submitted opposition to the motion, and was not prejudiced by the lack of service of a notice of motion. Under these circumstances, it agreed with the Support Magistrate=s determination to entertain the mother=s motion (see Rappel v. Wincoma Homeowners Assn., 125 A.D.3d 833, 834, 4 N.Y.S.3d 276; Fugazy v. Fugazy, 44 A.D.3d 613, 614, 844 N.Y.S.2d 341).

Award of interim counsel fees reversed for failure to comply with 22 NYCRR 202.16[k][3]

In Evelyn v Evelyn, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 288240 (Mem), 2019 N.Y. Slip Op. 00421 (2d Dept., 2019) the Appellate Division reversed the award of interim counsel fees of $25,000 where the defendant=s motion was not supported with the necessary documentation, citing 22 NYCRR 202.16[k][3].

Supreme Court

Court Construes term “period of time” for purposes of Domestic Relations Law §248 as meaning a continuous uninterrupted span of time.

In S.P., v. M.P., Slip Copy, 2019 WL 348014 (Table), 2019 N.Y. Slip Op. 50118(U) (Sup Ct., 2019) the Judgment of Divorce directed Plaintiff to pay spousal maintenance to the Defendant. It provided: Payments will cease entirely upon Defendant=s 65th birthday, upon her marriage or cohabitation with another adult with whom she is romantically involved for a period of 60 days, or upon the death of the Plaintiff or Defendant@ Supreme Court observed that the trial court’s Decision did not redefine the legal term Acohabitation,@ as set forth in DRL ' 248. Accordingly, Acohabitation@ had to be construed in accordance with DRL ' 248, and the case law interpreting that statute. However, the trial court did modify the Plaintiff=s burden by adding the term Aromantically involved@ and by mandating that the cohabitation necessarily continue for a period of 60 days. The Court found Plaintiff failed to meet his burden of proving cohabitation as set forth in the Judgment of Divorce and as defined by Domestic Relations Law Section 248. See Szemansco v. Szemansco, 11 AD3d 787 (3rd Dept. 2004); See also, Zolan v. Zolan, 2 AD3d 632 (2d Dept. 2003). It also found tha the Plaintiff did not establish by a fair preponderance of the evidence that the Defendant Acohabitated@ with Mr. T. Afor a period of sixty days.@ According to the Merriam‑Webster Dictionary, of which the Court took judicial notice, a Aperiod@ is the Acompletion of a cycle, a series of events, or a single action@ or Athe interval of time required for a cyclic motion or phenomenon to complete a cycle and begin to repeat itself.@ The  Court  determined that the term Aperiod@ refers to a continuous uninterrupted span of time.