Recent Decisions and Legislation October 16, 2019

Appellate Division, Second Department

In 9-year, marriage 42-year-old wife, incapable of maintaining employment because of symptoms experienced as result of multiple sclerosis, awarded maintenance until age 67

            In Murphy v Murphy, --- N.Y.S.3d ----, 2019 WL 4656304, 2019 N.Y. Slip Op. 06780 (2d Dept.,2019) the parties were married on September 18, 2004, and had no children together. Prior to the marriage, the plaintiff was diagnosed with multiple sclerosis. On March 19, 2013, the plaintiff commenced the action for a divorce. The parties entered into a stipulation in which they resolved, inter alia, the issue of equitable distribution. At the time of trial, the plaintiff was 42 years old and the defendant was 47 years old. After the trial, the court determined, inter alia, that the plaintiff was incapable of maintaining employment because of the symptoms she experienced as a result of multiple sclerosis, and awarded the plaintiff maintenance of $10,760 per month commencing June 1, 2016, and terminating the first of the month after the plaintiff turns 67 years old. The Appellate Division affirmed. It was undisputed that the plaintiff was diagnosed with multiple sclerosis, which is a chronic and incurable autoimmune disease, as well as another autoimmune disorder, Hassimoto’s thyroiditis. At trial, the plaintiff’s evidence demonstrated that she experienced numerous symptoms as a result of multiple sclerosis and the treatment that she received for this disease, and that these symptoms interfered with her ability to work. The fact that the plaintiff wrote and self-published a book during the marriage, which took her 10 years to complete and for which she earned no income, did not warrant a different result. However, the Supreme Court should have directed that, in the event that either party dies or the plaintiff remarries during the period when the defendant is obligated to pay maintenance, that obligation terminates (see Domestic Relations Law § 236[B][1][a]).

Custody order reversed where attorney for the child failed to advise the Family Court of, much less advocate for, the position of the then 10–year–old child

            In Matter of David v LoPresti, --- N.Y.S.3d ----, 2019 WL 4849301, 2019 N.Y. Slip Op. 07066 (2d Dept.,2019) the mother and the father were divorced in 2015 and had one child, born in 2008. Pursuant to a stipulation the parties agreed to joint legal custody of the child with the mother having primary physical custody. In 2018, the mother moved to modify the stipulation so as to allow her to temporarily relocate with the child from Queens, New York, to New Orleans, Louisiana, for a period of two years, while she completed a fellowship program at Tulane University School of Medicine. Since the mother’s fellowship commenced prior to the hearing on the petition, she was constrained to move to Louisiana without the child, and the child stayed with the father in New York. Following the hearing, the Family Court, in effect, denied the mother’s petition and awarded physical custody of the child to the father and parental access to the mother. The Appellate Division reversed and remitted for a new hearing. It found that the record was insufficient to allow it to make a fully informed determination as to whether relocation was in the child’s best interests. Throughout the course of the proceedings on the petition, the attorney for the child failed to advise the Family Court of, much less advocate for, the position of the then 10–year–old child. The Rules of the Chief Judge (22 NYCRR 7.2[d]) require that, except in certain proceedings not relevant here, the attorney for the child “zealously advocate the child’s position. The Family [Court] Act identifies, as one of the primary obligations of the attorney for the child, helping the child articulate his or her position to the court” (Matter of Mark T. v. Joyanna U., 64 A.D.3d 1092, 1093, 882 N.Y.S.2d 773; see Family Ct Act § 241). Moreover, despite the fact that it was not made aware of the child’s position through the attorney for the child, the court did not meet in camera with the child to aid it in determining her best interests. Under the circumstances of this case, including that the mother was the child’s primary caregiver since birth and that the relocation was temporary, the denial of the petition absent any indication of the child’s preferences was not supported by a sound and substantial basis in the record, and the record was insufficient to enable the Court to make its own determination of the petition. Additionally, the mother was improperly prevented by the Court Attorney Referee from presenting evidence on her petition relevant to, inter alia, the mother’s reasons for seeking the move and the impact the move would have on the child economically and educationally.

            The Appellate Division also found that the mother’s petition was for permission to relocate temporarily, and the father withdrew his cross petition for physical custody. Thus, there was no request pending before the court for a permanent change of custody, nor was there a showing that such a permanent change of custody would be in the child’s best interests.

Appellate Divison rejects mother’s argument that the Family Court should not have limited her ability to cancel a scheduled visit to instances of “substantial medical reason involving the child.”

            In Matter of Liriano v Hotaki, --- N.Y.S.3d ----, 2019 WL 4849282, 2019 N.Y. Slip Op. 07071  (2d Dept.,2019) the Family Court denied in part the mothers petition to modify the custody order so as to require that the father’s parental access with the child be supervised and by conditioning the father’s right to parental access on his participation in therapy. The court also directed that the mother was “not to cancel the visit except for substantial medical reason involving the child.” The Appellate Division affirmed. It, among other things, rejected the mother’s argument that the Family Court should not have limited her ability to cancel a scheduled visit to instances of “substantial medical reason involving the child.” The Appellate Division observed that this is a fairly standard limitation (see Parenting Plan, ¶ 2.12, available at www.nycourts.gov/forms/matrimonial/ParentingPlanForm.pdf [last accessed September 12, 2019]). It held that  the court’s determination that it was in the child’s best interests to limit the mother’s ability to cancel scheduled visits to instances of “substantial medical reason involving the child” was supported by a sound and substantial basis in the record (cf. Matter of Michael R. v. Aliesha H., 155 A.D.3d 1042, 1044, 66 N.Y.S.3d 39).

Appellate Divison holds it is an improvident exercise of discretion to direct that school, religious, or extracurricular activities of the children are always to take precedence over father’s parental access

            In Matter of Cuccia-Terranova v. Terranova, 174 A.D.3d 528, 107 N.Y.S.3d 28, 2019 N.Y. Slip Op. 05401 (2d Dept., 2019) the Appellate Division held that under the circumstances of this case, it was an improvident exercise of discretion to direct that the school, religious, or extracurricular activities of the children are always to take precedence over the father’s parental access, particularly since the mother was  permitted to unilaterally determine the children’s non-school activities without prior consultation with the father, and she had asserted that the children were so busy that establishing a fixed schedule would be difficult. In this context, the provision giving primacy to other activities could result in an undue curtailment of the father’s parental access. Similarly, it was an improvident exercise of discretion to preclude make-up parental access in the event that the father, or the children, were unable to participate in scheduled parental access for good cause.