Recent Decisions and Legislation, June 15, 2019 to August 1, 2019

August 1, 2019

Recent Legislation

Unlawful dissemination or publication of an intimate image added to Family Court Act §812

Laws of 2019, Ch 109 added the crime of unlawful dissemination or publication of an intimate image to the Penal Law as § 245.15 effective September 21, 2019. It amended Family Court Act 812 to include it in the list of crimes that constitute a family offense and added it to Criminal Procedure Law 530. 11 The Civil Rights Law was amended to add new cause of action, in Civil Rights Law § 52–b titled Private right of action for unlawful dissemination or publication of an intimate image. It provides, among other things,  that any person depicted in a still or video image, regardless of whether or not the original still or video image was consensually obtained, shall have a cause of action against an individual who, for the purpose of harassing, annoying or alarming such person, disseminated or published, or threatened to disseminate or publish, such still or video image, where such image: was taken when such person had a reasonable expectation that the image would remain private; and   depicts (i) an unclothed or exposed intimate part of such person; or (ii) such person engaging in sexual conduct, as defined in subdivision ten of section 130.00 of the penal law, with another person; and was disseminated or published, or threatened to be disseminated or published, without the consent of such person.

Recent Articles of Interest

          The Special Section on Matrimonial Law in the July 29, 2019 edition of the New York Law Journal contains an article by Joel R. Brandes titled “Inchoate Rights to Marital Property.” It appears on page 55, and is also in the online edition. Click here to read the article

            “Enforcing Counsel Fee, Support and Distributive Awards by Execution of Judgment,”  by Joel R. Brandes appeared in the July 18, 2019 edition of the New York Law Journal.  Click here to read the article.  
 

            “What is the Status of  Child in a Custody Case?”  by Joel R. Brandes appeared in the July 8, 2019 edition of the New York Law Journal. Click here to read the article     

Appellate Division, First Department

Interstate Compact for the Placement of Children (ICPC), codified in Social Services Law ' 374Ba, does not apply to out‑of‑state noncustodial parents

 In Matter of Emmanuel B, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 3146376, 2019 N.Y. Slip Op. 05640 (1^st Dept., 2019) the Appellate Division held, as a matter of first impression for the Court, that  the Interstate Compact for the Placement of Children (ICPC), codified in Social Services Law ' 374Ba, does not apply to out‑of‑state noncustodial parents.

The Administration for Children=s Services (ACS) filed a petition alleging that Lynette J. (mother) had neglected two‑year‑old Emmanuel (child). The petition further alleged that the mother slapped and bit the child, and left him unsupervised for long periods of time. The child, who had been residing with the mother at a New York City Department of Social Services facility, was subsequently removed from the mother=s care and placed in the custody of ACS. ACS directly placed the child in the home of his paternal aunt. The nonparty Andrell B. (father), who resided in New Jersey, filed a petition for custody of the child. The Family Court denied custody, due to the father=s residence in New Jersey, but ordered that the father have liberal visitation with the child. The father filed an order to show cause, seeking an order to have the child immediately released into his care. According to the father, he had resided with the mother and the child for the first six months of the child=s life, and had visited the child every weekend after he and the mother separated. The parties appeared in Family Court. ACS conceded that it did not have any concern about the child residing with the father in that it had no reason to believe that the father was unfit or abusive or that he posed any imminent harm to the child. However, ACS stated that it believed that as the father resided in New Jersey, compliance with the ICPC was mandatory and any placement was predicated on ICPC approval. The Family Court denied the father=s application and issued an order remanding the care and custody of the child to the Commissioner of Social Services. The court concluded that the ICPC process had to be completed and the placement approved prior to granting the father custody as the child was in the legal custody of the Commissioner of Social Services, and subject to the continuing jurisdiction of Family Court. According to the court, the father Aas a non‑custodial, non‑resident parent, does not have custody or possession of the child as a matter of parental right@ and Arequires parental authority to be conferred on him by the state.@

The Appellate Division observed that the ICPC, codified in Social Services Law ' 374Ba, is a statutory agreement with the express purpose of fostering cooperation and communication between all 50 states so that children requiring placement in another state Ashall receive the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care@ (Social Services Law ' 374Ba, Article I). The ICPC=s provisions are to be Aliberally construed to effectuate the purposes thereof@ (Social Services Law ' 374Ba, Article X). With respect to the conditions of a child=s placement in another state, Article III of the ICPC provides as follows: A(a) No sending agency shall send ... into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this Article.... A(b) Prior to sending ... any child ... into a receiving state for placement in foster care or as a preliminary to a possible adoption, the sending agency shall furnish the appropriate public authorities in the receiving state written notice ...@ (emphasis added). The ICPC does not apply to A[t]he sending or bringing of a child into a receiving state by his parent, step‑parent, grandparent, adult brother or sister, adult uncle or aunt, or his guardian and leaving the child with any such relative or non‑agency guardian in the receiving state@ (Social Services Law ' 374Ba, Article VIII). The language explicitly limits its applicability to out‑of‑state placements in foster care or as a preliminary to a possible adoption (see Social Services Law ' 374Ba).

The Appellate Division found, based on the plain language of Article III of the ICPC, the conditions for placement were expressly aimed at placements in foster care or adoptive settings. While the ICPC makes an exception for a parent or relative who takes a child over state lines (see Social Services Law ' 374Ba, Art VIII), by limiting the purview of placement conditions in article III to foster care and adoptive situations, the ICPC clearly did not contemplate the issue, where an out‑of‑state parent is seeking custody. It noted that in 2011, the Association of Administrators of the Interstate Compact on the Placement of Children (AAICPC), the official body charged with implementing the ICPC, amended Regulation 3(2)(a) to extend the statute=s reach to include placements with out‑of‑state noncustodial parents. The Court found that Regulation 3 does not carry the force of law (see Weiss v. City of New York, 95 N.Y.2d 1, 4B5 [2000]). The First Department declined to follow the interpretation of the Second Department which held that the ICPC applies to a nonrespondent parent living outside of New York (Matter of Alexus M. v. Jenelle F., 91 AD3d at 650B51; Matter of Tumari W., 65 AD3d at 1360) , because, in its  opinion, it conflicts with the plain meaning of the statute and is in contravention of its legislative history. The order appealed from was vacated.

 Appellate Division, Second Department

Child is not aggrieved by order which does not grant or deny any relief. Mere fact that an order contains language or reasoning that a party deems adverse to its interests does not furnish >a basis for standing to take an appeal

            In Lugo v Torres, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 3046162, 2019 N.Y. Slip Op. 05523 (2d Dept., 2019) the parties were married in July 2006 and had two minor children, Liya L. and Emery L. On June 8, 2012, the plaintiff commenced this action for a divorce. Over time, the plaintiff was awarded increasing access to the parties= children. Pursuant to an interim order of custody and parental access entered August 20, 2013, the plaintiff was awarded unsupervised parental access. In a decision after trial dated December 20, 2017, the Supreme Court, inter alia, modified the interim school year parental access schedule. The court awarded the parties joint legal custody, with final decision‑making authority to the defendant, after consultation with the plaintiff and assistance from a parenting coordinator, including on the issue of the children=s enrollment in summer camp.   A judgment of divorce was entered on March 13, 2018, which incorporated the decision dated December 20, 2017. The defendant subsequently moved, inter alia, to hold the plaintiff in civil contempt for failure to comply with the judgment of divorce. The plaintiff cross‑moved, inter alia, to resettle the judgment of divorce. In an order entered July 16, 2018, the Supreme Court denied the defendant=s motion and the plaintiff=s cross motion. The plaintiff appealed from stated portions of the judgment of divorce and from part of the order entered July 16, 2018. The child Liya L. cross‑appealed from so much of the July 16, 2018 order, as re‑stated the provision, incorporated into the judgment of divorce, that the defendant had final decision‑making authority regarding that child=s summer camp.

The Appellate Division held that the cross appeal by the child Liya L. from the order entered July 16, 2018, had to be dismissed, on the ground that she was not aggrieved by that order. The portion of the order from which the child appealed did  not grant or deny any relief, and the mere fact that an order Acontains language or reasoning that a party deems adverse to its interests does not furnish >a basis for standing to take an appeal= @ (Castaldi v. 39 Winfield Assoc., LLC, 22 A.D.3d 780, 781, 803 N.Y.S.2d 716, quoting Pennsylvania Gen. Ins. Co. v. Austin Powder Co., 68 N.Y.2d 465, 472B473, 510 N.Y.S.2d 67, 502 N.E.2d 982).

Presentation of rebuttal evidence rests within the sound discretion of the court,

            In Matter of Gerner v Stalvey, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 3046099, 2019 N.Y. Slip Op. 05529 (2d Dept., 2019) the Appellate Division affirmed an order which awarded the mother custody of the party’s child and granted her permission to relocate to South Carolina. It agreed with the Supreme Court=s determination to preclude the father from presenting a rebuttal case during the hearing. It held that the presentation of rebuttal evidence rests within the sound discretion of the court, and the court=s determination in that regard should not be disturbed on appeal absent an improvident exercise of discretion (see Farrell v. Gelwan, 30 A.D.3d 563, 564, 817 N.Y.S.2d 143). Based on the father=s offer of proof to the court, the rebuttal evidence either should have been presented on his direct case, or was collateral to the issues to be decided.

Appeal by the nonparty child from order which held plaintiff in civil contempt for failure to comply with an order requiring the plaintiff to pay the defendant counsel fees dismissed as she was not aggrieved by the order appealed

In Lugo v Torres, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 3046149 (Mem), 2019 N.Y. Slip Op. 05525 (2d Dept.,2019) the plaintiff appealed, and the nonparty child Liya L. separately appealed, from an order of the Supreme Court, which held the plaintiff in civil contempt for failure to comply with an order entered April 13, 2018, requiring the plaintiff to pay the defendant counsel fees of $193,549 within 30 days of the date of the order, and directed him to be imprisoned for 30 days, as may be extended, or until he had paid the arrears owed to the defendant for counsel fees. The Appellate Division dismissed the appeal by the child as she was not aggrieved by the order appealed from (see CPLR 5511; Edgar S. v. Roman, 115 A.D.3d 931, 982 N.Y.S.2d 529). It observed that unlike matters involving, for instance, custody and parental access, where a child=s interest in the outcome of the litigation is so immediate and substantial as to be self‑evident (see Matter of Newton v. McFarlane, BBB A.D.3d BBBB, BBB N.Y.S.2d BBBB, 2019 N.Y. Slip Op. 04386). It could not discern what possible interest a young child might have in the outcome of a purely financial dispute between her parents centered around one parent=s failure to pay the other=s counsel fees.

Motion to enforce settlement agreement, incorporated but not merged into the judgment of divorce is not subject to statute of limitations applicable to breach of contract actions

            In Brewster v Anthony-Brewster, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 3046291 (Mem), 2019 N.Y. Slip Op. 05510 (2d Dept.,2019) the Appellate Division held that a motion which was to enforce so much of a settlement agreement, which was incorporated but not merged into the judgment of divorce is not subject to the statute of limitations applicable to breach of contract actions (see Denaro v. Denaro, 84 A.D.3d 1148, 924 N.Y.S.2d 453; Bayen v. Bayen, 81 A.D.3d 865, 917 N.Y.S.2d 269; Fragin v. Fragin, 80 A.D.3d 725, 916 N.Y.S.2d 783).

Not appropriate to apply the statute of limitations applicable to Aan action based upon fraud@ under CPLR 213(8) in proceeding to vacate an acknowledgment of paternity on the grounds of fraud, duress, or material mistake of fact

In Matter of Vaskovtsev v Melska, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 3044174, 2019 N.Y. Slip Op. 05551 (2d Dept.,2019) on June 21, 2007, the parties purportedly executed an acknowledgment of paternity, stating that the petitioner was the father of the child. In April 2016, the mother filed a petition for child support against the petitioner. In June 2016, the petitioner commenced a proceeding pursuant to Family Court Act ' 516Ba to vacate the acknowledgment of paternity, alleging that his signature on the acknowledgment was forged. The mother moved pursuant to CPLR 3211(a) to dismiss the petition to vacate arguing, among other things, that the proceeding was time‑barred and that the petitioner should be equitably estopped from denying paternity. The Support Magistrate denied the mother=s motion. Family Court denied the mother=s objections.

The Appellate Division agreed with the Family Court=s determination that the  proceeding was not time‑barred and that a hearing had to be held on the issue of whether the father was entitled to vacatur of the acknowledgment of paternity on the ground of fraud (see Matter of Santos Ernesto R. v. Maria S.C., 66 A.D.3d 910, 911B912, 887 N.Y.S.2d 265),  A signatory to an acknowledgment of paternity who was at least 18 years old at the time of execution may file a petition to vacate the acknowledgment within the earlier of 60 days of the date of execution or the date of a proceeding relating to the subject child in which the signatory is a party (see Family Ct. Act ' 516Ba[b][i]). Further, after the expiration of the time limit, any of the signatories to an acknowledgment of paternity may challenge the acknowledgment in court by alleging and proving fraud, duress, or material mistake of fact@ (Family Ct. Act ' 516Ba[b][iv]). The procedure for commencing a proceeding to vacate an acknowledgment of paternity was specifically set forth by the Legislature, which chose to include an exception to the 60Bday time limit to commence a proceeding where the petitioner seeks to vacate an acknowledgment of paternity on the grounds of fraud, duress, or material mistake of fact (see Family Ct. Act ' 516Ba[b][i], [iv]). Therefore, it would not be appropriate to apply the statute of limitations applicable to Aan action based upon fraud@ under CPLR 213(8).

 It also agreed with the Family Court that dismissal of the petition was not warranted at this time based upon the doctrine of equitable estoppel. Family Court should not entertain an estoppel issue untilAafter it has found a basis to permit vacatur of the acknowledgment. Consideration of the issue of whether the father should be estopped from vacating the acknowledgment was premature.

Family Court Act ' 439(e), concerning the filing of objections, does not apply a determination of a support magistrate recommending incarceration

In Matter of Garuccio v Curcio, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 3310159, 2019 N.Y. Slip Op. 05777 (2d Dept.,2019) the Appellate Division agreed with Family Court=s determination confirming the Support Magistrate=s recommendation that the father be incarcerated without holding a second hearing and before the time for him to file objections had expired. It observed that Family Court Act ' 454(3)(a) provides that if the court finds that a respondent willfully failed to obey an order of support, the court may commit the respondent to jail for a term not to exceed six months. The mother established her case of willful violation. The Family Court was not required to hold a second hearing before issuing the order. The father was given a full and fair opportunity to be heard at the hearing on his defense to the claim of willfulness. Upon the father=s failure to appear for a scheduled court date on May 1, 2018, the court did not improvidently exercise its discretion in confirming the recommendation of the Support Magistrate that the father be incarcerated (see Matter of John T. v. Olethea P., 64 A.D.3d 484, 883 N.Y.S.2d 38). Furthermore, the Family Court was under no obligation to wait until the father=s time to file objections pursuant to Family Court Act ' 439(e) had expired to confirm the Support Magistrate=s recommendation of incarceration. Thus, the determination of the Support Magistrate recommending incarceration had no force and effect until confirmed. Since a determination of a support magistrate recommending incarceration can have no force and effect until confirmed, and could never constitute a final order, the procedure under Family Court Act ' 439(e) concerning the filing of objections does not apply (see Matter of Roth v. Bowman, 245 A.D.2d 521, 666 N.Y.S.2d 695).

Appellate Division, Third Department

Appellate Divison sustains agreement provision that if either party seeks to modify the agreement, the party seeking modification must reconvey all consideration which such party had received pursuant to the agreement.

In Matter of Yerdon v Yerdon, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 3226535, 2019 N.Y. Slip Op. 05748 (3d Dept.,2019) the parties entered into a settlement agreement (hereinafter the agreement), in which the parties agreed to opt‑out of the Child Support Standards Act. They agreed that the mother would waive her right to child support from the father, in return for which the father agreed to convey his half interest in the marital residence to the mother. The agreement provided that if either party sought to modify the agreement, the party seeking modification Ashall, in advance of and as a condition precedent to the commencement of such action or proceeding, retransfer, reconvey, return, reassign and repay to the other party all assets, income, payments, or other transfers or consideration which such party had received pursuant to [the] agreement.@ This agreement was incorporated, but not merged, with a judgment of divorce entered April 15, 2016. In August 2017, the mother commenced a proceeding in Family Court to modify the child support provisions of the judgment of divorce. The father moved in the Supreme Court to compel the mother to return to him the money and the interest in the marital home that she received under the agreement. Supreme Court dismissed the mother=s petition, finding that the agreement was enforceable and the mother failed to meet the condition precedent prior to filing for modification. The Appellate Division affirmed. It rejected the mother=s contention that the agreement was unenforceable because it did not contain the language specified in Domestic Relations Law ' 236(B)(7)(d). Assuming, without deciding, that such language must be included in a settlement agreement, such infirmity would not void the entire agreement. Rather, it would serve as a ground to modify the agreement to include the relevant language.

Supreme Court

Supreme Court holds that Domestic Relations Law 170(7) is not a Acause of action@ under DRL ' 230(3), such that the durational residency requirement was reduced from two (2) years to one (1) year.

In Patty P v Jason P, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 3242691, 2019 N.Y. Slip Op. 29223 (Sup. Ct., 2019) Supreme Court dismissed the divorce action filed by the plaintiff on the grounds that the Court did not have jurisdiction over the proceeding pursuant to DRL ' 230 and CPLR 302(b). Supreme Court found that during the parties= marriage, they had five (5) matrimonial domiciles none of which were New York State. They spent six (6) years of their marriage in Oklahoma until July 2017. Defendant still resided in Oklahoma. Plaintiff contended that she left the matrimonial domicile in Oklahoma in July 2017 and moved to New York State where, she alleged, she has resided continuously ever since. Plaintiff alleged that after she left Oklahoma, she spent time in a Asafe house@ then moved to Brooklyn, New York. She filed the action in February 2019. In her Verified Complaint plaintiff alleged that she had been a resident of New York for at least two (2) years continuously immediately before the commencement of the action. The Court observed that based upon plaintiff=s filing, she would have had to have been a resident of New York State by February 6, 2017 in order to satisfy the two (2) years of continuous residence immediately before the commencement of the action. In her affidavit in opposition to defendant=s motion to dismiss, plaintiff alleged that she had been a resident of New York State for one (1) year and that DRL 170(7) is a Acause of action@ sufficient to trigger DRL ' 230(3).

Supreme Court held that Domestic Relations Law 170(7) is not a Acause of action@ and granted the motion to dismiss. It noted that in Stancil v. Stancil, 47 Misc.3d 873, 1 N.Y.S.3d 917 [Sup. Ct. 2015] the Supreme Court held that DRL ' 170(7), did not create a Acause@ under DRL ' 230(3), such that the residency requirement was reduced from two (2) years to one (1) year. The Court agreed and held that if it adopted plaintiff=s theory that the DRL '170(7) Airretrievable breakdown@ in the marital relationship was a cause of action sufficient to satisfy DRL ' 230(3) the Court would be reducing the general residency requirement to seek a divorce in New York State from two (2) years to one (1) year contrary to the legislative intent and, in effect, by judicial fiat. The legislature did not enact changes to DRL ' 230 concomitants with the enactment of the Airretrievable breakdown@ provision provided for in DRL ' 170(7). The Court could not and should not extend or modify the residency requirement established by the Legislature in the statute. The Court held that in light of her conflicting statements and lack of documentary evidence, plaintiff had not satisfied any statutory predicate of DRL ' 230. The parties= marriage did not occur in this State, this State was not a matrimonial domicile, and no cause of action occurred in New York. Plaintiff failed to establish that she had standing to commence this action for divorce under DRL ' 230.

July 16, 2019

         

Appellate Division, First Department

22 NYCRR Part 1400 may be waived

In Strauss v Strauss, 2019 WL 2619942 (1^st Dept.,2019) the Appellate Division observed that compliance with 22 NYCRR Part 1400 may be waived by the client (see Rivacoba v. Aceves, 110 A.D.3d 495, 973 N.Y.S.2d 585 [1st Dept. 2013]).

Appellate Division, Second Department

Biological father of child conceived with anonymous egg donor and born to gestational surrogate may adopt child and terminate parental rights held by surrogate

In Matter of John, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 2607522, 2019 N.Y. Slip Op. 05132 (2d Dept.,2019) the issue presented on appeal was whether the biological father of a child conceived with an anonymous egg donor and born to a gestational surrogate may adopt the child and thereby terminate any parental rights held by the gestational surrogate. The Appellate Division held that under the circumstances presented by this case, the adoption could proceed. Contrary to the determination of the Family Court, the proposed adoption was authorized by the governing statute and was consistent with the underlying legislative purposes.

The appellant was a single, gay man who, in 2012 had embryos created using his sperm and eggs from an anonymous egg donor. The egg donor relinquished all rights to the eggs and any resulting children. The appellant had some of the embryos implanted in an unpaid gestational surrogate. The remaining embryos were frozen. In 2013, twins were born. The appellant adopted them, obtaining an order of adoption from the Family Court. In 2017, a friend of his agreed to carry the remaining embryos and entered into a surrogacy agreement with the appellant. They agreed that the appellant would adopt the child from the surrogate and thereby relieve her of any responsibility for the child. A fertility clinic implanted two embryos into the gestational surrogate. One embryo was unsuccessful. The other embryo resulted in the birth of the child, John, in October 2017. John had been in the care of the appellant since leaving the hospital after his birth. The birth certificate listed the surrogate as the mother and did not list a father. The appellant filed a petition to adopt the child. The surrogate executed an extrajudicial consent, utilizing the statutorily‑mandated form, to the adoption, surrendering her parental rights (see Domestic Relations Law '' 111[1][c]; 115Bb). The surrogate also submitted affidavits in which she described the circumstances of the child=s conception and birth and averred that she voluntarily agreed to have the appellant be the sole parent of the child and that, in effect, there were no other persons who had, or claimed to have, any parentage rights with respect to the child. Family Court dismissed the adoption petition, holding, inter alia, that permitting the adoption would validate Aa patently illegal surrogacy contract@ and there was no authority for a parent to adopt his or her own biological child.

The Appellate Division held that dismissal of the adoption petition because it would validate Aa patently illegal surrogacy contract@ was plainly erroneous. New York=s present public policy is that all surrogate parenting contracts are against public policy and are void and unenforceable (see Domestic Relations Law ' 122). The agreement made by the appellant was within the statutory proscription. However, that did not end the discussion. The Legislature has restricted active measures for a one‑time violation of the expressed public policy to the imposition of civil penalties only and, even at that, only as against those involved in commercial surrogacy contracts. The only sanction against unpaid surrogacy contracts is to treat them as void and unenforceable.

The Legislature, though it declared surrogate parenting contracts to be against public policy, recognized the prospect that, notwithstanding its declaration, parties might proceed to enter into such contracts and that children would be born as the result of such contracts. Domestic Relations Law ' 124 states that, in any action or proceeding Ainvolving a dispute between the birth mother@ and one or more genetic parents or grandparents Aregarding parental rights, status or obligations with respect to a child born pursuant to a surrogate parenting contract ... the court shall not consider the birth mother=s participation in a surrogate parenting contract as adverse to her parental rights, status, or obligations@ (Domestic Relations Law ' 124[1]). This statute Asimply provides that the gestational carrier=s participation in a surrogate parenting contract should not be held against her@ where there is a dispute regarding parentage. Where, as here, there is no dispute because the genetic and gestational parents are in agreement with respect to the legal parentage of the child, the protection of the gestational mother contemplated in Domestic Relations Law '' 122 and 124 is not implicated. The Legislature also made provision for the gestational surrogate to validly terminate her parental rights to a child born of a surrogate parenting contract. The statute expressly provides that a gestational surrogate may execute Aa valid surrender or consent to the adoption@ (Domestic Relations Law ' 124[2]). Thus, it was plain that the fact that a child was born as the result of an unenforceable surrogacy agreement did not foreclose an adoption of the resulting child, upon the surrogate=s consent.

The Appellate Division held that Family Court should not have viewed the adoption petition presented by the appellant as requiring the court to validate or enforce a surrogate parenting contract. The appellant was not seeking to have the surrogate parenting contract specifically enforced or otherwise seeking a remedy for a purported breach of the contract. The contract had been performed and a child conceived and born on account of it. The court was asked only to approve an adoption which had been agreed to, by use of a statutorily‑prescribed mechanism and form, by the gestational mother, exercising her right to do so as expressly recognized by governing statute.

The Appellate Division observed that the adoption statute specifies the categories of persons who may adopt a child. It states that A[a]n adult unmarried person, an adult married couple together, ... any two unmarried adult intimate partners together,@ or a formally separated person may adopt another person (id.). (Domestic Relations Law ' 114[1]). The appellant here, as an Aadult unmarried person,@ was among those who are statutorily authorized to adopt a child. That he fit within the statutory definition was not, however, conclusive, as loyalty must be to the statute=s legislative purpose. Here, the appellant, an otherwise qualified Aadult unmarried person,@ sought to adopt a child in order to gain legal and social recognition for the parent/child relationship already existing between himself and the child. The Family Court disallowed it on the ground that there is no authority for a parent to adopt his or her biological child. The Appellate Division disagreed. The blanket prohibition, invoked by the Family Court, against legal adoption of a child by a biological parent, is not supported by either the language of the statute or its purpose. There is nothing in the text of the Domestic Relations Law which precludes a parent from adopting his or her own biological child.  Domestic Relations Law ' 110 expressly provides that A[a]n adult or minor married couple together may adopt a child of either of them born in or out of wedlock.@ Thus, the statute expressly provides that a married person may adopt his or her own child together with his or her spouse, and does not limit the couple to a second‑parent adoption.

The Appellate Division distinguished Matter of Zoe D.K., 26 A.D.3d 22, 804 N.Y.S.2d 197, which held that an unwed biological mother could not adopt her own child so as to remove the biological father from the birth certificate. As the Appellate Division, Fourth Department, viewed it, the adoption did not provide A >a means of securing the best possible home= @ for the child. The situation here was significantly different. Since the adoption statute permits adoption by an unmarried adult, an adoption which results in the child having only one legal parent is not against the language or purpose of the adoption statute. Moreover, the continuity of a fictitious family structure whereby a gestational surrogate with no genetic ties or intention to be a parent remains a legal parent is hardly consonant with a child=s best interests. Thus, under the circumstances presented, the adoption of one=s biological child from a gestational surrogate complied with the purpose of the adoption statute and should be permitted where, as in all adoption cases generally, the proposed adoption in the best interests of the child.

Direct examination of adverse party called as a witness, by leading questions, rests in the sound discretion of trial court.

In Matter of Argila v Edelman, --- N.Y.S.3d ----, 2019 WL 2843931, 2019 N.Y. Slip Op. 05398 (2d Dept., 2019) the Appellate Division held, among other things, that as a custody determination depends to a great extent upon an assessment of the character and credibility of the parties and witnesses, the character and credibility findings of the Family Court will not be disturbed unless they lack a sound and substantial basis in the record. Here, the court’s determination had a sound and substantial basis in the record, as the father established that there had been a change in circumstances, such that modification of the stipulation so as to award the parties joint legal custody was necessary to ensure the best interests of the child (see Matter of Carter v. Carter, 111 A.D.3d 715, 715, 974 N.Y.S.2d 545).

            The Appellate Division rejected the mother’s argument that Family Court improperly restricted her examination of the father as part of her direct case by refusing to permit her to use leading questions. While an adverse party who is called as a witness may be viewed as a hostile witness and direct examination may assume the nature of cross-examination by the use of leading questions, whether to permit such questions over objection is a matter which rests in the [sound discretion of the trial court. The mother already had the opportunity to cross-examine the father using leading questions when he testified as part of his own direct case. In any event, the father was “not reluctant or evasive in answering questions” mother’s counsel asked many leading questions despite the court’s ruling, and to the extent objections were sustained, the mother, on appeal, identified no instance in which she was unable to elicit necessary information without the use of leading questions. Thus, it agreed with the Family Court’s determination to deny the mother’s requests to conduct direct examination of the father through the use of leading questions.

Appellate Division, Third Department

Exclusion of testimony in custody case, as to father’s fitness as a parent, constituted denial of procedural due process

            In Matter of Liska J v Benjamin K, --- N.Y.S.3d ----, 2019 WL 2835000, 2019 N.Y. Slip Op. 05347 (3d Dept., 2019) following a trial Family Court awarded the parties joint legal custody, with the mother having primary physical custody. The father argued on appeal that he was deprived of procedural due process when Family Court excluded testimony as to his fitness as a parent. The Appellate Division noted that Family Court expressly held that because the father did not file a custody petition, it could “only take into consideration the testimony brought by the mother.” There were several instances during the trial where the court precluded testimony from the father and his witness because he did not file a petition. As a result, the father was prevented from addressing all of the relevant factors, including who should be the primary custodian and what he did to foster a relationship between the child and the mother. The father’s stepfather was precluded from testifying as to his observations of the father as a parent. The father was allowed to briefly testify as to his average day with the child at the conclusion of testimony on March 29, 2017. When testimony resumed on March 31, 2017, the court precluded further testimony as to the average day, allowed a brief statement as to inside activities and then sustained an objection as to outside activities. The Appellate Division held the court’s failure to allow the father a full and fair opportunity to present evidence, coupled with the court’s own limitations on its decision, constituted a fundamental due process error requiring reversal of Family Court’s order. Given the limited record presented, the matter was remitted to Family Court for a new hearing.

Appellate Division, Fourth Department

Enhanced retirement income after the judgment of divorce deemed marital property where husband elected upon retirement to combine service credits and collect single retirement payment from NYSLRS

In Mancuso v Graham, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 2707847, 2019 N.Y. Slip Op. 05268 (4^th Dept., 2019) the parties= stipulation, which was incorporated but not merged into their judgment of divorce, provided that plaintiff=s marital share of defendant=s pension be calculated according to the formula articulated in Majauskas v. Majauskas, 61 N.Y.2d 481, 489B491 (1984). During the marriage, defendant was employed by the New York State Department of Aviation, where he accrued pension benefits under the NYSLRS. In 2003, after the judgment of divorce, defendant was transferred to the City of Syracuse Fire Department, where he accrued benefits under the New York State Police and Fire Retirement System (Police and Fire System) until he retired in January 2017. He elected upon retirement, however, to combine his service credits and collect a single retirement payment from NYSLRS. The Appellate Division rejected defendant=s contentions that Supreme Court should have applied the Majauskas formula to only that part of the retirement benefits that he earned through the NYSLRS, and that his benefit from the Police and Fire System is an entirely separate benefit that he earned after the termination of the marriage. It is well settled that the Aportion of a pension based on years of employment during the marriage is marital property@. Therefore, along with pension rights earned during a marriage prior to a separation agreement or matrimonial action, enhanced retirement income is deemed marital property subject to equitable distribution. Here, because defendant=s final benefit included Acompensation for past service that occurred during the marriage, it constituted marital property.

The Appellate Division also held that inasmuch as the DRO properly reflected the terms of the parties= stipulation that was incorporated, but not merged, in the judgment of divorce, defendant=s motion sought a revision of the terms and provisions of the parties= stipulation. Therefore, instead of denying the motion on the merits, the court should have denied the motion on the ground that Aa motion is not the proper vehicle for challenging a [stipulation] incorporated but not merged into a divorce judgment. Rather, defendant should have commenced a plenary action seeking recission or reformation of the stipulation.

July 1, 2019

Court of Appeals

Court of Appeals hold that Marital assets are not owned by one spouse or another, and the dissolution of a marriage involving the division of marital assets does not render one ex‑spouse the creditor of another

In Pangea Capital Management, LLC v Lakian, ‑‑‑ N.E.3d ‑‑‑‑, 2019 WL 2583109

2019 WL 2583109 (2019) the  United States Court of Appeals for the Second Circuit certified the following question to the Court of Appeals: If an entered divorce judgment grants a spouse an interest in real property pursuant to Domestic Relations Law ' 236, and the spouse does not docket the divorce judgment in the county where the property is located, is the spouse=s interest subject to attachment by a subsequent judgment creditor that has docketed its judgment and seeks to execute against the property? The Court of Appeals answered the question in the negative.

 John and Andrea Lakian were married in 1977. In 2002, they purchased a home on Shelter Island, Suffolk County, for $4.5 million. Title to the property was recorded in John=s name and immediately transferred to a trust, for which John was the sole trustee and each spouse was a 50% beneficiary as tenant in common. In 2013, Andrea commenced an action for divorce. A judgment entered on June 11, 2015 incorporated by reference an agreement that settled all issues, including providing for the sale of the Shelter Island property. Under the settlement, Andrea would receive 62.5% of the proceeds plus another $75,000 and John would receive the balance.

            In 2012, Pangea Capital Management, LLC brought an action against John. Pangea voluntarily discontinued that action in favor of arbitration. The arbitrator ruled in Pangea=s favor on January 6, 2016, and Pangea subsequently brought an action in federal court to enforce the $14 million arbitral award against John. Pangea sought and obtained an order of attachment on the Shelter Island property. Several months later, John asked the Federal District Court to modify the order of attachment to permit the sale of the home. The court allowed Andrea to intervene and the parties agreed to the sale and further agreed that the proceeds, totaling over $5 million, would be deposited with the Clerk of the Court while the dispute over Pangea=s claim to the proceeds was litigated. The parties also agreed that their rights to the proceeds would constitute the Acash equivalent@ of their rights in the Shelter Island property. During this time, the Federal District Court confirmed the $14 million arbitral award against John and entered a judgment in Pangea=s favor in November 2016, which Pangea promptly docketed.

Andrea contended that, pursuant to the terms of the divorce settlement, she was entitled to 62.5% of the sale proceeds, plus $75,000. Pangea argued that, because it docketed its judgment before Andrea docketed her judgment of divorce in Suffolk County, CPLR 5203 gave Pangea priority over Andrea with respect to the Shelter Island property.

The Court of Appeals noted that CPLR 5203(a) concerns APriority and lien on docketing judgment,@ and provides, in relevant part: ANo transfer of an interest of the judgment debtor in real property, against which property a money judgment may be enforced, is effective against the judgment creditor either from the time of the docketing of the judgment with the clerk of the county in which the property is located until ten years after filing of the judgment‑roll, or from the time of the filing with such clerk of a notice of levy pursuant to an execution until the execution is returned.@

The Court of Appeals explained that under Domestic Relations Law ' 236(B)(1)(c), marital property is Aall property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held.@ Andrea had an interest in that marital property. Legal rights to specific marital property vest upon the judgment of divorce, with Ainchoate rights@ becoming Aactual ownership interests by virtue of [an] equitable distribution judgment[ ]@ (McDermott v. McDermott, 119 A.D.2d 370, 379, 507 N.Y.S.2d 390 [2d Dept. 1986]>

The Court held that  Pangea=s conception of Andrea as judgment creditor was utterly incompatible with our legislature=s dramatic revision of the Domestic Relations Law in 1980. By incorporating the concept of Amarital property@ into Domestic Relations Law ' 236, Athe New York Legislature deliberately went beyond traditional property concepts when it formulated the Equitable Distribution Law@ (O=Brien v. O=Brien, 66 N.Y.2d 576, 583, 498 N.Y.S.2d 743, 489 N.E.2d 712 [1985] ). Under that statute, both Aspouses have an equitable claim to things of value arising out of the marital relationship@  Marital property Ahardly fall[s] within the traditional property concepts because there is no common‑law property interest remotely resembling marital property@  Marital assets are not owned by one spouse or another, and the dissolution of a marriage involving the division of marital assets does not render one ex‑spouse the creditor of another.  Andrea therefore could not properly be considered a judgment creditor of John. Thus, CPLR 5203(a), by its plain terms, had no application here, and Pangea had no priority. Subsection (a) applies to transfers of the interest of a judgment debtor in real property; the equitable distribution of Andrea=s share was not the transfer of the interest of a judgment debtor to a judgment creditor. Subsection (c) concerns only the priority given to a judgment creditor as against a lien created by a petition in bankruptcy, which was irrelevant here.

The Court held that the Second Circuit's decision in Musso v. Ostashko, had no application. Musso addressed a question that was not present here:,do all the marital assets become part of the bankruptcy estate? Musso 's statement that “under New York law an equitable distribution award is a remedy, and the enforcement of that remedy is no different than the enforcement of any other judgment” was dicta, and did not accurately convey New York law because an entered judgment of divorce that distributes marital property is not like a money judgment of a judgment creditor.

The judgment of divorce was, as the Federal District Court explained, Aa final settling of accounts@ between marital partners with an equitable interest in all marital property. Because the judgment of divorce did not render Andrea a judgment creditor of John (likewise, it did not render John a judgment creditor of Andrea), Andrea was not subject to the docketing requirements of CPLR 5203.

In a footnote the Court pointed out that in some situations one spouse or ex‑spouse might be a judgment creditor as to the other. For example, one spouse may obtain a money judgment against the other spouse pursuant to Domestic Relations Law ' 244. No such circumstance was present here and, the Court had no occasion to decide whether a spouse seeking to enforce a section 244 judgment is a judgment creditor of the other spouse.

Appellate Division, First Department

Denial of post‑divorce maintenance affirmed where distributive award, would generate cash flow sufficient to render wife self‑supporting.

In Hofman v Hofman, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 2504654, 2019 N.Y. Slip Op. 04872 (1^st Dept., 2019) the Appellate Division held, inter alia,  that Defendant was entitled to 50% of plaintiff=s interest in certain shares and investments he acquired during his employment at a global investment firm, Oaktree Capital Management LLC, where he worked for almost the entire duration of the parties= 16  year marriage. The record supported the Referee=s finding that defendant made significant contributions to the marriage as a parent and homemaker, allowing plaintiff to pursue his career and amass significant wealth.

The Referee=s denial of post‑divorce maintenance to defendant was supported by the record, which showed that defendant=s distributive award, now substantially increased, would generate cash flow sufficient to render her self‑supporting.

The Appellate Division found that maintenance and child support retroactive to the commencement of the action was  not warranted (see Grumet, 37 A.D.3d at 536, 829 N.Y.S.2d 682). Defendant never moved for pendente lite support. The parties entered into two stipulations in which they agreed that each would withdraw approximately $ 2.2 million against equitable distribution to use for personal and marital expenses, and there was no evidence that either defendant=s or the children=s needs were not met.

The Appellate Division held that the Referee providently exercised his discretion in awarding defendant approximately 41% of her counsel fees, in view of her substantial distributive award and the evidence that payment of her remaining counsel fees would not affect her ability to meet her living expenses.

Appellate Division, Second Department

Additional pendente lite counsel fees should be awarded where monied spouse failed to rebut presumption that additional interim counsel fees should be awarded

In Pezzollo v Pezzollo, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 2439866, 2019 N.Y. Slip Op. 04741 (2d Dept., 2019) the parties were married in 2001, and had  two children. In September 2014, the plaintiff commenced the action for a divorce. The plaintiff was then a 49ByearBold stay‑at‑home mother. The defendant was a 61ByearBold oral surgeon, who earned $ 1.26 million in salary and partnership income from his medical practice in 2013. In March 2015, the plaintiff was awarded interim counsel fees of $ 25,000. In March 2016, the plaintiff moved to direct the defendant to pay her attorney $ 50,000 in additional interim counsel fees. The law firm thereafter moved for the defendant to pay it $ 28,379.86 in additional interim counsel fees, and to consolidate the motions. In the alternative, the law firm sought leave to withdraw as the plaintiff=s counsel in the event that all of the requested relief was not granted.  Supreme Court granted the law firm=s motion to consolidate the motions and for leave to withdraw as the plaintiff=s counsel, and otherwise denied the motions.  The Appellate Division modified. It  observed that there is a rebuttable presumption that interim counsel fees shall be awarded to the less monied spouse (see Domestic Relations Law ' 237[a] ), and courts Ashould normally exercise their discretion to grant such a request made by the nonmonied spouse, in the absence of good cause@ to deny the request (Prichep v. Prichep, 52 A.D.3d at 65). It held that considering the equities of the case and the financial circumstances of the parties, the Supreme Court should have directed the defendant to pay additional interim counsel fees to the law firm. Even taking into account the pendente lite relief awarded to the plaintiff and the defendant=s voluntary sale of his interest in his medical practice, the defendant remained the monied spouse, and he failed to rebut the presumption that additional interim counsel fees should be awarded to the plaintiff as the nonmonied spouse. It held that an award of 75% of the total combined sum requested, or $ 58,784.90, was appropriate. The Court pointed out that its analysis applied to the granting of interim counsel fees to ensure that the plaintiff Awill be able to litigate this action on equal footing@ with the defendant. A more detailed analysis of the relative financial circumstances of the parties would  be addressed after trial and any interim awards will ultimately be considered by the trial court in the context of an overall resolution of the parties= financial claims.

A determination to impute income will be rejected where the imputation was an improvident exercise of discretion.

In Matter of Fleming v McCloskey, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 2440072, 2019 N.Y. Slip Op. 04697 (2d Dept., 2019) at the hearing on the mother=s petition for child support on May 25, 2017, the father failed to provide the court with copies of any corporate tax returns or financial documents for his contracting business. He did submit an unsworn, partially completed financial disclosure affidavit which contained, inter alia, information indicating rental income of A11,100.@ That  financial disclosure form does not indicate if that amount constitutes monthly income or yearly income and the preprinted instructions on that form also fail to delineate whether the amounts set forth on the form should be set forth in monthly or yearly amounts. After the hearing, the Support Magistrate imputed income to the father of $ 149,528 per year, based in part, upon a determination that the father earned monthly rental income in the sum of $ 11,100. The Support Magistrate also noted that, in a prior child support proceeding in 2015, the father had stipulated that he had an income of $ 90,000. The Support Magistrate directed the father to pay child support based on the imputed income of $ 149,528. The father filed objections contending, inter alia, thatA11,100@ constituted yearly income, not monthly income. Family Court denied the objections. The Appellate Division observed that although the Support Magistrate is afforded considerable discretion in determining whether to impute income to a parent, such determination will be rejected where the amount imputed was not supported by the record, or the imputation was an improvident exercise of discretion. Here, the imputation of income to the father of $ 149,528 per year was an improvident exercise of discretion in that it was based, in part, on the Support Magistrate=s determination that A11,100@ was monthly income, not annual income, without any inquiry or testimony on that issue at the hearing. It was unclear as to whether the record supported the Support Magistrate=s imputation of income to the father of $ 149,528 per year. Thus, it remitted the matter to the Family Court  for a hearing on the issue of whether the father=s rental income of $ 11,100 constituted annual rental income or monthly rental income and a new determination, if necessary, of the father=s income.

A determination to impute income will be rejected where the amount imputed was not supported by the record

In Vilmont v Vilmont, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 2440052, 2019 N.Y. Slip Op. 04705 (2d Dept., 2019) the Appellate Division noted that while a Support Magistrate is afforded considerable discretion in determining whether to impute income to a parent=  a determination to impute income will be rejected where the amount imputed was not supported by the record, or the imputation was an improvident exercise of discretion. It held that the Support Magistrate=s imputation of income was not supported by the record. During a brief colloquy among the parties and the Support Magistrate, documents were submitted but neither party gave sworn testimony. When the parties were before the Support Magistrate, she made no attempt to elicit any further information. Although the Support Magistrate, in her findings of fact, found the documents submitted by the parties to be inadequate and unsubstantiated, there was no indication that the parties were advised during the course of the hearing as to the Support Magistrate=s concerns with the documents submitted nor was there any indication that the parties were afforded the opportunity to submit further documents. The matter was remitted to the Family Court for a new hearing on the petition and a new determination.

June 16, 2019

Appellate Division, First Department

Implicit Consent to Jurisdiction of Referee by Participating Without Objection

             In Vanessa R. v Christopher AE,   N.Y.S.3d    , 2019 WL 2344435, 2019 N.Y. Slip Op. 04331 (1st Dept., 2019), a family offense proceeding,  the Appellate Division rejected respondent’s argument that Family Court never obtained jurisdiction over the matter because no signed stipulation of consent to the order of reference appeared in the record. It held that Respondent implicitly consented by participating in the proceedings without challenging the Referee’s jurisdiction (see Matter of Hui C. v. Jian Xing Z., 132 AD3d 427, 427 [1st Dept 2015]).

Duration of The Pendente Lite Maintenance Was Properly Considered in Determining That Further Maintenance Was Not Warranted.

In  F.L., v. J.M., 2019 WL 2375160 (1^st Dept., 2019) Supreme Court, inter alia, valued  the marital portion of defendant husband=s stock options and restricted stock units at $ 252,974 and distributed 40% to plaintiff wife, valued the marital funds at $ 410,696.82, terminated the pendente lite maintenance award as of July 31, 2017, and declined  to award plaintiff post‑divorce maintenance, imputed income of $ 831,710 to defendant husband and imposed an income cap of $ 400,000 for the purpose of determining child support, and awarded plaintiff $ 25,000 in counsel fees.

The Appellate Division held that the court properly relied on the valuation of the marital portion of defendant=s stock options and restricted stock units (GSUs) performed by Financial Research Associates (FRA). The parties jointly retained FRA to value this marital asset, and FRA=s report was stipulated to at trial and entered into evidence without objection. Plaintiff did not call any witness from FRA or present any expert testimony to support her argument on appeal that FRA=s methodology was flawed. Moreover, the claimed patent errors in the report, such as omissions of certain stock grants, could be explained by FRA=s mandate to value only the stock options and GSUs held by defendant as of the date of the commencement of this action. The Appellate Division modified to award plaintiff 50% of the value of the marital portion of defendant=s stock options and restricted stock units,

The Appellate Division held that the court properly declined to award plaintiff post‑divorce maintenance on the grounds that she held a doctorate in computer science and was working full‑time as a data scientist. The duration of the pendente lite maintenance was one of the factors the court considered in determining that further maintenance was not warranted.

The Appellate Division held that given the disparity in the parties= incomes, the court correctly considered the standard of living the child would have enjoyed had the marriage remained intact in deviating from the statutory cap (see Domestic Relations Law ' 240[1Bb] [f][3]). However, as the court also ordered defendant to pay his 88% pro rata share of add‑on expenses, including extracurricular activities, summer camp, and any private school, it found that the income cap should be reduced from $ 400,000 to $ 300,000.

Appellate Division, Second Department

Second Department, in apparent conflict with First and Fourth Departments, holds attorney for the child has authority to pursue appeal on behalf of child from custody order

          In Matter of Newton v  McFarlane, 2019 WL 2363541 (2d Dept., 2019) the Appellate Division, Second Department held that: (a) the attorney for the child has the authority to pursue an appeal on behalf of the child from an order determining the custody of the child; (b) the child is aggrieved, for appellate purposes, by an order determining custody.

In 2013, the Family Court awarded the father sole legal and physical custody of the parties= child, a female who was born in January 2002 and was currently 17 years old. In February 2016, after commencing two prior unsuccessful custody modification proceedings, the mother commenced a third modification proceeding seeking sole legal and physical custody of the child. The Family Court, over the objection of the attorney for the child, proceeded to hold a full custody hearing without first addressing whether the mother had alleged a sufficient change in circumstances to warrant an inquiry into whether the child=s best interests were served by the existing custodial arrangement. After the hearing, the Family Court stated its conclusion that the mother had established the existence of sufficiently changed circumstances and that awarding sole custody to the mother was in the child=s best interests. The court wholly failed to explain the bases for these conclusions in its order. The child, by her court‑appointed attorney, appealed.

The mother contended on appeal that the attorney for the child lacked Astanding@ to appeal on the child=s behalf. The Appellate Division said she was actually arguing that the attorney for the child lacked authority to take this appeal on behalf of the child. The Court observed that when an attorney is appointed by the court to represent a child in a contested custody proceeding, (specifically excluding an attorney hired by one of the parties) that attorney must be afforded the same opportunity as the attorneys for the parents and other contestants to fully participate in the proceeding. An attorney appointed to represent a child in a custody proceeding has the duty and the obligation to zealously represent the child and has the right, equal to the right of the attorneys for the litigants, to fully appear and participate in the litigation, including the right to call, examine, and cross‑examine witnesses, and the right to advance arguments on behalf of the child. These rights may be protected and enforced by the taking of an appeal on behalf of the child. The right of an attorney appointed to represent a child to take an appeal on behalf of the child is confirmed by section 1120(b) of the Family Court Act which  provides that whenever an attorney has been appointed by the Family Court to represent a child, the appointment continues without the necessity of a further court order where the attorney files a notice of appeal on behalf of the child or where one of the parties files a notice of appeal. The statute recognizes that an attorney appointed by the Family Court to represent a child has the right to pursue an appeal on behalf of the child.

The Second Department pointed out that the Fourth Department decision in Matter of McDermott v. Bale, 94 A.D.3d 1542, 943 N.Y.S.2d 708, supported its conclusion that the attorney for the child has authority to appeal on the child=s behalf. In McDermott, the attorney for the child refused to join in a settlement stipulation agreed to by the parents. The Family Court approved the stipulation over the attorney for the child=s objection, and the attorney, on behalf of the child, took an appeal from the resulting order. While the Appellate Division ruled that the attorney for the child could not unilaterally scuttle a proposed settlement by withholding consent, the Court entertained the appeal that was taken by the attorney on the child=s behalf, and considered the arguments advanced by that attorney in opposition to the settlement. The Appellate Division recognized that in Matter of Lawrence v. Lawrence, 151 A.D.3d 1879, 54 N.Y.S.3d 358 and Matter of Kessler v. Fancher, 112 A.D.3d 1323, 978 N.Y.S.2d 501, the Appellate Division, Fourth Department, dismissed appeals taken by the attorney for the child from orders dismissing custody modification petitions. In those cases, the parent whose petition was dismissed did not appeal. The Court reasoned that children could not compel their parents to litigate positions that the parents had elected to abandon. While it did not necessarily agree with the stated rationale, it did agree that it may be inappropriate to entertain litigation by a child for a change in custody where the parent to whom the custody of the child would be transferred is unwilling to accept the transfer. Likewise, it may be inappropriate to entertain litigation by a child to prevent a change in custody where the parent who has had custody is no longer opposed to the change. The present case did not present such a concern since the father, while not having filed and perfected his own appeal, has submitted a brief in which he urged reversal of the order from which the child had appealed. Further, since enforcement of the order had been stayed pending determination of this appeal, the father remained the custodial parent. Hence, this was not a circumstance where the child was attempting to compel a custody award in favor of an unwilling parent. It concluded that the attorney for the child had authority to take an appeal on behalf of the child from the custody determination made by the Family Court.

The mother contended that the child was not aggrieved by the order changing custody and that, therefore, the child=s appeal should be dismissed. The Appellate Division held otherwise. It noted that aggrievement is an appellate concept which is designed to screen out appeals taken by those who have only a mere academic interest, or no interest at all, in the outcome. A person is aggrieved when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part. Here, during the hearing, the attorney for the child opposed the mother=s petition for sole custody and advocated for the father=s continued custody, which position was based in large part on the child=s clearly expressed preference to remain living with the father. Having sought and been denied different relief by the Family Court and having opposed the relief that was granted to the mother, it held that the child should be considered aggrieved by the determination by the Family Court.   It could not be denied that a teenaged child has a real and substantial interest in the outcome of litigation between the parents as to where the child should live and who should be entrusted to make decisions for the child. To rule otherwise would virtually relegate the child to the status of property, without rights separate and apart from those of the child=s parents.

The Appellate Division held that Family Court, erred in proceeding to hold a full custody hearing  over the objection of the attorney for the child, without first addressing whether the mother had alleged, and, if so, proven, a sufficient change in circumstances to warrant a full inquiry into whether the child=s best interests were served by the existing custodial arrangement.

Stipulation of Settlement based upon memorandum of understanding rejected were manifestly unfair given the nature and magnitude of the rights the wife waived

            In Zavulunova v Aminov,     N.Y.S.3d     , 2019 WL 2274422 (Mem), 2019 N.Y. Slip Op. 04229 (2d Dept., 2019) the parties were married in March 1994, when the plaintiff was 16 years old. The plaintiff raised the couple”s three children and remained a stay at home mother until she commenced the action in July 2014. On March 29, 2017, the parties signed a memorandum of understanding, wherein they agreed that the defendant would pay the plaintiff $ 150,000 in full satisfaction for equitable distribution, child support, and maintenance. In exchange, a pendente lite order, directing the defendant to pay temporary relief to the plaintiff, would cease to be in effect, and the plaintiff would leave the marital home within 180 days. When plaintiff refused to sign a stipulation of settlement defendant moved to enforce the memorandum and direct the plaintiff to execute the stipulation of settlement and all documents necessary to effectuate the divorce. Plaintiff cross moved to set aside the memorandum of understanding. The Supreme Court, inter alia, denied the motion and granted the cross motion. The Appellate Division affirmed. It observed that an unconscionable bargain is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense (Morad v. Morad, 27 A.D.3d 626, 627, 812 N.Y.S.2d 126) and found that the  plaintiff demonstrated that the terms of the memorandum of understanding were manifestly unfair given the nature and magnitude of the rights she waived (see Petracca v. Petracca, 101 A.D.3d at 697B699, 956 N.Y.S.2d 77).

Appellate Divison, Fourth Department

Improper for court to delegate to child authority to determine visitation

            In Matter of Heather SS v Ronald SS ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 2375483, 2019 N.Y. Slip Op. 04506 (3d Dept., 2019) the Appellate Division held, inter alia, that it would be improper for a court to delegate to a child the authority to determine visitation (see Matter of Merkle v. Henry, 133 A.D.3d at 1268, 20 N.Y.S.3d 774; see also Kimberly C. v. Christopher C., 155 A.D.3d 1329, 1335, 65 N.Y.S.3d 260 [2017]).


Family Court properly allowed Military father to temporarily relocate to attend Physician Assistant Program but should have expressly retained continuing exclusive jurisdiction

In Matter of Michael BB v Kristen CC, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 2375401, 2019 N.Y. Slip Op. 04521 (3d Dept., 2019) pursuant to a December 2016 order, the mother and the father shared joint legal and physical custody of the child. In May 2017, the father commenced a proceeding seeking permission to temporarily relocate with the child to Texas for a period of two years so that he could attend a U.S. Army Intersective Physician Assistant Program. Following a hearing, Family Court granted the father=s petition, continued the parties= joint legal custody and awarded parenting time to the mother during school breaks and all but two weeks during the summer. The Appellate Division modified. It held that Family Court=s thorough written decision demonstrated that its determination to allow relocation was based upon the proper consideration of the relevant factors. However, Family Court should have expressly retained continuing exclusive jurisdiction over the matter. It was significant that the father specifically asserted that the requested relocation was not intended to be permanent, and that he promised to return to New York to again reside with the child, in proximity to the mother and the child=s extended family members, following the completion of his program. It found that specifically retaining jurisdiction relative to any potential future issues was appropriate and reversed so much of the order as denied respondent=s request for Family Court to explicitly retain continuing exclusive jurisdiction.