Recent Articles of Interest
“Clarifying the Concepts of
Transmutation and Commingling” by Joel R. Brandes appeared in the August
22, 2019 edition of the New York Law Journal on page 4, Col. 1. Click here to read
the article
Appellate Division, Second Department
An application during trial for judgment for arrears
must be made “upon such notice to the spouse or other person as the court may
direct.” Defendant in contempt for violation of Automatic orders.
In Mage v Mage, --- N.Y.S.3d ----, 2019 WL 3436840, 2019 N.Y. Slip Op.
05973 (2d Dept., 2019) the parties, who were married in 1991, had three children.
The plaintiff commenced this action for a divorce in 2012. Prior to trial, the
plaintiff moved to hold the defendant in contempt, and the defendant
cross-moved to hold the plaintiff in contempt, for their alleged willful
disobedience of the automatic orders applicable to matrimonial actions (see
Domestic Relations Law § 236[B][2][b]; Judiciary Law § 753[A][1]; Uniform Rules
for Trial Courts [22 NYCRR] § 202.16). The Supreme Court referred both contempt
motions to trial. At the conclusion of the trial, in a decision and order dated
February 13, 2015, the court granted the plaintiff’s motion, found that the
defendant was in contempt, and denied the defendant’s cross motion, finding
that the plaintiff’s conduct did not rise to the level of sanctionable conduct.
The Appellate Division
agreed with the Supreme Court’s determination that the defendant knowingly
failed to comply with the court’s automatic order which restricted him from
transferring, selling, or converting marital funds, and that the defendant’s
actions resulted in prejudice to the plaintiff (see Judiciary Law § 753[A][3]).
It agreed with the court’s grant of the plaintiff’s motion to hold the
defendant in contempt.
The Appellate Division
held that Supreme Court should not have awarded the plaintiff arrears for
unreimbursed medical and extracurricular expenses the defendant was directed to
pay in a pendente lite order dated February 11, 2013. A party to a matrimonial
action may make an application for a judgment directing payment of such arrears
at any time prior to or subsequent to the entry of a judgment of divorce (see
Domestic Relations Law § 244). However, an application for a judgment directing
payment of arrears must be made “upon such notice to the spouse or other person
as the court may direct” (id.). Here, the plaintiff made no such application.
Only child, parent or Indian custodian from whose custody child removed, and
Indian child’s tribe have standing to allege a violation of ICWA 1911, 1912, or
1913
In Matter of Connor, ---
N.Y.S.3d ----, 2019 WL 3436659, 2019 N.Y. Slip Op. 05979 (2d Dept., 2019) in
January 2010, the subject child was born to the mother and the nonparty birth
father, a member of the Choctaw Indian tribe. The mother and the birth father
were never married. Thereafter, in January 2012, the mother married Jacob D.
(respondent). In May 2012, the respondent, with the mother’s consent, filed a
petition for adoption of the child. The birth father voluntarily relinquished
his parental rights to the child during the adoption proceeding. On May 15,
2013, the Family Court issued an order of adoption, approving the adoption of
the then three-year-old child by the respondent. On May 5, 2017, the respondent
commenced an action for a divorce against the mother. In April 2018, while the
divorce action was pending, the mother moved in the Family Court, in effect,
pursuant to Domestic Relations Law § 114(3) to vacate the order of adoption in
favor of the respondent on the ground that the child was an Indian child and
the adoption proceeding was not held in compliance with sections 1911, 1912,
and 1913 of the Indian Child Welfare Act of 1978 (25 USC § 1901 et seq.; ICWA) or, in the alternative, on the ground
that the adoption was effectuated through fraud, misrepresentation, and other
misconduct. Family Court, inter alia, denied the mother’s motion.
The Appellate Division
affirmed. It agreed with the Family Court’s determination that the mother
lacked standing to allege a violation of sections 1911, 1912, or 1913 of the
ICWA. The ICWA provides that “[a]ny Indian Child who is the subject of any
action for foster care placement or termination of parental rights under State
law, any parent or Indian custodian from whose custody such child was removed,
and the Indian child’s tribe may petition any court of competent jurisdiction
to invalidate such action upon a showing that such action violated any
provision of sections 1911, 1912, and 1913 of this title” (25 USC § 1914; see
25 CFR 23.137[a] ). Although the adoption proceeding involved the voluntary
termination of the birth father’s parental rights to the subject child, the
plain language of both 25 USC § 1914 and 25 CFR 23.137(a) was clear that only
the child, the parent or Indian custodian from whose custody the child has been
removed, and the Indian child’s tribe have standing to allege a violation of
sections 1911, 1912, or 1913 of the ICWA (see 25 USC § 1914; 25 CFR 23.137[a]
). Since the mother did not fall into any of those categories, she lacked
standing to allege a violation of sections 1911, 1912, or 1913 of the ICWA (see
25 USC § 1914; 25 CFR 23.137[a]). “[T]he language of [section] 1914 itself ...
limits standing to challenge state-law terminations of parental right to
parents ‘from whose custody such child was removed’ ” (Matter of Adoption of
Child of Indian Heritage, 111 N.J. 155, 179, 543 A.2d 925, 937, quoting 25 USC
§ 1914; see Matter of S.C., 1992 OK 98, ¶ 23, 833 P.2d 1249, 1254, overruled on
other grounds Matter of Baby Boy L., 2004 OK 93, 103 P.3d 1099).
The Appellate Division
also agreed with the Family Court’s determination that the order of adoption
should not be vacated on any of the other grounds asserted by the mother.
Domestic Relations Law § 114(3) permits a court in which an order of adoption
was made to “open, vacate or set aside such order of adoption for fraud, newly
discovered evidence or other sufficient cause.” “[T]he fraud which will suffice
to vacate an order or judgment must be fraud in the very means by which the
judgment was procured”. The mother’s allegations of domestic violence during
her marriage to the respondent, and that the respondent “never intended to be a
decent and loving parent to [the child] as promised,” did not amount to fraud
or otherwise provide a legal ground upon which the order of adoption may be
vacated.
Appellate Division, Third Department
Third Department
Joins Fourth Department holding child in a custody
matter does not have full party status
In Matter of Kanya J v. Christopher K, 2019 WL 3475277 (3d Dept.,2019)
Family Court issued an order in February 2018, which, among other things,
granted the father joint legal custody of the child. The Appellate Division,
inter alia, denied the mother’s motion to strike the attorney for the child’s
brief on the basis that the attorney for the child failed to indicate in her
brief whether she had met with the child, what the child’s preferences were and
why she was substituting her judgment. In her responding affirmation, and again
during oral argument, the appellate attorney for the child confirmed that she
had interviewed the child and had determined that the arguments made by the
trial attorney for the child were still appropriate arguments on the appeal.
The Court found that the foregoing demonstrated that the appellate attorney for
the child has complied with the requirements of 22 NYCRR 7.2(d)(3) and,
therefore, the mother’s motion was denied. In a footnote the court observed
that contrary to the father’s contention, the mother had standing to bring this
motion inasmuch as a child in a custody matter does not have full party status
(see Matter of Lawrence v. Lawrence, 151 A.D.3d 1879, 1279 [2017]; Matter of
Kessler v. Fancher, 112 A.D.3d 1323, 1324, 978 N.Y.S.2d 501 [2013]).
