September 16, 2019
Recent Legislation
Laws of 2019, Ch 258, effective September 16, 2019
Laws of 2019, Ch 258, enacted September 16, 2019 amended
Domestic Relations Law §110 by adding a new closing paragraph which provides: A
petition to adopt, where the petitioner's parentage is legally-recognized under
New York State law, shall not be denied solely on the basis that the
petitioner's parentage is already legally-recognized.
According to the Assembly Memorandum in support of the
Legislation, under existing New York law, judges already have the ability to
grant an adoption of a child by a petitioner whose parentage is already
legally-recognized. These adoptions are routinely granted and can be very
important for many same-sex couples and their children. While the spouse of a
woman who gives birth to a child is presumed to be the child's parent, same-sex
couples find themselves in a legally precarious position when traveling in
places that do not fully respect the rights of non-biological parents even when
they are married. A New York adoption would be honored in another jurisdiction,
and afforded full faith and credit. This gives children the security that both
their parents will be legally recognized wherever family members may be.
Laws of 2019, Ch 313
effective September 13, 2019
Laws of 2019, Ch 313 enacted September 13, 2019 amended
the Domestic Relations Law (DRL) and the Family Court Act (FCA) to specify that
the incarceration of the child support obligor is not to be treated as voluntary
unemployment in either the establishment or modification of a support order
unless such incarceration is the result of non-payment of a child support
order, or an offense against the custodial parent or child who is the subject
of the order or judgment. The amendments provide that incarceration shall not
be a bar to establish a substantial change in circumstances, barring these
exceptions. (amendments are underlined below)
Domestic Relations Law § 240 (1-b) (b) (5) (v) was
amended to provide that incarceration shall not be considered voluntary
unemployment in establishing child support obligations, except in certain
situations. The amendment reads as follows:
(v) an amount imputed as income based upon the parent's former
resources or income, if the court determines that a parent has reduced
resources or income in order to reduce or avoid the parent's obligation
for child support; provided that incarceration shall not be considered
voluntary unemployment, unless such incarceration is the result of non-
payment of a child support order, or an offense against the custodial
parent or child who is the subject of the order or judgment;
Domestic Relations Law § 236 [B] (9) (b) (2) (i) was
amended to provide that incarceration shall not be considered voluntary
unemployment in modifying child support obligations and shall not be a bar to
establish a substantial change in circumstances, except in certain situations.
Domestic Relations Law § 236 [B] (9) (b) (2) (i) was amended to read as follows:
(i) The court may modify an order of child support, including an order
incorporating without merging an agreement or stipulation of the
parties, upon a showing of a substantial change in circumstances.
Incarceration shall not be considered voluntary unemployment and shall
not be a bar to finding a substantial change in circumstances provided
such incarceration is not the result of non-payment of a child support
order, or an offense against the custodial parent or child who is the
subject of the order or judgment.
Family Court Act § 413 subd. 1 (b) (5) (v) was amended to
provide that incarceration shall not be considered voluntary unemployment in
establishing child support obligations, except in certain situations.
Family Court Act § 413 subd. 1 (b) (5) (v) was amended to read as follows:
(v) an amount imputed as income based upon
the parent’s former
resources or income, if the court determines
that a parent has reduced
resources or income in order to reduce or
avoid the parent’s obligation
for child support; provided that
incarceration shall not be considered
voluntary unemployment, unless such incarceration
is the result of non-
payment of a child support order, or an
offense against the custodial
parent or child who is the subject of the
order or judgment;
Family Court Act § 451 subd. 3 (a) was amended to provide
that incarceration shall not be considered voluntary unemployment in modifying
child support obligations and shall not be a bar to establish a substantial change
in circumstances, except in certain situations.
Family Court Act § 451 subd. 3 (a) was amended to read as follows:
(a) The court may modify an order of child support, including an order
incorporating without merging an agreement or stipulation of the
parties, upon a showing of a substantial change in circumstances.
Incarceration shall not be considered voluntary unemployment and shall
not be a bar to finding a substantial change in circumstances provided
such incarceration is not the result of non-payment of a child support
order, or an offense against the custodial parent or child who is the
subject of the order or judgment.
Social Services Law
§ 111-g, subd. 3 (a) was amended to comply with the
mandatory provision of the federal Bipartisan Budget Act of 2018 to increase
from $25 to $35 the annual service fee for providing child support services in
the case of an individual who has never received Title IV-A assistance. In
addition, the Social Services Law was amended to comply with
the federal requirement to increase from $500 to $550 the amount of support
that the State must collect and disburse to the family prior to imposing the
fee for each federal fiscal year.
Social Services Law § 111-g, subd. 3 (a) was amended to read as follows:
(a) A person who is receiving child support services pursuant to this
section who has never received assistance pursuant to title IV-A of the
federal social security act shall be subject to an annual service fee of
thirty-five dollars for each child support case if at least five hundred fifty dollars of support has been collected in the federal fiscal year. Where a custodial parent has children with different noncustodial parents, the order payable by each noncustodial parent shall be a separate child support case for the purpose of imposing an
annual service fee. The fee shall be deducted from child support
payments received on behalf of the individual receiving services.
According to the Assembly Memorandum in support of the
Legislation, the bill implements federal requirements and provides that
incarceration shall not be a bar to establish a substantial change in
circumstance, unless such incarceration is the result of non-payment of a child
support order, or an offense against the custodial parent or child who is the
subject of the order or judgment. Because incarceration cannot be treated as
voluntary unemployment (except in the enumerated circumstances), support awards
for incarcerated individuals will not be imputed from pre-incarceration
earnings. Instead, modification would be based on the incarcerated individual's
current financial circumstances. If there is a basis for a modification, the
child support guidelines would be applied to the incarcerated individual's
current income and assets to determine his or her new support obligation. While
incarceration itself would not be grounds for a modification, any significant
reduction in the noncustodial parent's ability to pay support could be the
basis of a downward modification (except in the enumerated circumstances).
Appellate
Division, First Department
Support
Magistrate's failure to make a recommendation as to incarceration upon finding
of willfulness constitutes recommendation against incarceration. Summary of
alleged arrears, admitted into evidence without testimony or supporting
documentation is hearsay, and not competent evidence.
In
Matter of Michael R v Amanda R, ___AD3d___, 2019 WL 4264401 (1st
Dept., 2019) the first and only day of trial on the father’s enforcement
petition took place on February 2, 2016 before the Support Magistrate. On that
date, the father offered into evidence, without objection, his typewritten
summary of the amount that he claimed the mother then owed for basic child
support and for her share of the children’s add-on expenses. The father’s
summary alleged that the mother owed total arrears of $63,003.53, from October
15, 2012 through November 1, 2015. However, he did not testify or present any
documentation or other evidence to support the numbers in his chart. The mother
testified as to her income, employment, and payment of child support and add-on
expenses, and put into evidence, without objection, the parties’ child support
stipulation her tax returns for 2012 through 2014, a letter of employment,
documentation of unemployment benefits she had received, and her financial
disclosure affidavit. At the end of the day, the court adjourned the proceeding
during the mother’s testimony. The court never took further testimony.
Subsequently, the court granted the father’s motion pursuant to CPLR 3126 for
an order of preclusion against” the mother for failure to provide post trial
disclosure.
On or about December 7, 2017, the Support Magistrate
issued findings of fact, an order of disposition, and an “Order Entry Money
Judgment.” The findings of fact stated that the mother’s testimony and evidence
at trial are stricken, based on the preclusion order. They state that neither
party “submitted proof of income, expenses, or support of others.” They also
state that the mother owed the father arrears totaling $123,720.98, apparently
based solely on the father’s “alleged statement of arrears” submitted to the
Support Magistrate on a date when no testimony was taken, and no exhibits
received in evidence. The order of disposition and the “Order Entry Money
Judgment” directed entry of a money judgment against the mother in the amount
of $123,720.98. In addition, the “Order Entry Money Judgment” directed the
mother to pay the father’s attorney $4,680 as counsel fees. The findings and
the two orders each contained a determination that the mother had willfully
violated an order of support dated April 25, 2014, although that order was not
in evidence. On February 8, 2018, the father and counsel for each party
appeared before the Family Court Judge, who issued a warrant directing that the
mother be brought before the court, and stated, “And at that time when [the
mother] is returned before this Court on that warrant, this Court will then
determine ... how this Court should proceed.”
After Family Court denied the mother’s objections to the
Support Magistrate’s findings of fact and orders entered on December 7, 2017
the Mother appealed and the Appellate Division reversed. It held that a party
may seek additional disclosure after trial commences only by permission of the
trial court on notice (CPLR 3102[d]). Here, the father never sought permission
for post-trial discovery. Nor did the father’s motion papers demonstrate any
reason why he should have been permitted to pursue additional discovery more
than a year after trial commenced. It held that in view of this, and the fact
that the mother faced contempt penalties if she were unable to present evidence
about her ability to pay, the Support Magistrate improvidently exercised his
discretion in “precluding” the mother from presenting evidence and testimony
that he had already admitted into evidence at trial more than a year
previously.
The Court noted that the Family Court Rules require that
a support magistrate's fact findings that include a finding of willfulness
“shall include ... a recommendation regarding the sanctions that should be
imposed, including a recommendation whether the sanction of incarceration is
recommended” (22 NYCRR 205.43[g]). A support magistrate's written findings of
facts must be issued within five days of the conclusion of a willfulness
hearing (22 NYCRR 205.43[f]). It had previously held that a “Support
Magistrate's failure to make a recommendation as to incarceration upon [a]
finding of willfulness essentially constituted a recommendation against
incarceration” (Matter of Carmen R. v. Luis I., 160 A.D.3d 460, 462, 74
N.Y.S.3d 37 [1st Dept. 2018]).
Here, neither the Support
Magistrate's findings of facts issued on or about December 7, 2017 nor any
other document in the record contained a recommendation as to incarceration or
a cure amount. It was not clear why the Family Court Judge before whom the
parties appeared on February 8, 2018 stated on the record that she “believe[d]”
that he had made such a recommendation. In addition, the attorneys for both
parties each confirmed on the record that they were unaware that the Support
Magistrate had made such a recommendation. Therefore, it was clear that no
recommendation had been “transmitted to the parties” with the findings of
facts. Moreover, there was no order in the record in which a Family Court Judge
confirmed any recommendation by the Support Magistrate as to incarceration.
Accordingly, Family Court erred in making a finding in its March 20, 2018 order
that the Support Magistrate had made such a recommendation.
The
Appellate Division held that Family Court erred in denying the mothers
objections on the basis that the mother’s counsel failed to file a proper
affidavit of service. Any error in the affidavit of service was inadvertent and
did not prejudice the father. Family Court Act § 439(e) provides that a party
filing objections must serve those objections upon the opposing party, and that
proof of service must be filed with the court at the time that the party’s
objections are filed. Here, the father did not argue either that the mother
failed to serve the objections on him or that he suffered any prejudice.
Accordingly, despite the mother’s attorney’s sloppy drafting, the Family Court
should have addressed the merits of the mother’s objections (Matter of Worner
v. Gavin, 112 AD3d 956, 957 [2d Dept 2013]; Matter of Nash v. Yablon–Nash, 106
AD3d 740, 741 [2d Dept 2013]; Matter of Perez v. Villamil, 19 AD3d 501 [2d Dept
2005] ).
The Appellate Division further held that
because the Support Magistrate had struck all of the mother’s testimony and
evidence, including a copy of the parties’ child support agreement, the only
evidence supporting the father’s claims was his summary of alleged arrears,
admitted into evidence without testimony or supporting documentation on the
single day of trial. The summary itself was hearsay, and was not competent
evidence of the mother’s obligation to pay child support or that she failed to
pay any sums she was obligated to pay. Nor was it clear and convincing evidence
of respondent’s willful failure to pay such sums. Moreover, the summary
apparently relied on by the Support Magistrate, which the father provided to
the court on a later date when no testimony was taken or evidence entered, was
not evidence at all.
The Appellate Division reversed on the law and vacated
the order which granted a preclusion
order against respondent mother; reversed the order which, upon the finding
that the mother willfully violated a child support order, directed entry of a
money judgment and directed the mother to pay petitioner father's counsel fees;
reversed the order which denied the mother's objections, on the law, without
costs, and remanded the matter remanded for further proceedings consistent with
its order. Finally, the Appellate Division held that no appeal lies from a
warrant of arrest which is a non appealable paper. (see Holubar v. Holubar,
2011 N.Y. Slip Op 66140[U] [2d Dept 2011]; CPLR 5701) and dismissed the appeal
from that order.
