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Wednesday, September 25, 2019

Recent Decisions and Legislation September 16, 2019


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.