March 16, 2020
Recent Articles of Interest
An article by Joel R. Brandes, titled" Stare Decisis, Precedent and Dicta, appears in the March 2020 issue of the New York State Bar Journal, Vol.92, No. 2 at page 36.
An article by Joel R. Brandes titled "Navigating the Matrimonial Preliminary Conference So You Don’t Sink the Ship". appears in the New York State Bar Association Family Law Review, Winter 2020, Vol. 52, No. 1.
"Custody Rights of Non-Biological Parents," by Joel R. Brandes appears in the New York Law Journal, March 12, 2020 (Click here for article)
Court Rules and Legislation – For those who missed our last issue
On March 1, 2020 the combined income cap under the Child Support Standards Act increased from $148,000 to $154,000, and of the income cap of the maintenance payor under the Maintenance Guidelines Act increased from $184,000 to $192,000. In addition, as of March 1, 2020 the Self Support Reserve increased from $16,861.50, to $17,226 and the federal Poverty Level Income for a single person increased from $12,490 to $12,760. (See https://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf)
Revised Forms for Use in Matrimonial Actions in Supreme Court were adopted effective March 1, 2020. These revisions reflect the required statutory adjustment on March 1, 2020 of the combined income cap under the Child Support Standards Act from $148,000 to $154,000, and of the income cap of the maintenance payor under the Maintenance Guidelines Act from $184,000 to $192,000. Both of these adjustments are based on increases in the Consumer Price Index for all urban consumers (CPI-U) published by the United States Department of Labor. In addition, the revised forms reflect the increases as of March 1, 2020 in the Self Support Reserve from $16,861.50, to $17,226 and in the federal Poverty Level Income for a single person from $12,490 to $12,760.
Forms and Calculators for both Contested and Uncontested Divorces revised March 1, 2020 reflecting these changes are posted at
http://ww2.nycourts.gov/divorce/MaintenanceChildSupportTools.shtml
Uncontested Divorce Forms revised March 1, 2020 reflecting these changes as well as revisions relating to applications for child support services are also posted at http://ww2.nycourts.gov/divorce/divorce_withchildrenunder21.shtml
(See http://ww2.nycourts.gov/divorce/legislationandcourtrules.shtml)
Appellate Division, First Department
Credit against child support for payment of room and board at college not mandatory
In Matter of Deborah R. V Dean E. H., --- N.Y.S.3d ----, 2020 WL 1056521, 2020 N.Y. Slip Op. 01564 (1st Dept., 2020) the Appellate Division held that Family Court properly denied respondent’s request for a credit for the child’s college room and board expenses. A credit against child support for room and board expenses “is not mandatory but depends upon the facts and circumstances in the particular case, taking into account the needs of the custodial parent to maintain a household and provide certain necessaries”.
Appellate Divison, Third Department
Where husband’s actual income less than reported on his W-2 income tax form Court imputed income based upon evidence of his actual income. Duration of maintenance award will not be disturbed so long as the statutory factors and the parties’ predivorce standard of living were properly considered.
In Bell-Vesely v Vesely, --- N.Y.S.3d ----, 2020 WL 930505, 2020 N.Y. Slip Op. 01415 (3d Dept.,2020) Plaintiff (wife) and defendant (husband) were married in 1996 and were the parents of a son (born in 1994) and a daughter (born in 1999). In July 2016, the wife commenced an action for divorce. Supreme Court granted a judgment of divorce, which, among other things, equally divided certain marital property and directed the husband to pay maintenance to the wife of $164.86 per month for seven years and child support for the daughter of $614.66 per month based on his imputed income of $49,000. The court also declined to award the wife additional counsel fees and determined that the sum remaining in the husband’s Wells Fargo brokerage account was separate property not subject to equitable distribution.
The Appellate Division held that “because imputed income more accurately reflects a party’s earning capacity and, presumably, his or her ability to pay, it may be attributed to a party as long as the court articulates the basis for imputation and the record evidence supports the calculations”. In determining a party’s child support or spousal maintenance obligation, a court may exercise its discretion by imputing income where there is clear and undisputed evidence of a party’s actual income during the pendency of the proceeding. The record supported Supreme Court’s determination that the husband’s actual income in 2016 was $49,000, notwithstanding the fact that his 2016 W–2 form reported income of approximately $91,000. The discrepancy pertained to a lump-sum loan/bonus payment of $350,000 that the husband received up front in January 2012. The husband was required to sign a promissory note requiring repayment of the loan/bonus in the event that his employment ended within a defined time. The loan/bonus proportionately transformed into debt when the husband left his employment prior to December 2021.
The Appellate Division rejected the wife’s contention that Supreme Court erred in determining the duration of maintenance to be seven, instead of eight, years. The husband’s seven-year term was presumably based on the formula for postdivorce maintenance set forth in Domestic Relations Law § 236(B)(6)(f). Under that formula, where, as here, the parties are married for 20 years, the duration can be set at between 30–40% of the term – which would allow a maximum duration of eight years. It observed that the duration of a maintenance award pursuant to this formula is discretionary, “and the award will not be disturbed so long as the statutory factors and the parties’ predivorce standard of living were properly considered”.
The Appellate Division held that Supreme Court erred in not ordering the husband to maintain the daughter’s health insurance or to pay his share of the daughter’s uninsured medical expenses. “Where the child is presently covered by health insurance benefits, the court shall direct in the order of support that such coverage be maintained” (Domestic Relations Law § 240[c][1]). Generally, “[i]f the non-custodial parent is ordered to provide such benefits, the custodial parent’s pro rata share of such costs shall be deducted from the basic support obligation” (Domestic Relations Law § 240[1–b] [c][5][ii]). Further, “the court shall pro rate each parent’s share of reasonable health care expenses not reimbursed or paid by insurance ... in the same proportion as each parent’s income is to the combined parental income” (Domestic Relations Law § 240[1–b] [c][5][v]). The husband testified that he carried and intended to maintain health insurance for the daughter. Thus, the court erred when it did not order the husband to maintain health insurance for her. In addition, the wife’s pro rata share of the cost of such health insurance, which was 41%, had to be deducted from the basic child support obligation (see Domestic Relations Law § 240[1–b] [c][5][ii]). As for the daughter’s uninsured medical expenses, the husband and the wife were directed to pay their pro rata share thereof, 59% and 41%, respectively.
By his silence the father gave implied consent to the college chosen. Mother did not waive right to challenge father’s claims regarding his annual income simply because she previously signed joint tax returns that reported a lower income.
In Matter of Susko v Susko, --- N.Y.S.3d ----, 2020 WL 1056323, 2020 N.Y. Slip Op. 01536 (3d Dept.,2020) the mother testified that she kept the father informed of the colleges that the child was considering, told him promptly that the child had been accepted at the chosen college and then provided him with full information about that school’s cost and the child’s financial aid award. She repeatedly asked the father whether he consented to this college and how much he would contribute, but he gave only evasive responses. She testified that the father never voiced any express objection to the chosen college; on the contrary, he participated in completing financial aid documentation for that school, responded, “[T]hat is great” when he was informed by email of the child’s acceptance and paid $450 as half of the initial deposit without objection. Thereafter, however, he paid nothing more. The father testified that he did not consent to the chosen college because he could not afford it, but he acknowledged that he had never expressly stated that he did not consent to that school. The Appellate Division held that this fully supported the finding that the father gave implied consent to the chosen college and, therefore, that he violated the party’s agreement by failing to make a contribution to its cost commensurate with his ability to pay.
The Appellate Division held that where, as here, “the parties expressly undertook an obligation to contribute toward the cost of the child’s college education, but did not precisely define the extent of their obligations, Family Court should proceed to consider the parties’ financial means and ability to contribute and determine their respective obligations by assessing their pro rata shares of their combined parental income, as the Support Magistrate did here.
The Appellate Division also held that the mother did not waive her right to challenge the father’s claims regarding his annual income simply because she had previously signed joint tax returns that reported a lower income (Harrington v. Harrington, 93 A.D.3d 1092, 1093–1094, 941 N.Y.S.2d 320 [2012]).
Family Court erred in finding that the Support Magistrate properly credited one third of the father’s total child support obligation over 40 weeks against his annual share of the child’s college costs. The agreement provided that the father’s child support payments should be “take[n] into consideration” in determining the parties’ obligations to share college costs. “In the absence of specific contractual language, the availability and amount of such a credit depend upon the facts and circumstances in the particular case, taking into account the needs of the custodial parent to maintain a household and provide certain necessaries”. Since the purpose of a child support credit against college costs is to avoid duplication, it covers only those expenses associated with the child’s room and board, rather than college tuition.
Editor’s note: In Mahoney-Buntzman v Buntzman, 881 N.Y.S.2d 369 (2009) the Court of Appeals held that a party to litigation may not take a position contrary to a position taken in an income tax return
March 1, 2020
Court Rules and Legislation
On March 1, 2020 the combined income cap under the Child Support Standards Act increased from $148,000 to $154,000, and of the income cap of the maintenance payor under the Maintenance Guidelines Act increased from $184,000 to $192,000. In addition, as of March 1, 2020 the Self Support Reserve increased from $16,861.50, to $17,226 and the federal Poverty Level Income for a single person increased from $12,490 to $12,760. (See https://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf)
Revised Forms for Use in Matrimonial Actions in Supreme Court were adopted effective March 1, 2020. These revisions reflect the required statutory adjustment on March 1, 2020 of the combined income cap under the Child Support Standards Act from $148,000 to $154,000, and of the income cap of the maintenance payor under the Maintenance Guidelines Act from $184,000 to $192,000. Both of these adjustments are based on increases in the Consumer Price Index for all urban consumers (CPI-U) published by the United States Department of Labor. In addition, the revised forms reflect the increases as of March 1, 2020 in the Self Support Reserve from $16,861.50, to $17,226 and in the federal Poverty Level Income for a single person from $12,490 to $12,760.
Forms and Calculators for both Contested and Uncontested Divorces revised March 1, 2020 reflecting these changes are posted at
http://ww2.nycourts.gov/divorce/MaintenanceChildSupportTools.shtml
Uncontested Divorce Forms revised March 1, 2020 reflecting these changes as well as revisions relating to applications for child support services are also posted at http://ww2.nycourts.gov/divorce/divorce_withchildrenunder21.shtml
(See http://ww2.nycourts.gov/divorce/legislationandcourtrules.shtml)
Appellate Division, Third Department
In absence of persuasive proof that mother’s “ability to earn sufficient means to pay child support was any different than the income that she was earning, there was no abuse of discretion in refusing to impute additional income to her
In Matter of O’Brien v Rutland, -- N.Y.S.3d ----, 2020 WL 825698, 2020 N.Y. Slip Op. 01222 (3d Dept.,2020) the daughter began living exclusively with the mother in 2015, prompting the mother to file, as is relevant here, a 2016 support petition with regard to her. On appeal from the order of support the Appellate Division noted that the father’s obligation to support the daughter ceased when she reached 21 years of age during the pendency of the appeal (see Family Ct Act § 413[1][a]). In the absence of a continuing support obligation, the mother argued that this appeal is moot. The Appellate Division pointed out that “where a final order of support ‘retroactively sets a higher rate than that paid during the pendency of the [proceeding, thereby] creating an immediate arrearage,’ credit should be given regarding such arrearage” (Matter of Tompkins County Support Collection Unit v. Chamberlain, 305 A.D.2d 813, 814, 758 N.Y.S.2d 542 [2003]. Inasmuch as those arrears exist here and were still being paid by the father, the appeal was not moot. The Appellate Division held that in the absence of persuasive proof that the mother’s “ability to earn sufficient means to pay child support” was any different than the income that she was earning, there was no abuse of discretion in refusing to impute additional income to her. It also held that Family Court should have sustained the father’s objection to the Support Magistrate omitting rent, admittedly paid to the mother by her fiancé́, from her income (see Family Ct Act § 413[1][f][1]; Matter of Carr v. Carr, 309 A.D.2d 1001, 1004, 765 N.Y.S.2d 688 [2003]).-
Not necessary for Family Court to dismiss visitation petitions because they were unsworn. Verification of a visitation petition is not required by CPLR 3020 or Family Ct Act article 6
In Matter of Shawn MM v Jasmine LL, 2020 WL 825695 (3d Dept., 2020) the Appellate Division held that although Family Court is not required to hold a hearing in every case, where modification of a custody order is sought, a hearing should generally be conducted “unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the child’s best interests. In determining whether a pro se petitioner made a sufficient evidentiary showing to warrant a hearing, it construes the pleadings liberally and afford the petitioner the benefit of every favorable inference. In its August 2018 order awarding sole custody to the mother upon the father’s default, Family Court “ordered that the rights are reserved for [the father] to file for custody and/or visitation.” Because the order did not otherwise address visitation, it appeared that Family Court did not intend to require the father to demonstrate a change in circumstances in order to petition for visitation
The Appellate Division held that it was not necessary for Family Court to dismiss the petitions because they were unsworn, given that verification of a visitation petition is not required by either CPLR 3020 or Family Ct Act article 6 (see generally Patrick M. Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3020:3, C3020:5).
Family Court’s characterization that an order is based on consent is not controlling when the record shows a party objected to the order.
In Matter of Adam V v Ashli W, --- N.Y.S.3d ----, 2020 WL 825604, 2020 N.Y. Slip Op. 01231(3d Dept.,2020) the Appellate Division pointed out that no appeal lies from an order entered upon the consent of the appealing party, since a party who consents to an order is not aggrieved thereby, except to the extent that it differs from or exceeds the consent (Hatsis v. Hatsis, 122 A.D.2d 111, 111, 504 N.Y.S.2d 508 [1986]). Family Court’s characterization that an order is based on consent is not controlling when the record shows a party objected to the order. The record revealed that, during the placement of the agreement upon the record, the mother objected to the exchange times stating that she would be “hard pressed to make 9:00 a.m. on Sundays.” The mother also sought clarification as to the documentation required to prove a change of residency. Upon receipt of the proposed order, Family Court was notified of the mother’s objections by written correspondence, specifically, that the mother objected to the father’s exchange times and, further, to providing multiple documents to prove her residency. The mother clearly did not consent to the terms contained in the amended order, and, thus the order was appealable. Consequently, because the amended order failed to set forth the terms to which the parties agreed in open court, it was modified accordingly.
Supreme Court
Supreme Court holds that Claim for spousal support that was necessary prior to spouse’s death does not abate upon death of spouse.
In Dean v Dean, --- N.Y.S.3d ----, 2020 WL 769994, 2020 N.Y. Slip Op. 20042 2020 WL 769994 (Sup. Ct., 2020) the Supreme Court held that a claim for spousal support under Article 4 of the Family Court Act abates upon the death of a party. However, it does not abate the claim for support that was necessary prior to the spouse’s death. If the decedent was entitled to support under New York law and experienced hard times during the pendency of this action, that claim survives her death and can be maintained by her representative, the executor.
February 16, 2020
Appellate Division, First Department
Best Interest of the Child test applies to relocation petition where no prior custody order.
In Michaels v Michaels, --- N.Y.S.3d ----, 2020 WL 536320, 2020 N.Y. Slip Op. 00815 (1st Dept., 2020) the Appellate Division held that where there is no prior custody order in place at the time of the relocation petition, the test that should be applied is that of the best interests of the children, and relocation is but one factor in determining the children’s best interests (see Matter of Michael B. [Lillian B.], 145 AD3d 425, 430 [1st Dept 2016]; see also Arthur v. Galletti, 176 AD3d 412 [1st Dept 2019]; Matter of Saperston v. Holdaway, 93 AD3d 1271 [4th Dept 2012], appeal dismissed 19 NY3d 887 [2012]).
Counsel Fee Award to Wife Precluded by failure to comply with 22 NYCRR 1400.3
In Adjmi v Tawil, --- N.Y.S.3d ----, 2020 WL 573175, 2020 N.Y. Slip Op. 00911 (1st Dept.,2020) the Appellate Division affirmed a judgment which, inter alia, directed plaintiff husband to pay $7,000 monthly in child support and the parties’ child’s tuition at a Jewish day school from preschool through 12th grade. The trial record demonstrated that the child support award amply provided for the child’s actual needs. As the parties separated while defendant was still pregnant, it could not be said that a standard of living was established for the child. Contrary to defendant’s contention, plaintiff’s wealth alone was insufficient to warrant doubling the child support award. The trial court providently exercised its discretion in directing plaintiff to pay 100% of the child’s tuition at a Jewish day school from preschool through 12th grade (see Domestic Relations Law § 240[1–b] [c][7]). The evidence established that two of defendant’s children and three of plaintiff’s children attended Jewish day schools and that plaintiff actively supported religious education and could afford the tuition.
The Appellate Division reversed the award of counsel fees to defendant because it was is precluded by her attorney’s failure to comply with the rules pertaining to domestic relations matters (22 NYCRR part 1400). Defendant was represented in these matrimonial proceedings by her father, a patent lawyer, for more than a year. She did not execute a retainer agreement until shortly before the trial, and she testified that her father had never sent her an itemized bill (see 22 NYCRR 1400.3).
Appellate Division, Fourth Department
Appellate Division treats decision appealed from as an appealable order
In Nicol v Nicol, --- N.Y.S.3d ----, 2020 WL 501424, 2020 N.Y. Slip Op. 00740 (4th Dept., 2020) the Appellate Division held that the court erred in summarily denying the plaintiffs motion insofar as it sought a downward modification of his child support obligation with respect to the health insurance premiums, on the ground that plaintiff had, in effect, implicitly waived his right to seek a downward modification by failing to take remedial action after defendant informed him of the cost increase for the children’s health insurance premiums. It is well settled that a waiver “‘should not be lightly presumed’ and must be based on ‘a clear manifestation of intent’ to relinquish” a known right. Plaintiff’s inaction here did not constitute a waiver inasmuch as inaction or silence cannot constitute a waiver.
The dissent disagreed with the majority’s decision to treat the decision appealed from as an order, and field a dissent. It observed that in 1987, this Court held that “[n]o appeal lies from a mere decision” (Kuhn v. Kuhn, 129 A.D.2d 967, 967, 514 N.Y.S.2d 284 (4th Dept. 1987)). In reaching that conclusion, it relied on, inter alia, CPLR 5512(a), titled “appealable paper,” which provides that “[a]n initial appeal shall be taken from the judgment or order of the court of original instance.” Until today, it had routinely followed that settled principle as do all of the other Departments of the Appellate Division, as well as the Court of Appeals. Here, the record included a decision that was denominated only as a decision and has no ordering paragraphs and, in his notice of appeal, plaintiff explicitly appealed “from the Decision”. The majority believed that the decision was an appealable paper because it meets “the essential requirements of an order.” To support that proposition, the majority relied on Matter of Louka v. Shehatou, 67 A.D.3d 1476, 888 N.Y.S.2d 841(4th Dept. 2009) ), where this Court determined that a letter would be treated as an order inasmuch as “the Referee filed the letter with the Family Court Clerk and ... the letter resolved the motion and advised the father that he had a right to appeal”. Although the decision here was filed and resolved the motion, there was no directive in the decision that plaintiff had the right to appeal from it. Thus, under the majority’s determination, an appeal may lie from a mere decision if it was filed and if it resolved the issues presented by the parties, the appealable paper no longer needs to be labeled as an order and it no longer needs any ordering paragraphs, and the appellant can still appeal even if he or she refers to the paper on appeal as a “decision” in the notice of appeal.
February 1, 2020
Appellate Division, First Department
Non-voluntary union dues may be deducted from income for calculating child support
In Matter of Julien v Ware, --- N.Y.S.3d ----, 2020 WL 356132, 2020 N.Y. Slip Op. 00414 (2020) a child support proceeding the Appellate Division held that although no deduction from income for union dues is specifically mandated by the Family Court Act, there is an allowable deduction for “unreimbursed employee business expenses except to the extent said expenses reduce personal expenditures” (Family Ct Act § 413[1][b][5][vii][A] ). Nonvoluntary union dues may be deducted under this category (see 33A Am Jur 2d, Federal Taxation ¶ 16502). However, such expenses are properly deducted from parental income in calculating child support obligations only when proven, usually by tax returns accompanied by records and receipts.
Non-custodial Parent May Commence Support Proceeding
In Matter of Anthony S v Monique T.B., --- N.Y.S.3d ----, 2020 WL 283492, 2020 N.Y. Slip Op. 00382 (1st Dept., 2020) the Appellate Division held that the Family Court Act (FCA) does not prohibit a non-custodial parent from commencing a support proceeding (see FCA § 422[a] [“A parent or guardian, of a child, or other person in loco parentis, . . . may file a petition in behalf of a dependent relative”]). While a shared custodial arrangement, the custodial parent cannot be required to pay child support as a matter of law (Rubin v. Della Salla, 107 AD3d 60, 67 [1st Dept. 2013]), the unusual facts of this case did not demonstrate a shared custodial arrangement. Respondent was admittedly the non-custodial parent and had not contributed toward the children’s support since the filing of the petitions; no other party has stepped forward to file a support petition, including the paternal grandmother who respondent claimed was acting as the children’s primary caretaker; and no evidence was submitted that either child was emancipated for the purposes of child support at the time the petitions were filed. Under the circumstances, there was no reason to disturb the Support Magistrate’s determination that petitioner was credibly seeking support on behalf of the subject children and their paternal grandmother (see, e.g. Matter of Nasir J., 35 AD3d 299 [1st Dept. 2006]).
Appellate Division, Second Department.
Second Department holds it is Not error to allow interpreter for non-English speaking litigant to appear by Skype
In Matter of Omnamm L v Kumar L, 177 A.D.3d 973, 113 N.Y.S.3d 186, 2019 N.Y. Slip Op. 08563 (2d Dept.,2019) an abuse proceeding, the Appellate Division held that the Family Court did not err in proceeding with the fact-finding hearing on the first day, when the interpreter appeared remotely over Skype. Non–English speaking litigants are entitled to an interpreter at proceedings to enable them to participate meaningfully in their trial and assist in their own defense. The procedures utilized by the court allowed the father to meaningfully participate in the hearing (see 22 NYCRR 217.1[a]).
Hair follicle testing records are admissible if the recipient can establish personal knowledge of the maker’s business practices and procedures, or establish that the records provided by the maker were incorporated into the recipient’s own records and routinely relied upon by the recipient in its own business
In Matter of Sincere S.,176 A.D.3d 1072, 113 N.Y.S.3d 91, 2019 N.Y. Slip Op. 07588 (2d Dept.,2019) the Appellate Division agreed with the Family Court’s determination that the hair follicle testing records were admissible. While the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records. (Bank of N.Y. Mellon v. Gordon, 171 A.D.3d 197, 209), such records may be admitted into evidence if the recipient can establish personal knowledge of the maker’s business practices and procedures, or establish that the records provided by the maker were incorporated into the recipient’s own records and routinely relied upon by the recipient in its own business (Bank of N.Y. Mellon v. Gordon, 171 A.D.3d at 209, 97 N.Y.S.3d 286). The DSS presented testimony from a case manager of the Family Court Treatment Alternatives for Safer Communities program that the hair follicle test results provided by an outside laboratory were incorporated into her office’s reports and routinely relied upon to issue hair follicle test reports. Thus, the DSS established the admissibility of the hair follicle test results admitted as Petitioner’s Exhibits 5 and 6 (see State of New York v. 158th St. & Riverside Dr. Hous. Co., Inc., 100 A.D.3d 1293, 1296, 956 N.Y.S.2d 196). The DSS also established the admissibility of the hair follicle test reports admitted as Petitioner’s Exhibits 3 and 4 by establishing that each participant in the chain that produced the reports acted within the course of regular business conduct (see Family Ct Act § 1046[a][iv]; Matter of Grace J. [Louise J.], 140 A.D.3d 1166, 1167, 33 N.Y.S.3d 758).
Appellate Division, Third Department
No credit against child support and maintenance for interim support where husband already obligated by contract for those payments
In Allen v Allen, --- N.Y.S.3d ----, 2020 WL 239080, 2020 N.Y. Slip Op. 00331 (3d Dept., 2020) Plaintiff (wife) and the defendant (husband) were married in 1999 and had four children. The wife commenced the action for divorce in January 2013. The Appellate Division, among other things, rejected the husbands argument that Supreme Court erred in failing to provide him a credit against his child support and maintenance obligations because he paid for the wife’s shelter costs, including property taxes, homeowner’s insurance and electricity bills while she and the children resided in the marital residence. Because the husband was already contractually obligated to pay these expenses on his separate property, and a party in a dispute over child support or maintenance cannot get credit for performing their own pre-existing legal obligations to third parties, this contention had no merit.
The Appellate Division held that Supreme Court did not abuse its discretion in holding the wife’s child support payments to the husband in abeyance until the husband paid, in full, any amounts due to the wife pursuant to the judgment of divorce. The husband expressed hostility regarding his court-ordered obligation to pay the wife maintenance, stating that he would rather go to jail than pay maintenance. Due to this refusal, a large sum of arrears had accrued that resulted in a judgment to the wife for nearly $45,000. Therefore, given the rationale for holding the wife’s child support obligation in abeyance, it did not find that Supreme Court abused its discretion.
January 16, 2020
Court Rules
NY Order 20-0001 amended the Local Rules of the Appellate Division, Second Department dealing with the mediation program.
22 NYCRR 670.3 (d) (2) (ii) was amended to require that Counsel with knowledge of the matter on appeal and who is prepared to engage in meaningful settlement discussions is required to attend the mediation. (d) (ii) (v) was amended to provide that failure of the parties to the appeal and/or their counsel with knowledge of the matter on appeal who is prepared to engage in meaningful settlement discussions to appear or to appear on time may result in the imposition of sanctions.
The amendments read as follows:
22 NYCRR § 670.3. Initial Filings; Active Management of Causes; Settlement or Mediation Program
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(d) Mandatory Civil Appeals Mediation Program
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(2) Mandatory Mediation; Notice of Reference
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(ii) Upon such designation, the Clerk of the Court, shall cause to be issued a Notice of Reference, which shall direct the parties to the appeal and their counsel, as well as any other individual whose attendance the court may require, to attend an initial, ninety-minute session, without charge, before a designated Special Master identified in that Notice. The Notice of Reference shall set forth the date, time, and place of the initial mediation session. Counsel with knowledge of the matter on appeal and who is prepared to engage in meaningful settlement discussions and parties who are natural persons are required to attend the mediation in person, In the event that a party is not a natural’ person but a legal entity, such as a corporation or limited liability company, such entity is required to have present at the mediation a representative of the entity who has the authority to make binding decisions on behalf of the entity.
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(v) Mediation sessions shall be deemed appearances before this court. Failure of the parties to the appeal and/or their counsel with knowledge of the matter on appeal who is prepared to engage in meaningful settlement discussions to appear or to appear on time may result in the imposition of sanctions pursuant to Part 130 of the Rules of the Chief Administer of the Courts (22 NYCRR Part 130). The initial mediation session shall constitute an actual engagement before this court for the purposes of Part 125 of the Rules of the Chief Administrator of the Courts (22 NYCRR Part 125).
New Form added to Uncontested Divorce Packet
By Administrative order 284-2019 a Short Form Application for Child Support Services in Supreme Court was adopted effective December 1, 2019, for use in uncontested divorce actions.
Appellate Division, Second Department
Father deprived of the effective assistance of counsel in enforcement proceeding. Appropriate standard to apply in evaluating a claim of ineffective assistance is “meaningful representation standard”
In Matter of Miller v. DiPalma, --- N.Y.S.3d ----, 2020 WL 88886, 2020 N.Y. Slip Op. 00140 (2d Dept.,2020) the Appellate Division held that the father was deprived of the effective assistance of counsel at a hearing on the mother’s petition for violation of an order of child support. In support proceedings such as this one, “the appropriate standard to apply in evaluating a claim of ineffective assistance is the meaningful representation standard” (Matter of Nassau County Dept. of Social Servs. v. King, 149 A.D.3d 942, 944, 53 N.Y.S.3d 130). Here, the father’s defense at the hearing was that because of a back injury, he was unable to continue working as a mail carrier beginning in January 2018 and that, prior to obtaining a new position at the post office in March 2019, he searched for different work. Notably, despite being advised on multiple occasions that the father was required to provide a financial disclosure affidavit, tax forms, proof that he was diligently searching for employment, and certified medical records, counsel failed to procure the father’s medical records or provide the court with any relevant financial documentation. The father’s counsel also failed to call any witnesses to testify as to the effects of the father’s back injury, subpoena his treating physician, or obtain a medical affidavit. The Family Court made specific reference to the lack of any credible medical testimony, financial disclosure affidavit, tax returns, or proof of a job search in its determination that the father failed to refute the mother’s prima facie showing of willfulness. The Appellate Division held that Counsel’s failure to obtain relevant medical information or to procure financial and job search records that may have supported the father’s contention constituted a failure to meaningfully represent the father, and he is entitled to a new hearing on the violation petition.
Appellate Division, Third Department
In absence of parties’ actual separation at time of execution of separation agreement or immediately thereafter, separation agreement is void ab initio. Provision that agreement not invalidated without a subsequent writing void where agreement itself, rather than any of its components, is brought to an end. Use of marital funds to pay trial counsel is not a waste of assets.
In Martin v Martin, --- N.Y.S.3d ----, 2019 WL 7173295, 2019 N.Y. Slip Op. 09345 (3d Dept., 2019) the parties were married in 1991, and executed a separation agreement in 2005 that provided for the distribution of their assets, but continued to live together until 2015. The wife commenced the action in October 2015, with the husband counterclaiming for a declaration that the separation agreement was void. After trial, the Supreme Court determined that the parties’ separation agreement was void, distributed the marital assets and debts, and awarded the husband $25,000 in counsel fees.
The Appellate Division held, inter alia, that Supreme Court properly found that the separation agreement was void. It is fundamental that, in the absence of the parties’ actual separation at the time of execution of a separation agreement or immediately thereafter, a separation agreement is void ab initio. The parties lived together for a decade after entering into the separation agreement and, although more than mere cohabitation was required to render the agreement void (Rosenhaus v. Rosenhaus, 121 A.D.2d 707, 708, 503 N.Y.S.2d 892 [1986], they also filed joint tax returns, maintained a joint checking account and had joint credit cards. Supreme Court further credited the testimony of the husband that the parties lived as a married couple and that the wife handled their financial affairs throughout that period, as well as that they only executed the separation agreement so that the wife could take out more college loans for her daughters from a previous marriage. To the extent that the wife raised the issue, the provision in the separation agreement providing that the agreement shall not be invalidated without a subsequent writing was itself void where, as here, the agreement itself, rather than any of its components, is brought to an end.
The Appellate Division held, inter alia, that Supreme Court abused its discretion finding that the wife wastefully dissipated or improperly transferred marital funds that she deposited in a separate account around the time this action was commenced, insofar as $15,000 of the funds were legitimately paid to her trial counsel.
Finally, Supreme Court was within its right to direct that the distributive award to the husband be reduced to a money judgment and authorize a qualified domestic relations order so that those monies could be deducted from the wife’s pension.
Non-biological, non-adoptive partner had standing, as a parent, to seek visitation and custody under Domestic Relations Law § 70. Family Court did not err in applying the conception test to determine petitioner’s standing without regard to her subsequent relationship with the child.
In Matter of Heather NN v Vinette OO, 2019 WL 7173471 (3d Dept.,2019) Petitioner commenced a proceeding in 2016 seeking joint legal custody and parenting time, following the issuance of Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488 (2016)). Family Court found that petitioner had standing to seek legal custody and parenting time. The court granted sole legal custody and physical placement of the child to the respondent and awarded parenting time to petitioner in a graduated schedule of parenting time, to begin with one-hour weekly in therapeutic counseling sessions for eight weeks.
Respondent was the biological mother of a child (born in 2008) who was conceived via artificial insemination during a same-sex relationship between respondent and petitioner. The parties separated in 2009, approximately one year after the child’s birth, and the child remained with the respondent. Respondent permitted petitioner to have parenting time for approximately two years, but then terminated all visitation. Thereafter, respondent occasionally sent pictures of the child to petitioner and permitted petitioner to speak with the child on the telephone, but directed petitioner not to use her real name or tell the child who she was. The petitioner had not been allowed any parenting time since 2010. Petitioner and respondent met in 2004 at a counseling facility in Brooklyn where petitioner was required to undergo substance abuse counseling. The parties entered into an intimate relationship and, after petitioner completed her counseling in 2005, respondent moved from Brooklyn to the City of Binghamton, to live with petitioner in a home that petitioner owned there. Several months after respondent began residing with petitioner, petitioner’s home was searched pursuant to a warrant and petitioner was arrested for the sale of narcotics. She was incarcerated for approximately 14 months in 2006 and 2007. The parties continued their relationship during this period. Respondent continued to reside in petitioner’s home, visited petitioner regularly, and used a power of attorney to manage petitioner’s business affairs, including several rental properties. Respondent wrote letters to petitioner – subsequently admitted into evidence – in which respondent stated her desire to marry petitioner and have children with her. Following petitioner’s release, the parties agreed to conceive a child using artificial insemination. Both parties attended appointments with a fertility doctor. There were two inseminations; petitioner was present and injected the sperm on at least one of these occasions. Petitioner’s credit card was used to pay the related expenses. Petitioner attended at least one baby shower where friends and family members of both parties were present. Petitioner attended respondent’s prenatal appointments, was present when the child was born, and cut the child’s umbilical cord. The child was given two last names, reflecting the parties’ two surnames. Petitioner testified that the child was named, in part, after petitioner’s mother. Petitioner assisted in buying items for the child and shared day-care costs with respondent. The two parties were listed as the child’s two mothers in some of her medical and immunization records. Respondent testified that she told petitioner that the child would be part of petitioner’s life if they continued to reside together and also if they separated, so long as petitioner did not engage in illegal activities, but that if petitioner did so engage, she would not have a role in the child’s life.
The Appellate Division observed that in 2016 the Court of Appeals expanded the statutory definition of a parent, holding that when a biological parent’s former partner “shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70” (Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d at 14, 39 N.Y.S.3d 89, 61 N.E.3d 488. The Court declined to find that any single test would cover all potential circumstances and held open the possibility that parenthood could also be established by other means. Upon this record, the Appellate Division held that Family Court correctly determined that petitioner fell within the statutory definition of a parent and, thus, had standing in this proceeding. Contrary to respondent’s argument, Family Court did not err in applying the conception test to determine petitioner’s standing rather than a “functional” test that would have examined the relationship between petitioner and the child after the child’s birth (Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d at 27, 39 N.Y.S.3d 89, 61 N.E.3d 488). The evidence fully established that the parties planned jointly for the child’s conception, participated jointly in the process of conceiving the child, planned jointly for her birth, and planned to raise her together. Petitioner satisfied her burden to prove by clear and convincing evidence that she and respondent entered into an agreement to conceive the child and raise her as co-parents. Thus, she established her standing to seek custody and parenting time under the conception test without regard to her subsequent relationship with the child.
Commentary
According to some commentators, in the last twenty-five years the de facto parent doctrine has made inroads on parental authority. A growing number of states have given rights to de facto parents to seek custody or visitation, using that term or similar terms such as “in loco parentis,” “psychological parent,” “equitable parent,” and establishment of a “child-parent relationship.” At least twenty-eight states have granted such rights by statute or case law.
