September 16, 2020
Appellate Division, Second Department
Defendants sustained physical abuse of the plaintiff constituted egregious marital fault to be factored into equitable distribution award
Court imputing income must provide a clear record of the source of imputed income, reasons for the imputation, and the resultant calculations.
In
Pilkington v Pilkington, 185 A.D.3d 844,
127 N.Y.S.3d 523, 2020 N.Y. Slip Op. 03931 (2d Dept, 2020) the parties were
married in 2003 and had two children, born in 2006 and 2007, respectively. In
2013, the plaintiff commenced the action for a divorce. After the parties
stipulated to the terms of custody and parental access, they agreed to have the
Supreme Court decide the Afinancial, property and employment matters@
based on their submissions in lieu of a trial. The Appellate Division held that
Athe court may impute income based on the parent=s
employment history, future earning capacity, educational background, or money
received from friends and relatives. However, the court must provide a clear
record of the source of the imputed income, the reasons for the imputation, and
the resultant calculations, It agreed
with the Supreme Court’s determination to impute income of $85,000 to the
plaintiff based, in part, on contributions he received from his fiancée, but
the amount imputed was not supported by the record .It also agreed with the
court’s determination to impute income to the plaintiff based on income he
received from performing side jobs. It also held that based upon the defendant=s
skills and employment experience, and contributions from her family, the court
improvidently exercised its discretion in imputing to her an annual income of
only $25,000. Since the documents submitted by the parties were inadequate to
determine the contributions from the plaintiff=s
fiancée and the average income earned by the plaintiff from performing side
jobs, and the parties were not afforded the opportunity to submit further
documents, the matter was remitted to the Supreme Court to hold a hearing on
the issue of how much income should be imputed to each party, and the
calculation of a new child support obligation thereafter.
The Appellate Division observed that pursuant
to Domestic Relations Law ' 240(1Bb)(c)(7), the court may direct a parent to contribute
to a child=s education. In determining whether to award
educational expenses, the court must consider the circumstances of the case,
the circumstances of the respective parties, the best interests of the
children, and the requirements of justice.
Supreme Court providently exercised its discretion in not requiring the
plaintiff to pay a pro rata share of the parties=
children=s private school tuition. The defendant failed to
submit evidence to establish that the education provided by the public schools
in Florida would be inferior to that provided by Hillel Day School of Boca
Raton, a private religious school, or that the needs of either child would be
better served by their attendance at a private religious school.
September 1, 2020
Executive Order 202.60 continues the modification and suspension of laws relating to the disaster emergency.
The Executive Order extends the provisions tolling
the Statute of Limitations until October 4, 2020. It
also modifies previous executive orders to provide that the tolling of civil
statutes of limitation be lifted as it relates to any action to challenge the
approval by any municipal government or public authority of a construction
project that includes either affordable housing or space for use by
not-for-profit organizations. The EO further states that "The suspension
of Section 30.30 of the Criminal Procedure Law, is hereby modified to require
that speedy trial time limitations remain suspended in a jurisdiction until
such time as petit criminal juries are reconvened in that jurisdiction;
Criminal Procedure Law 170.70 is no longer suspended, and for any appearance
which has been required to be in-person may continue to be conducted virtually
with the consent of the parties."
Appellate Division, Second Department Amends Rules of
Practice
By Administrative
Order issued on July 1, 2020, the Second Department
has amended its local rules of practice to omit the requirement that papers in
relation to motions and original proceedings be filed in both digital and hard
copy format. Rather, all such papers “shall be submitted in digital format,
shall comply with the technical requirements for electronically filed documents
(22 NYCRR
Part 1245, Appendix A), shall be served on
all parties in digital format, and shall be filed by uploading through the
digital portal located on the home page of the Court’s website with proof of
service” (Admin Order
2020-0701). Hard copy submissions are only
required when specifically requested by the Court. This amendment, by which
subdivision (d) was added to section 670.4 of the Second Department’s Rules of
Practice, applies to both NYSCEF matters and matters in which electronic filing
via the NYSCEF system is not mandated. Exemptions are provided for exempt
attorneys and exempt litigants as those terms are defined in the Electronic
Filing Rules of the Appellate Division (22 NYCRR
1245.4), who must be served and must file in hard copy.
Second Department
To find a marital contract unconscionable, two elements must be shown: procedural unconscionability, and substantive unconscionability
In
Cilento v Cilento, --- N.Y.S.3d ----, 2020 WL 4661442, 2020 N.Y. Slip Op. 04453
(2d Dept.,2020) the parties were married on January 20, 1996. In April 2018,
the plaintiff commenced this action for a divorce seeking, inter alia, to
incorporate a stipulation of settlement that the parties had entered into in
August 2017 into the judgment of divorce. The defendant moved to vacate the stipulation on the ground
that it was unconscionable. The Supreme Court denied the defendant’s motion,
and the Appellate Division affirmed. As
relevant to the appeal, the attorney who the defendant retained in connection
with a Family Court proceeding and who he used in the past , when he needed an
accurate Italian translation and understanding of legal documents was the mediator
the parties thereafter selected and each paid to assist them in formulating the
terms of the stipulation after two sessions with him.
Third
Department
Only penalty Family Court may impose for willful violation of a custodial order without a concurrent modification petition pending is a monetary fine and/or imprisonment
In
Matter of Gerard P. v Paula P. --- N.Y.S.3d ----, 2020 WL 4678335, 2020 N.Y.
Slip Op. 04515(3d Dept.,2020) the Appellate Division held that Family Court
erred in dismissing the mother’s
modification petitions without conducting a hearing. In any modification
proceeding, the threshold issue is whether there has been a change in
circumstances since entry of the prior custody order that warrants a review of
the issue of custody to ensure the continued best interests of the children. An
evidentiary hearing is generally necessary and should 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 children’s
best interests.
The Appellate Division found that Family Court did not,
as required on a motion to dismiss,
liberally construe the mother’s pro se petitions, accept her allegations
as true, afford her the benefit of every possible inference or resolve
credibility issues in her favor when determining the motions to dismiss. Family
Court improperly made factual findings and credibility determinations,
inappropriately resolving the conflicting versions of events, as set forth in
the mother’s petitions and the father’s supporting affidavits, against the
mother and in favor of the father. Such factual findings and credibility
assessments have no place in an order resolving a motion to dismiss for failure
to state a claim.
Supreme Court
Permission to
serve defendant by an alternative method (see CPLR 308(5)) FedEx International
Economy mail granted
In Sweet-Martinez v Martinez, --- N.Y.S.3d ----, 2020 WL
4590510, 2020 N.Y. Slip Op. 20195 (Sup Ct., 2020) plaintiffs ex parte motion
for permission to serve defendant via an alternative method (see CPLR 308 [5]),
namely FedEx International Economy mail to his last known address in Mexico was
granted. The parties were married on November 17, 2007. Defendant was deported to Mexico on March 8, 2011.
Plaintiff commenced this action for a no-fault divorce on December 28, 2019
(see Domestic Relations Law § 170 [7]). Plaintiff argued that service upon defendant by mail was
permissible under article 10 (a) of the Hague Convention on Service Abroad,
which provides: “Provided the State of destination does not object, the present
Convention shall not interfere with the freedom to send judicial documents, by
postal channels, directly to persons abroad.” The Court observed that although
there is no case law on this precise issue in New York, other courts have found
that Mexico has not outright objected to article 10 (a) of the Hague Convention
permitting service of process by mail (see e.g. Intl. Transactions, Ltd v
Embotelladora Agral Regionmontana SA de CV, 277 F Supp 2d 654, 663 [ND TX
2002]; Matter of Root, 185 Wash App 1009, 2014 WL 7341131, *9 [Washington Ct
App 2014]). To that end, the Court found that service upon defendant via FedEx
International Economy mail to his last known address in Mexico was permissible
— under both CPLR 308 (5) and article 10 (a) of the Hague Convention.
August 16, 2020
Appellate Division, Second Department
Children failed to receive meaningful assistance of counsel where AFC substituted judgment and took position contrary to wishes of children.
The
parties entered into a so ordered stipulation of settlement dated October 17,
2016 where they agreed to joint legal
custody of the children, with residential custody to the defendant and parental
access to the plaintiff. In April 2017, prior to the entry of a judgment of
divorce, the plaintiff moved, inter alia, to modify the stipulation so as to
award him residential custody of the children. While the plaintiff=s
motion was pending, the defendant filed a family offense petition dated
November 21, 2017, in the Family Court, alleging that the plaintiff strangled
the youngest child. The Family Court issued a temporary order of protection
against the plaintiff, which, inter alia, directed him to stay away from the
children. The plaintiff successfully moved to transfer the family offense
proceeding to the Supreme Court. After an in camera interview with the
children, the Supreme Court dismissed the family offense petition, vacated the
temporary order of protection, and directed overnight parental access with the
plaintiff. After a hearing, the Supreme Court granted the plaintiff=s
motion to modify the stipulation to award him residential custody of the
children.
The
Appellate Division observed that an AFC is required to Azealously
advocate the child=s position. The Rules of the Chief Jude state that Athe
[AFC] should be directed by the wishes of the child, even if the [AFC] believes
that what the child wants is not in the child=s
best interests= and that the [AFC] should explain fully the options
available to the child, and may recommend to the child a course of action that
in the [AFC]>s view would best promote the child=s
interests=@ (22 NYCRR 7.2[d][2]). An AFC would be justified in
substituting judgment and advocating a position that is contrary to the child=s
wishes only if the AFC is Aconvinced either that the child lacks the capacity for
knowing, voluntary and considered judgment, or that following the child=s
wishes is likely to result in a substantial risk of imminent serious harm to
the child@ (22 NYCRR 7.2[d][3]. AIn
those situations the attorney must still inform the court of the child=s
articulated wishes if the child wants the attorney to do so=@( 22 NYCRR 7.2[d][3]). The Appellate Division observed that the role of the attorney for
the child is to represent the child=s wishes, not to give the opinion as the child=s
attorney as to his [or her] best interests.
It found that the AFC advised the Supreme Court that the children wanted
to spend daytime with the plaintiff but they wanted to spend overnights with
the defendant. They wanted residential custody to remain with the defendant.
The AFC informed the court of her clients= position at the beginning of the hearing.
Nevertheless, the AFC=s representation was in direct contravention of her
clients= stated parameters. Throughout the course of the
proceedings, she failed to advocate on behalf of her clients, who were 13 and
11 years old at the time of the hearing, and who were both on the high honor
roll and involved in extracurricular activities. The AFC actively pursued a
course of litigation aimed at opposing their stated positions. She joined the
plaintiff in opposing the introduction of evidence and witnesses in support of
the defendant=s case. When the defendant sought to introduce
evidence in defense of the plaintiff=s allegations that the defendant provided the children
with unnecessary medical care, the AFC joined the plaintiff in opposing the
introduction of the defendant=s evidence. The AFC also opposed the introduction of
evidence that may have supported one child=s claim that the plaintiff attempted to strangle her.
The AFC objected to the testimony of school personnel for the purpose of
explaining the children=s seemingly excessive school absences. The AFC=s
questions of the plaintiff during cross-examination were designed to elicit
testimony in support of the plaintiff=s case, in opposition to her clients=
wishes. Her questions of the psychologist chosen by the parties to provide
therapeutic parental access, were aimed at supporting the plaintiff in his
quest for residential custody. The AFC objected to the introduction of
witnesses and evidence favorable to the defendant=s
case, but she did not make similar objections to the plaintiff=s
evidence. Upon successfully arguing to preclude the defendant=s
proffered evidence, the AFC proceeded to use the defendant=s
lack of evidence to support the plaintiff=s positions. She also failed to object to the Supreme
Court’s decision to limit the amount of time for the defendant to present her
case. She also failed to take an active role in the proceedings by presenting
evidence and witnesses on behalf of her clients.
The
Appellate Division held that AFC=s failure to support her clients=
position was particularly troubling due to the allegations of domestic violence
made by both the defendant and the children.
Nevertheless, she continued to argue in support of residential custody
to the plaintiff, in opposition to the wishes of her clients. The record
established that neither of the exceptions to the rules regarding the AFC=s
duty were present here. There was no
finding that the children lacked the capacity for knowing, voluntary, and
considered judgment (see 22 NYCRR 7.2[d][3]). Hence, the children failed to
receive meaningful assistance of counsel. Under these circumstances, it was
improper for the AFC to substitute judgment and take a position that was
contrary to the wishes of the children.
Supreme Court
Service of summons authorized under Hague Convention on Service Abroad by FedEx International Economy mail to last known address in Mexico.
In Sweet‑Martinez v Martinez, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL
4590510, 2020 N.Y. Slip Op. 20195 (Sup Ct., 2020) plaintiffs ex parte motion
for permission to serve defendant via an alternative method (see CPLR 308 [5]),
namely FedEx International Economy mail to his last known address in Mexico was
granted. The parties were married on November 17, 2007. Defendant was deported to Mexico on March 8, 2011.
Plaintiff commenced this action for a no‑fault divorce on December 28, 2019
(see Domestic Relations Law ' 170 [7]). Plaintiff argued that service upon defendant by mail was permissible
under article 10 (a) of the Hague Convention on Service Abroad, which provides:
AProvided the
State of destination does not object, the present Convention shall not
interfere with the freedom to send judicial documents, by postal channels,
directly to persons abroad.@ The Court observed that although there
is no case law on this precise issue in New York, other courts have found that
Mexico has not outright objected to article 10 (a) of the Hague Convention
permitting service of process by mail (see e.g. Intl. Transactions, Ltd v
Embotelladora Agral Regionmontana SA de CV, 277 F Supp 2d 654, 663 [ND TX
2002]; Matter of Root, 185 Wash App 1009, 2014 WL 7341131, *9 [Washington Ct
App 2014]). To that end, the Court found that service upon defendant via FedEx
International Economy mail to his last known address in Mexico was permissible C under both
CPLR 308 (5) and article 10 (a) of the Hague Convention.
Family Court
Family Offense Proceeding Dismissed on grounds of Diplomatic Immunity where Respondent and Petitioner were immune from the civil process
In Matter of F.G.O.v. B.G.,.‑‑‑
N.Y.S.3d ‑‑‑‑, 2020 WL 4379526, 2020 N.Y. Slip Op. 20184 (Fam Ct, 2020)
Petitioner, who was the spouse of the Respondent sought a final order of
protection. Family Court granted Respondents motion to dismiss on the basis of Respondent=s immunity
pursuant to the Vienna Convention on Diplomatic Relations (1961). Respondent
stated that he was a diplomatic agent of the Permanent Mission of the Republic
of Congo to the United Nations. He submitted to the Court copy of a document
issued by the Permanent Mission of the Republic of Congo to the United Nations,
dated October 9, 2019, which identified Respondent as a diplomatic agent; a
document from the United States Mission to the United Nations which stated that
the official records of the United States Mission indicated that Respondent was
Anotified by the
Permanent Mission of the Republic of the Congo to the United Nations in New
York as First Secretary on June 20, 2016 and continues to serve in that
capacity; and a United Nations Diplomatic Identification Card with his name,
personal information and photograph, issued by the U.S. Department of State,
which expired on June 30, 2022. The back of the card explicitly stated that the
bearer of the card Aenjoys immunity from criminal
jurisdiction.@ The Court held
that the documentary evidence submitted, particularly the Diplomatic
Identification Card, unlike an affidavit or deposition testimony, is Aessentially
undeniable@ and may
conclusively establish a defense to the proceeding as a matter of law.
Turning to the substance of the
defense, the Court observed that the
Vienna Convention states that a Adiplomatic
agent shall enjoy immunity from the civil and administrative jurisdiction [of
the receiving State]@ (Vienna Convention at art. 31.1).
Although there are exceptions to this immunity involving, inter alia, property
in the receiving state and professional or commercial activity outside the
scope of diplomatic functions, none of the exceptions are applicable here. In
other words, apart from inapplicable exceptions, a diplomatic agent has
absolute immunity from civil jurisdiction. The court noted that in Matter of
Terrence K. (Lydia K.), 135 A.D.2d 857, 522 N.Y.S.2d 949 [2d Dept. 1987], where
the Second Department found that Family Court had properly dismissed the child
abuse proceeding because the respondent parents were entitled to diplomatic
immunity pursuant to the Vienna Convention. The father was an attaché of the
Mission of the Republic of Zimbabwe to the United Nations. The Court noted the
record included a certificate stating the father was accepted by the United
States Government for inclusion on the list of Members of Permanent Missions
Entitled to Diplomatic Privileges and Immunities, and that the mother and child
were registered as members of the household and thus share in the privileges
and immunities of the father. The Court ultimately found that this evidence Aconclusively
establishes that the father and his family, including the child, are immune
from the civil process of the courts of this State.@ Family Court
held that once diplomatic status is sufficiently established, as here, and no
exceptions apply, the Court was is bound to follow the Vienna Convention and
controlling precedent (see Reinoso v. Bragg, 28 Misc. 3d 1235(A), 2010 WL
3607482 [Sup. Ct., New York County 2010]). The proceeding was dismissed as the
Respondent and Petitioner were immune from the civil process of the courts of
this State.
