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Wednesday, February 03, 2021

Recent Decisions and Legislation February 1, 2021

 

February 1, 2021

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Appellate Division, First Department


Appellate Divison affirms Charging Lien based upon account stated where no objection to invoices during year long representation

 

            In Trafelet v Cipolla & Co., LLC, --- N.Y.S.3d ----, 2021 WL 189200, 2021 N.Y. Slip Op. 00274 (1st Dept.,2021) the Appellate Division affirmed an order which granted Buchanan Ingersoll & Rooney PC’s motion to fix the amount of its charging lien against plaintiff based upon an account stated, Nonparty respondent Buchanan Ingersoll & Rooney PC (BIR) submitted proof that it entered into a retainer agreement with plaintiff and sent her regular invoices to which she did not object during the course of the firm’s year-long engagement. Her subsequent counsel’s vague and noncommittal statement in court questioning the propriety of BIR’s bills was insufficient to constitute timely objection to BIR’s account stated claim.

           

 

 

           

 

 

Appellate Division, Second Department

 

Spouse seeking to set aside postnuptial agreement bears the burden to establish a fact-based, particularized inequality. Motion to set aside an agreement between spouses may be denied without a hearing if the agreement is fair on its face.     

 

            In Hershkowitz v Levy, --- N.Y.S.3d ----, 2021 WL 191304, 2021 N.Y. Slip Op. 00299 (2d Dept.,2021) an action for a divorce  the Appellate Division affirmed Supreme Court’s determination to deny defendant’s motion to set aside the postnuptial agreement on the grounds of unconscionability, overreaching, breach of fiduciary duty, fraud, and lack of consideration.

 

           The Appellate Division held that a  spouse seeking to set aside a postnuptial agreement initially bears the burden to establish a fact-based, particularized inequality. Where this initial burden is satisfied, a proponent of a postnuptial agreement suffers the shift in burden to disprove fraud or overreaching.

 

            The Appellate Division noted that postnuptial agreements are contracts which require consideration. Contrary to the defendant’s contention, the parties’ postnuptial agreement did not lack consideration. Both parties gave up rights to the other’s compensation in exchange for keeping their own. Both parties waived their right to maintenance from the other party. As such, the defendant’s contention that the postnuptial agreement should be set aside for lack of consideration also failed.

 

            The Appellate Division held that a motion to set aside an agreement between spouses may be denied without a hearing if the agreement is fair on its face. Here, as the postnuptial agreement was fair on its face and free from any fraud or overreaching, no hearing was necessary prior to ruling on the defendant’s motion.

 

 

Emancipation is automatic when child enters  military service

 

    In Beck v Beck, --- N.Y.S.3d ----, 2021 WL 125068, 2021 N.Y. Slip Op. 00222 (3  Dept, 2021) the Appellate Division held that a child is deemed emancipated if he or  she enters the military service. Emancipation is automatic when the child enters the       military service.

 

 

To prevail claim of ineffective assistance of counsel, appellant must demonstrate absence of strategic or other legitimate explanations’ for counsel’s alleged shortcomings.

 

       In Matter of Cook v Sierra, --- N.Y.S.3d ----, 2021 WL 115878 (Mem), 2021 N.Y. Slip Op. 00170(2d Dept.,2021) the Appellate Division held that the father was  not deprived of the effective assistance of counsel. The statutory right to counsel under Family Court Act § 262 affords protections equivalent to the constitutional standard of effective assistance of counsel afforded to defendants in criminal proceedings. An attorney representing a client is entitled to make ‘strategic and tactical decisions concerning the conduct of trials. What constitutes effective assistance is not and cannot be fixed with precision, but varies according to the particular circumstances of each case. (Matter of Adam M.M. [Sophia M.], 179 A.D.3d at 802, quoting People v. Rivera, 71 N.Y.2d 705, 708,). To prevail on a claim of ineffective assistance of counsel, it is incumbent on the appellant to demonstrate the absence of strategic or other legitimate explanations’ for counsel’s alleged shortcomings. Here, the father failed to establish the absence of strategic or other legitimate explanations for his counsel’s alleged shortcomings.

 

 

Sound and substantial basis is standard of review FCA § 1028(a) application for the return of a child

 

In Matter of Iven J.E., 2021 WL 191255 (2d Dept.,2021) the Appellate Division held that an application pursuant to Family Court Act § 1028(a) for the return of a child who has been temporarily removed shall be granted unless the court finds that ‘the return presents an imminent risk to the child’s life or health. In making its determination, the court must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal. Ultimately, the Family Court must balance that risk against the harm removal might bring, and it must determine factually which course is in the child’s best interests. On appeal, the Court must assess whether the record provides a sound and substantial basis to support the Family Court’s determination.

 

 

Factors to be considered in computing Counsel Fee award under FCA §438

 

            In Abizadeh v Abizadeh, --- N.Y.S.3d ----, 2021 WL 191276 (Mem), 2021 N.Y. Slip Op. 00308 (2d Dept.,2012) the Appellate Division affirmed an order which denied the fathers application for counsel fees in this family court child support proceeding. It held :”The factors to be considered in computing an appropriate award include the parties’ ability to pay, the merits of the parties’ positions, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of counsel’s performance and the fees under the circumstances.

 

 

Appellate Division, Third Department

 

 

Jurisdiction of Neglect Proceedings including ICPC proceedings is governed by the UCCJEA

 

In Matter of Diana XX v Nicole YY, --- N.Y.S.3d ----, 2021 WL 202709, 2021 N.Y. Slip Op. 00352(3d Dept.,2021) the Appellate Division held that jurisdiction over a neglect proceeding does not depend upon the situs of the neglect. Jurisdiction is governed by the UCCJEA. The UCCJEA vests Family Court with jurisdiction over neglect proceedings when, inter alia,, New York “is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state” (Domestic Relations Law § 76[1][a]). Under the UCCJEA, the “home state” is defined as “the state in which [the] child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement” of the proceeding (Domestic Relations Law § 75–a [7] ).  Here, despite the absence of a hearing or evidence on the matter, there was no dispute that the children and their respective parents/custodian had lived in New York for at least six consecutive months prior to the April 2019 commencement of the neglect proceeding in Tennessee, thereby making New York the children’s home state (see Domestic Relations Law §§ 75–a [7]; 76[1][a] ).Thus, pursuant to the UCCJEA, Family Court had jurisdiction over the neglect proceeding commenced in Tennessee (see Domestic Relations Law § 76[1][a] ). Family Court, however, had the discretion to decline jurisdiction if it determined – upon consideration of eight statutorily-enumerated factors – that it was “an inconvenient forum under the circumstances and that a court of another state [was] a more appropriate forum” (Domestic Relations Law § 76–f [1], [2] ).(Domestic Relations Law § 76–f [2][a]-[h] ).

 

            The Appellate Division found that Family Court did not engage in the requisite consideration of the statutory factors before declining to accept jurisdiction from the Tennessee court. It reviewed the record and found that Family Court improperly declined to accept jurisdiction from Tennessee. It further found that Family Court erred in vacating a December 2019 amended order of custody and dismissing both of petitioner’s Family Ct Act article 6 petitions.  Family Court did so without conducting a hearing or taking evidence on the issues and erroneously relied upon hearsay statements made by DSS regarding a purported ICPC report. Inasmuch as Family Court did not afford petitioner adequate notice and opportunity to be heard on the matters, Family Court’s vacatur of the December 2019 amended order and dismissal of the petitions raised serious due process concerns and, therefore, had to be reversed.

 

January 16, 2021

 

Appellate Division, First Department

 

 

Extreme Hardship established by disbarred attorney despite proof of his former lavish lifestyle where expenditures were funded by disability payments which came to an undisputed end

 

In Palmer v Spadone-Palmer --- N.Y.S.3d ----, 2021 WL 96220 (1st Dept.,2020) the Appellate Division observed that an  order or judgment incorporating an agreement providing for maintenance will not be modified without a showing of extreme hardship (see Domestic Relations Law § 236[B][9][b][1]). Here, the court properly found that the husband would suffer extreme hardship if held to the maintenance obligations under the settlement agreement. The wife’s primary argument was that the husband’s claims of extreme hardship were undermined by the proof of his lavish lifestyle, including significant discretionary expenditures for himself and his then-girlfriend. The wife made a compelling presentation that the husband liberally indulged in this regard, but did not show reason to question that, as the trial court observed, the expenditures were funded by disability payments he received from April 2015 through March 2017, a source of funding that came to an undisputed end. As the court recognized, the husband’s reckless spending of these amounts was unjustifiable, and should have been used towards the support of his wife and children. However, most relevant to the hardship analysis, because these payments came to an end, they were not illustrative of the husband’s overall financial situation, which considerably worsened from where it had been at the time of the settlement agreement. The wife argued the husband did not make good faith efforts to seek new employment after termination from Matlin Patterson, but ignored by virtue of his guilty plea, he was disbarred and precluded from possessing any financial series licenses for 10 years, and his options were accordingly limited.

 

 

Award of  interim counsel fees vacated where  award was not intended for defendant to “carry on or defend the action or proceeding,” but as a form of sanction against the husband

 

 In Kass v Machles, --- N.Y.S.3d ----, 2021 WL 54901 (Mem), 2021 N.Y. Slip Op. 00089 (1st Dept.,2021) Supreme Court, inter alia,  confirmed the report of the Special Referee to the extent of adjudging plaintiff in civil contempt for his failure to comply with the subpoena at issue, and awarded defendant counsel fee. The Appellate Division vacated the adjudication of contempt and the interim counsel fee award. Defendant’s motion seeking to hold plaintiff in contempt was not referred to the Referee, and, accordingly, the Referee’s finding on that issue was not a proper basis for the court’s adjudication of contempt against plaintiff. The court’s subsequent nunc pro tunc order referring the contempt motion to the Referee to hear and report was insufficient to cure the jurisdictional defect. To find otherwise would impermissibly obviate the statutory requirements of the CPLR.

 

            The Appellate Division vacated the award of interim counsel fees under Domestic Relations Law § 237(a) since the award was not intended for defendant to “carry on or defend the action or proceeding,” but as a form of sanction against the husband, without any consideration by the court of the parties’ respective financial circumstances.

 

 

Appellate Division, Second Department

 

 

In considering  whether grandparent visitation is in the children’s best interests, a number of factors are considered, including the attorney for the children’s assessment and the children’s wishes

 

 

            In Matter of Sandra R v Matthew R., 2020 WL 7775398 (3d Dept.,2020) the Appellate Division, Third Department reiterated the rule that in determining a grandparent visitation application  Family Court is required to undertake a two-part inquiry. First, the court must find that the grandmother has standing to seek visitation. Once standing is established, then the court must determine if visitation with the grandmother is in the best interests of the children. In considering  whether visitation is in the children’s best interests, a number of factors are considered, including the nature and extent of the existing relationship between the grandparent and children, the basis and reasonableness of the parent’s objections, the grandparent’s nurturing skills and attitude toward the parents, the attorney for the children’s assessment and the children’s wishes (Matter of Susan II. v. Laura JJ., 176 AD3d 1325, 1327 [2019].

 

Causes of action to set aside agreement on grounds of fraud, and on grounds of duress, coercion, or overreaching sustained

 

            In Heinemann v Heinemann, 2020 WL 7760324 (2d Dept.,2020) an action to set aside a separation agreement the Appellate Division affirmed an order which denied defendants cross motion to dismiss the complaint on the ground of fraud. The defendant failed to conclusively demonstrate that the plaintiff had no cognizable cause of action alleging fraud. The elements of a cause of action sounding in fraud are a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation, and damages. The complaint alleged that the plaintiff was represented in the divorce action by an attorney selected and paid for by the defendant, and that the plaintiff was advised by his attorney that he could request a change to only one provision in the stipulation. The complaint further alleged that after the plaintiff signed the stipulation, the defendant made material changes to various provisions governing, inter alia, maintenance, child support, custody, and parental access, and that the stipulation filed with the court was not the same stipulation that he had signed. The complaint also alleged that the plaintiff did not receive “any final divorce documents” from his attorney, and that he did not learn of the changes made to the stipulation by the defendant until after the defendant commenced an enforcement proceeding in the Family Court. The plaintiff attached to the complaint a copy of the stipulation he claimed to have signed. Under these circumstances, it agreed with the court’s determination to deny the motion to dismiss the first cause of action, seeking to set aside the stipulation on the ground of fraud.

 

            The Appellate Division also agreed with the Supreme Court’s determination to deny the defendant’s cross motion to dismiss the third cause of action, seeking to set aside the stipulation on the grounds of duress, coercion, or overreaching. A contract is voidable on the ground of duress when it is established that the party making the claim was forced to agree to it by means of a wrongful threat precluding the exercise of his or her free will. To rescind a separation agreement on the ground of overreaching, a plaintiff must demonstrate both overreaching and unfairness. No actual fraud need be shown, for relief will be granted if the settlement is manifestly unfair to a spouse because of the other’s overreaching in its execution. Courts may examine the terms of the agreement as well as the surrounding circumstances to ascertain whether there has been overreaching. However, generally, if the execution of the agreement is fair, no further inquiry will be made. The allegations in the complaint that the defendant threatened the plaintiff that he would never see the children again if he did not agree to her proposed terms, that the defendant had the plaintiff arrested and threatened to pay his bail only if he agreed to her proposed terms, and that the defendant exercised her position of financial superiority to the plaintiff’s disadvantage were sufficient to allege a cognizable cause of action alleging duress, coercion, or overreaching.

 

 

 

In a paternity proceeding, personal jurisdiction over a nonresident putative father may be established pursuant to Family Court Act § 580-201.    

 

       In Matter of Joyce M.M v Robert J.G, 187 A.D.3d 1610, 134 N.Y.S.3d 121, 2020 N.Y. Slip Op. 05616 (4th Dept.,2020) Petitioner, the maternal grandmother and custodian of the  child, filed a petition for paternity seeking a determination that respondent was the biological father of the child and alleging, inter alia, that respondent had sexual intercourse with the mother at the time of the child’s conception. The Court granted the motion of Respondent, a resident of North Carolina, to dismiss the petition the grounds that Family Court lacked personal jurisdiction over him. The Appellate Division held that the court erred in granting respondent’s motion based upon Family Court Act § 519, which was enacted to provide exceptions to the common-law rule that paternity proceedings customarily abate upon the unavailability of the putative father. It does not prevent personal jurisdiction from being established over an available party. In a paternity proceeding, personal jurisdiction over a nonresident putative father may be established pursuant to Family Court Act § 580-201. Petitioner, however, admittedly failed to allege in her petition that respondent engaged in sexual intercourse with the mother in New York State at the time of conception, or that he had any other relevant ties to New York State, and no other grounds for jurisdiction apply (see Family Ct. Act § 580-201 [6], [8]). Under the circumstances of this case, the court should have granted the motion on the alternative ground that petitioner failed to state a cause of action predicated upon respondent’s sexual intercourse with the mother in New York State. Inasmuch as such a dismissal is not on the merits, however, it held that the petition should be dismissed without prejudice and modified the order accordingly.

 

 

January 1, 2021

 

 

All recent Second Circuit and Circuit Courts of Appeal Hague Convention International Child abduction cases decided during 2020 are now posted on our website current through January 1, 2121 (Click on link to visit nysdivorce.com and scroll down)

 

 

Laws of 2020

 

Laws of 2020, Ch 376 effective December 23, 2020 amended the Judiciary Law to require reason for recusal

 

Laws of 2020, Ch 376 effective December 23, 2020 amended the Judiciary Law to add a new section 9. It provides that any judge who recuses himself  or  herself  from sitting  in  or  taking  any  part  in the decision of an action, claim,  matter, motion or proceeding must state the reason for  the  recusal  in  writing  or on the record. However, a judge is not required to provide a reason for recusal when the reason may result  in embarrassment, or is of a personal nature, affecting the judge  or  a   person  related to the judge within the sixth degree by consanguinity or    affinity.

 

Laws of 2020 , Ch 346 amended Family Court Act §1055 (e) and Family Court Act §1091

 

Under existing law, young adults can return to foster care when they have no alternative and agree to participate in a vocational or educational program, upon the approval of the Family Court.

 

Family Court Act §1055 (e)  was amended by Laws of 2020, Ch 346, effective December 15, 2020 to add a subdivision (ii) to allow a former foster care youth to re-enter the foster care system without having to file a motion with the family court during the state of emergency declared pursuant to executive order 202 of 2020 in response to the novel coronavirus (COVID-19) pandemic. The commissioner of the local social services department is required to consider the same factors that the court is required to consider when determining the appropriateness of the former foster care youth reentering the foster care system. Any requirement to enroll in vocational or education program when a former foster care youth reenters the system is  waived during the time of the state of emergency. This section clarifies that to the extent a former foster care youth is denied the request to return to the custody of the local commissioner of social services, or other board or department authorized to receive children as public charges, that the youth would still have the opportunity to file a motion as authorized pursuant to family court act 1092. (See 2020 NY Legis Memo 346)

 

 

Family Court Act §1091

 

The opening paragraph of Family Court Act §1091 was amended by Laws of 2020, Ch 346, effective December 15, 2020 to add a provision which requires that during the state of emergency declared pursuant to executive order 202 of 2020 in response to the novel coronavirus (COVID-19) pandemic that former foster care youth can re-enter the foster care system without making a motion to the court, and that any requirement to enroll and

attend an educational or vocational program will be waived for the dura-

tion of the state of emergency. This section also clarifies, subsequent to former foster youth's return to placement without making a motion, as authorized under this section during the COVID-19 state of emergency, that nothing in this section would prohibit a local social service district from filing a motion for requisite findings needed to claim reimbursement under Title IV-E of the Federal Social Security Act to support the youth's care, and the family court shall hear and determine such motions. (See 2020 NY Legis Memo 346)

 

 

 

Appellate Division, First Department

 

 

Joint legal custody not appropriate where one parent has been responsible for major decisions about the child with little input or interest from the other

 

            In Markis L v Jacquelyn C, --- N.Y.S.3d ----, 2020 WL 7391510 (Mem), 2020 N.Y. Slip Op. 07672 (1st Dept.,2020) the Appellate Division affirmed on order which modified the 2007 custody award to the mother to award the father sole legal custody. It held that joint legal custody is not appropriate where the parties are unable to coparent, or where one parent has been responsible for major decisions about the child with little input or interest from the other (Matter of Johanna Del C.T. v. Gregorio A.L., 178 A.D.3d 430, 431, 111 N.Y.S.3d 175 [1st Dept. 2019]). The father credibly testified that the mother never sought to discuss the child’s education or medical care with him, she was increasingly incapable of meeting even the child’s basic needs without his assistance or assistance by the maternal grandmother, and that she sometimes lashed out at him, including physically. The father also credibly testified that he continued to encourage the child to spend time with the mother. The mother admitted that the father had been responsible for the child’s medical care for the past year, could not recall the address of the child’s school or the names of her teachers, and denied the impact of her mental illness on the child. Under these circumstances, the award of sole legal custody to the father had a sound and substantial basis in the record.

 

 

Appellate Division, Second Department

 

 

 Circumstances of contemporary daily interactions between men and women, warrants that the “opportunity” element of proof of adultery must be interpreted to mean more that mere “proximity,” but must instead necessarily mean “proximity plus.”

            In Agulnick v Agulnick, --- N.Y.S.3d ----, 2020 WL 7234017, 2020 N.Y. Slip Op. 07335) the parties were married in 2004. The husband commenced an action for divorce on October 3, 2018, alleging an irretrievable breakdown of the marriage. The verified amended answer contained a counterclaim for divorce on the ground of adultery under Domestic Relations Law § 170(4). The counterclaim alleged that from approximately March of 2014 and thereafter the husband openly engaged in an adulterous relationship with R.L., who slept in the marital home, vacationed with the husband in Florida, resided with him in another marital home in Florida, and accompanied him at social settings. The counterclaim alleged that the husband’s activities included sexual intercourse and was without the wife’s consent, connivance, privity, or procurement. The husband denied all allegations of adulterous behavior in a reply dated February 1, 2019.The husband moved, inter alia, for summary judgment dismissing that counterclaim under CPLR 3212. In support, the husband proffered an affidavit in which he stated that he “never engaged in a sexual relationship of any kind or nature with” R.L., who he identified by full name in the papers as the family babysitter. The husband further averred that the presence of R.L. in the parties’ homes was “at all times ... in a professional working capacity, approved and initiated by [the wife], wherein [R.L.] supervises our children.” The motion was also supported by an affidavit of R.L., where she identified herself as the babysitter and caretaker of the parties’ children, and stated that she “never engaged in a sexual relationship of any kind or nature with” the husband, and that “[a]ny and all times I have been in the [husband]’s presence have been in a professional working capacity wherein I supervises [sic] the parties’ children.” In opposition, the wife asserted in an affidavit that the husband has “shown an inclination and desire to commit adultery” by virtue of events that had admittedly occurred over a decade earlier. She also stated that the husband had the opportunity to commit adultery, as R.L. had vacationed with him during the marriage, spent a night at the marital residence and at a vacation home while the husband was present, and accompanied the husband at social functions. In reply, the husband and R.L. each provided affidavits in further support of summary judgment dismissing the adultery counterclaim. Both averred that R.L.’s overnight stays at the marital homes and on vacation were always in a babysitter capacity with the children present, that R.L. slept in a room at the marital home assigned to her by the wife, and that R.L. always attended any social events in a babysitter capacity with the wife and children present. Supreme Court denied the husband’s motion for summary judgment dismissing the adultery counterclaim. The court determined that the husband’s various submissions denying a sexual relationship with R.L. were “conclusory and self-serving,” and, failed to meet his prima facie burden on summary judgment.

 

            The Appellate Division reversed.  Justice Dillon noted that allegations of adultery present unique issues of proof. The conduct is oftentimes clandestine and out of public view, and proving it in such instances must depend upon circumstantial evidence. Recognizing this, decisional authority has held that adultery may be circumstantially proven by means of a three-part test consisting of (1) a lascivious desire, and (2) the opportunity to gratify the desire, and (3) acting upon the desire. Other authorities similarly summarize the three-part test as involving inclination, opportunity, and intent. The act itself must also meet the requirements of Domestic Relations Law § 170(4), which defines adultery “as the commission of an act of sexual intercourse, [or other] sexual conduct, voluntarily performed by [a spouse], with a person other than the [other spouse] after the [spouses’] marriage.” The case law that exists regarding adultery is restricted to trial judgments and appeals for much of the past century and more.

 

            The Court observed that the circumstantial evidence elements for adultery, consisting of lascivious desire, opportunity, and intent, date back to a time when women were not as routinely present in workplaces as they are now. Currently, men and women work side-by-side at the great majority of workplaces. They work in the same locations, attend meetings, share lunch rooms, participate in professional events, interact in social, political, religious, and charitable activities, exercise at gyms, and fly on airplanes together to faraway seminars and business trips. In addition, certain employees may reside at their employers’ homes including au pairs, household help, and home aides. The Court held that under the circumstances of contemporary daily interactions between men and women, the “opportunity” for infidelity cannot be interpreted to mean mere “proximity,” but must instead necessarily mean “proximity plus.” The “plus” need not be objective or irrefutable evidence. Instead, it may be facts or evidence from which reasonable inferences may be drawn, beyond the mere proximity of two people themselves. Proximity may be evidence sufficient to defeat summary judgment if accompanied by something more, such as, a hotel receipt for two, plane tickets for two to a particular destination deviating from the norm, potentially incriminating or suspicious e-mails or other writings, frequent get-togethers in non-professional settings, flirtatious behavior, or a suspicious conversation overheard by a witness. Such facts or evidence, beyond the mere temporal proximity of two persons, may permit an inference that a party’s “acts are more consistent with guilt than with innocence” (Trumpet v. Trumpet, 215 N.Y.S.2d 921, 924 [Sup. Ct., Kings County] ), and warrant the denial of summary judgment sought by the party accused of adulterous behavior.

 

            The Court found that the husband met his prima facie burden of establishing his entitlement to summary judgment dismissing the wife’s counterclaim alleging adultery (see Westervelt v. Westervelt, 26 N.Y.2d 865, 309 N.Y.S.2d 604, 258 N.E.2d 98 [two persons living together in one-family household and their social appearances together is insufficient circumstantial evidence to establish adultery]. In his affidavit, the husband stated that he “never engaged in a sexual relationship of any kind or nature with” R.L, and that R.L.’s presence in his various homes was “at all times ... in a professional working capacity.” Although the husband’s affidavit failed to address conduct alleged with R.L. while on vacation and at social events, R.L.’s affidavit, proffered by the husband in support of his motion, did address such conduct. R.L. identified herself in her affidavit as the babysitter for the parties’ children, denied “a sexual relationship of any kind or nature” with the husband, and states that she was in a professional working capacity at “[a]ny and all times ... in the [husband]’s presence.” R.L.’s affidavit is more expansive and all-encompassing than the husband’s affidavit to the extent that her denial of sexual conduct at “any and all times” necessarily extends beyond the husband’s homes to other settings, such as any vacation trip taken by members of the family and social occasions that R.L. attended. As to all of those occasions, R.L. explained that she was present to supervise the parties’ children and that she performed that job during those occasions. The court disagreed with the Supreme Court that the husband’s evidence in support of summary judgment dismissing the adultery counterclaim was conclusory and self-serving. The husband’s affidavit and R.L.’s separate affidavit contained specific averments which, read together, corroborate each other and satisfy his prima facie burden

           

            The Court rejected the husbands argument that the wife’s affidavit should not be considered in opposition to summary judgment dismissing the adultery counterclaim. Because CPLR 4502(a) statutorily disqualifies a spouse from testifying against the other spouse in an action grounded upon adultery, except to prove the marriage, disprove the adultery, or disprove the defense after evidence has been introduced tending to prove such defense (see CPLR 4502[a]). The Court held that contrary to the husband’s contentions, the wife’s affidavit in opposition to summary judgment may be properly considered, and had been considered, as it was submitted to oppose the husband’s own evidence that the adultery with R.L. had never occurred (cf. Tallent v. Tallent, 22 A.D.2d 988, 989, 254 N.Y.S.2d 722).

 

 

In absence of custody decision setting forth findings of fact and reasoning, appropriate scope of appellate review is de novo where record sufficient to permit review

 

In  Matter of Hreat v Hreat,--- N.Y.S.3d ----, 2020 WL 7379701 (Mem), 2020 N.Y. Slip Op. 07572 (2d Dept.,2020) a custody matter,  the Appellate Division held that findings of the hearing court  which have a sound and substantial basis in the record are generally entitled to great deference on appeal. However, inherent in the proposition that a reviewing court will give deference to the findings made by the hearing court is that the hearing court issued either a written or oral decision setting forth its findings of fact and conclusions of law. (CPLR 4213[b]). In the absence of a decision, orally or in writing, setting forth the findings of fact and reasoning for the Supreme Court’s determination, the appropriate scope of appellate review is de novo where the record is sufficiently complete to permit such review (see Matter of Newton v. McFarlane, 174 A.D.3d at 79, 103 N.Y.S.3d 445).

 

 

Due diligence requirement of CPLR 308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received

 

            In Matter of Ferrera v Serrano, --- N.Y.S.3d ----, 2020 WL 7379716, 2020 N.Y. Slip Op. 07567 (2d Dept.,2020) the father filed a petition for custody of the subject child for the purpose of obtaining an order, inter alia, making specific findings so as to enable the child to petition the United States Citizenship and Immigration Services for special immigrant juvenile status ( SIJS) pursuant to 8 USC § 1101(a)(27)(J). Thereafter, the father moved for the issuance of an order making the requisite declaration and specific findings so as to enable the child to petition for SIJS. Along with the petition, the father submitted affidavits of service attesting that, after three unsuccessful attempts to serve the mother at a residence in Honduras, the “affix and mail” method of service was utilized (see CPLR 308[4]). However, since the process server had not attested to any efforts he had made to verify that the address at which service was attempted was, in fact, the mother’s residence, the Family Court twice adjourned the matter to allow the father time to verify the mother’s address. As of the final adjourned date, the father had not submitted any further information or an updated affidavit of service. The court dismissed the petition without prejudice and  denied the father’s motion for the issuance of an order, inter alia, making the requested specific findings so as to enable the child to petition for SIJS.

 

            The Appellate Division affirmed. It noted that if  service cannot be effected, with due diligence, pursuant to CPLR 308(1) or (2), a party may serve process by affixing the summons and petition to the door of the recipient’s “actual place of business, dwelling place or usual place of abode,” and by mailing them either to the last known residence or actual place of business (CPLR 308[4]; see also Domestic Relations Law § 75–g; CPLR 313). The due diligence requirement of CPLR 308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received. It held that here, , where the father listed the mother’s address as “unknown” on the petition and testified at a hearing that he had no information about the mother’s whereabouts since the parties had separated 13 or 14 years earlier, the process server’s three attempts to serve process at an address in Honduras, without attesting to any efforts to verify that this was the mother’s address, did not constitute due diligence.

 

Court not required to inquire into his expenses on indigents application for assigned counsel

 

            In Alphonse v Alphonse, --- N.Y.S.3d ----, 2020 WL 7233597, 2020 N.Y. Slip Op. 07374 (2d Dept.,2020) the Appellate Division held that where a party has the right to the assistance of counsel (see Family Ct. Act § 262[a][v]) and requests counsel on the grounds of indigence the court must make an inquiry to determine whether the party is eligible for court-appointed counsel. Here, the court properly inquired as to the father’s eligibility for court-appointed counsel and instructed the father to submit certain documentation, including a form detailing his financial circumstances. While the father listed his weekly income on this form as $1,820, he failed to indicate on the form whether he provided financial support to any other individuals, or any of his expenses, aside from his monthly mortgage payments. As a result, the father failed to fully and timely make the disclosure necessary to support his claim of indigence. Contrary to the father’s contention, the court was not required to inquire any further into his expenses, and it agreed with its determination that he was not financially eligible for court-appointed counsel.

 

 

Appellate Division, Third Department

 

 

Sentence of commitment  may only continue until such time as the offender complies with the support order.

 

            In Matter of Rondeau v Jerome --- N.Y.S.3d ----, 2020 WL 7647902 (Mem), 2020 N.Y. Slip Op. 07960 (3d Dept.,2020) the Appellate Division held that Family Court abused its discretion by imposing a 90–day jail sentence for the father’s willful violation of a support order where the father presented payment at the hearing for the full amount of arrears owed.  Where a willful violation has been found, Family Court may “commit the respondent to jail for a term not to exceed six months. (Family Ct Act § 454[3][a] ). Such a sentence is in the nature of a civil contempt, which may only continue until such time as the offender, if it is within his or her power, complies with the support order. As the father presented payment at the hearing for the full amount of arrears owed Family Court abused its discretion when it issued the order of commitment