February 1, 2021
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
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
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