Recent Decisions May 18, 2021

 May 16, 2021

Appellate Division, Second Department

Supreme Court had authority to modify child support under DRL § 236[B][9][b][2][i] upon showing substantial change in circumstances despite provision of agreement restricting modifications of child support

In Park v Park, --- N.Y.S.3d ----, 2021 WL 1653674, 2021 N.Y. Slip Op. 02536 (2d Dept., 2021) the parties were married in June 2000, and had two children, born in 2002 and 2008. On November 14, 2014, the parties entered into a stipulation of settlement in which they agreed to share joint legal custody of the children, with the plaintiff having primary residential custody. In an agreement dated March 24, 2016, the parties agreed that the defendant would pay maintenance to the plaintiff for a period of 18 months, and the defendant would also pay child support. A judgment of divorce dated September 16, 2016, incorporated but did not merge the stipulation of settlement and the maintenance and support agreement. The Appellate Division held, inter alia, that Supreme Court had the authority to modify the parties’ child support obligations upon a showing of a substantial change in circumstances despite the provision of the maintenance and support agreement restricting modifications of the child support obligation during the first 18 months following the parties’ divorce (citing Domestic Relations Law § 236[B][9][b][2][i]; Bishop v. Bishop, 170 A.D.3d 642, 644, 95 N.Y.S.3d 317) 

Comment:  

Domestic Relations Law § 236[B][9][b][2][i] provides, in part:  The court may modify an order of child support, including an order incorporating without merging an agreement or stipulation of the parties, upon a showing of a substantial change in circumstances. 

In Bishop v. Bishop, 170 A.D.3d 642, 644, 95 N.Y.S.3d 317 (2d Dept.,2019) the parties' stipulation of settlement, which set forth the plaintiff's child support obligation, was executed after the effective date of the 2010 amendments to Domestic Relations Law § 236 (B) and Family Court Act § 451. Since the parties' stipulation of settlement post-dated the 2010 amendments, the defendant was not required to demonstrate a substantial and unanticipated change in circumstances resulting in a concomitant need, or that the stipulation of settlement was not fair and equitable when entered into, to establish her entitlement to an upward modification of the plaintiff's child support obligation. Additionally, the parties specifically opted out of those provisions of the Domestic Relations Law which allow for modification when “three years have passed since the order was entered, last modified or adjusted” or “there has been a change in either party's gross income by fifteen percent or more since the order was entered, last modified, or adjusted” (Domestic Relations Law § 236 [B] [9] [b] [2] [ii] [A], [B]). Thus, in order to establish her entitlement to an upward modification of the plaintiff's child support obligation, the defendant had the burden of establishing “a substantial change in circumstances” (Domestic Relations Law § 236 [B] [9] [b] [2] [i]; Family Ct Act § 451 [3] [a]). A substantial change in circumstances may be measured by comparing the parties' financial situation at the time of the application for modification with that existing at the time the order or judgment sought to be modified was issued. 

Where habeas corpus proceeding is brought pursuant to DRL§ 70, and children resided outside of this State, reference must be made to the UCCJEA to determine if this state has “home state” jurisdiction 

  In Matter of Kassim v Al-Maliki, --- N.Y.S.3d ----, 2021 WL 1774145 (Mem), 2021 N.Y. Slip Op. 02800 (2d Dept.,2021) the parties lived with their children in New York until approximately the spring of 2016, when they traveled together to Yemen. The mother alleged that the family traveled to Yemen for the Ramadan and Eid holidays with the intention of returning to New York at the end of the holidays. The father alleged that the parties jointly agreed to relocate the family to Yemen. According to the mother, after the family arrived in Yemen, the father confiscated the passports of the mother and the children, such that they could not return to New York. The mother alleged that she was not able to return to the United States until 2019, after she signed a divorce agreement in the presence of the father and several other men, all of whom were carrying weapons, including firearms and traditional swords. In exchange for signing the agreement, the father returned the mother’s passport to her. The mother returned to New York in 2019 and commenced a proceeding, seeking a writ of habeas corpus to compel the father to produce the children before the Family Court and custody of the children. On October 9, 2019, the court directed the father, who was in New York at the time, to return the children to the court’s jurisdiction, to surrender his passport, and to remain in the court’s jurisdiction. The father moved to dismiss the petition for lack of subject matter jurisdiction. Subsequently, the father returned to Yemen, and the mother moved to hold the father in civil and criminal contempt and to issue a warrant for the father’s arrest and to compel his appearance in court. The court, without a hearing, granted the father’s motion, dismissed the petition, and denied the mother’s motion, based on its finding that it lacked subject matter jurisdiction over the proceeding. The Appellate Division noted that pursuant to Domestic Relations Law § 70, “[w]here a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court, on due consideration, may award ... custody of such child to either parent.” Since the children resided outside of this State, reference must necessarily be made to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which provides, inter alia, that “a court of this state has jurisdiction to make an initial child custody determination only if: (a) this state 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]). The UCCJEA defines “home state” as “the state in which a child lived with a parent ... for at least six consecutive months immediately before the commencement of a child custody proceeding” (Domestic Relations Law § 75–a [7]). It found that the Family Court was required to hold a hearing as to the issue of whether New York or Yemen was the children’s home state, as there were disputed issues of fact regarding the circumstances under which the parties moved with the children from New York to Yemen. The court erred in concluding that it lacked subject matter jurisdiction to determine the mother’s petition without conducting a hearing. The petition was reinstated and the matter was remitted to the Family Court, for a hearing and new determination.

At dispositional stage of a proceeding to terminate parental rights, Family Court must make its determination based solely on the best interests of the child. The court has to either dismiss the petition, suspend judgment for up to one year, or terminate parental rights

In Matter of Grace G, --- N.Y.S.3d ----, 2021 WL 1774163, 2021 N.Y. Slip Op. 02795(2d Dept.,2021) a proceeding pursuant to Social Services Law § 384–b to terminate parental rights, the mother appealed from an order which upon a finding that the mother had permanently neglected the child, terminated the mother’s parental rights. The Appellate Division reversed and remitted for entry of a suspended judgment. It observed that at the dispositional stage of a proceeding to terminate parental rights, the Family Court must make its determination based solely on the best interests of the child (see Family Ct Act § 631). Depending on the best interests of the child, the court has to either dismiss the petition, suspend judgment for up to one year, or terminate parental rights (see Family Ct Act §§ 631, 633[b]; Social Services Law § 384–b[8][f]). A dispositional order suspending judgment provides a brief grace period to give a parent found to have permanently neglected a child a second chance to prepare for reunification with the child (see Family Ct Act § 633; Matter of Michael B., 80 N.Y.2d 299, 311, 590 N.Y.S.2d 60). Here, the Family Court’s determination to terminate the mother’s parental rights rather than to enter a suspended judgment was not in the child’s best interests. Although the child had been in foster care for several years, it was undisputed that the mother engaged in regular phone conversations with the child at least once a week; that, since March 2019, following a difficult pregnancy with her younger child which impeded her ability to travel from her apartment in upper Manhattan to the agency in Jamaica, Queens, where visitation occurred, she had been regularly visiting the child; that the child continued to refer to the mother as her mother and her foster parent as her auntie; and that there was a strong bond between the mother and the child and between the child and the mother’s younger child, who resided with the mother. In addition, the mother had completed a drug treatment program and was drug free, attended a parenting class with intentions to attend additional classes, underwent a mental health evaluation, and was receiving therapy and preventive services. Further, following the child’s placement in foster care, the mother, who, at the time that she gave birth to the child, was 20 years old and living in a group home, having entered foster care herself at the age of 17, obtained an associate’s degree and secured an apartment. Moreover, in a related derivative neglect proceeding filed with respect to the mother’s younger child, the mother was granted a suspended judgment which expired in July 2020. Consequently, under these circumstances, after the dispositional hearing, the court should have entered an order of disposition suspending judgment as requested by the mother and the attorney for the child, since the record demonstrated that such a disposition would have been in the child’s best interests.

Appellate Division, Third Department

Eight-year-old victim could testify as a sworn witness in juvenile delinquency proceeding despite preliminary questioning indicating his lack of knowledge of an oath where subsequent questioning established he understood difference between the truth and lie.

In Matter of Alexander CC, 191 A.D.3d 1113, 142 N.Y.S.3d 223, 2021 N.Y. Slip Op. 01101 (3d Dept.,2021) a juvenile delinquency proceeding, the Appellate Division held that the eight-year-old victim could testify as a sworn witness despite preliminary questioning indicating his lack of knowledge of an oath. Pursuant to Family Ct Act § 343.1, “[a] witness less than nine years old may not testify under oath unless the court is satisfied that he or she understands the nature of an oath” (Family Ct Act § 343.1[2]). Although preliminary questioning of the victim indicated that he did not know what an oath is, this fact was not determinative particularly where, as here, subsequent questioning of the victim by petitioner and Family Court established that he understood the difference between the truth and lie, understood that he was required to testify truthfully at the fact-finding hearing and promised that he would so testify. The victim also evinced an understanding that, if he were to tell a lie, he could “get in trouble” and be punished by the court.

Literal compliance with terms of the suspended judgment will not suffice to prevent finding a violation. Must also show progress has been made to overcome specific problems which led to the removal. 

In Matter of Nahlaya MM., 2021 WL 1673597 (3d Dept.,2021) the Appellate Division affirmed an order pursuant to Social Services Law § 384–b, which granted petitioner’s motions to revoke a suspended judgment, and terminated respondent’s parental rights. It held that a suspended judgment is intended to provide a parent who has permanently neglected his or her children with a brief period within which to become a fit parent so that the children can be returned to him or her in safety. A parent’s noncompliance with the terms of the suspended judgment during this grace period, if established by a preponderance of the evidence, may end with revocation of the suspended judgment and termination of his or her parental rights. Literal compliance with the terms of the suspended judgment will not suffice to prevent a finding of a violation. A parent must also show that progress has been made to overcome the specific problems which led to the removal of the children. While a parent’s failure to comply with the conditions of a suspended judgment does not automatically compel termination of parental rights, that noncompliance constitutes strong evidence that termination is, in fact, in the best interests of the child.

Although father’s modification petition not technically a relocation application as he was not primary custodian “the practical effect of granting his request would be the relocation of the child, relocation must be considered within that framework

In Matter of Jelani PP v Melissa QQ, --- N.Y.S.3d ----, 2021 WL 1675714, 2021 N.Y. Slip Op. 02577(3d Dept.,2021) Petitioner (father) resided in Florida. Pursuant to a July 2016 custody order, entered on consent, Family Court granted the parents joint legal custody of the child, the mother primary physical custody of the child and the father specified parenting time. In July 2018, the father commenced a custody modification proceeding seeking primary physical custody of the child, alleging that the mother failed to, among other things, adequately provide for the child’s educational well-being. Following a fact-finding hearing, Family Court continued the award of joint legal custody, with the mother maintaining primary physical placement of the child, but modified the order to provide for, among other things, expanded parenting time for the father during the child’s summer vacation. The Appellate Division affirmed. Initially, it noted that, despite being treated as such by Family Court, the father’s modification petition was not technically a relocation application inasmuch as he was not the primary custodian of the child pursuant to the July 2016 custody order. However, inasmuch as “the practical effect of granting the father’s request for modification of custody would be the relocation of the child relocation must be considered within that framework. Therefore, the father was required to demonstrate a change in circumstances, which would then warrant an inquiry into whether modification of the existing custody order was necessary to further the best interests of the child, with the proposed relocation being one of the factors for the court to consider in making its best interests determination.

 

 Lincoln hearing will not be conducted if it will have a potential negative impact on the child

In Matter of Ellen H v Joseph H, --- N.Y.S.3d ----, 2021 WL 1676661, 2021 N.Y. Slip Op. 02567(3d Dept.,2021) the Appellate Division affirmed an order which modified the joint custody, shared physical custody order entered on consent and awarded the mother sole legal and physical custody. It rejected the fathers argument on appeal that Family Court erred for failing to conduct a Lincoln hearing. The determination of whether to hold a Lincoln hearing lies within Family Court’s discretion and such a hearing will not be conducted if it will have a potential negative impact on the child. The father’s attorney requested that Family Court conduct a Lincoln hearing at the conclusion of the fact-finding hearing. The court denied the request, agreeing with the AFC that a Lincoln hearing would only cause more unnecessary stress for the children, particularly since the relevant and available facts were already before the court. Although a Lincoln hearing is the preferred manner for ascertaining the children’s wishes, such a hearing is not mandatory, particularly where, as here, the record reflects that the hearing itself may do more harm than good.

There is no requirement that a notice of motion list the statute or regulation that is the basis of the motion as long as some grounds are mentioned. Where there is no misunderstanding or prejudice, a court may grant relief that is warranted by the facts plainly appearing on the motion papers.

In Rosenheck v Schachter, 2021 WL 1795298 (3d Dept.,2021) the wife moved in Supreme Court for counsel fees related to certain post judgment motions made by the husband in the Court of Appeals. The husband argued on appeal that the wife’s notice of motion was defective because it failed to specify the grounds on which the motion was based, thus prejudicing the husband. The Appellate Division observed, citing CPLR 2214[a], a “notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor, but there is no requirement that the notice of motion list the statute or regulation that is the basis of the motion as long as some grounds are mentioned. (Shields v. Carbone, 99 A.D.3d 1100, 1102 [2012]). In practice, the notice of motion specifies the time and place of the hearing as well as the relief requested while the affidavits, affirmations, and memorandum of law state the grounds for the relief. Where there is no misunderstanding or prejudice, a court may grant relief that is warranted by the facts plainly appearing on the motion papers on both sides. In support of her motion, the wife submitted the Court’s 2018 order, finding that the wife was entitled to appellate counsel fees based on the agreement, as well as various correspondence exchanged between the parties’ attorneys, one of which communicated to the husband’s counsel that the wife would be seeking judicial intervention if the counsel fees were not rendered pursuant to the agreement. Although the husband contended that he was prejudiced by the wife’s alleged failure to provide the grounds of her motion, it noted that the husband provided Supreme Court with a timely and detailed reply with various exhibits, including a copy of the agreement. Given the clear lack of prejudice or misunderstanding, it found that the court properly rendered a determination after examining all of the motion papers submitted.

 

Where child of mixed race continued presence of confederate flag painted on a rock near her driveway would constitute a change in circumstances and factor in any future best interests analysis

In Christie BB v Isaiah CC, --- N.Y.S.3d ----, 2021 WL 1795373, 2021 N.Y. Slip Op. 02847 (3d Dept.,2021) following a fact-finding hearing, Family Court determined that the parties should continue to have joint legal and physical custody of the child, with parenting time on alternating weeks. However, the court expanded upon the prior order by adding a provision that the mother’s home shall be considered the child’s primary residence for the purpose of schooling. The Appellate Divison modified this portion of Family Court’s order. Although not addressed by Family Court or the attorney for the child, the Appellate Division pointed out that mother’s testimony at the hearing, as well as an exhibit admitted into evidence, revealed that she had a small confederate flag painted on a rock near her driveway. It stated, given that the child was of mixed race, it would seem apparent that the presence of the flag is not in the child’s best interests, as the mother must encourage and teach the child to embrace her mixed race identity, rather than thrust her into a world that only makes sense through the tortured lens of cognitive dissonance. Further, and viewed pragmatically, the presence of the confederate flag is a symbol inflaming the already strained relationship between the parties. As such, while recognizing that the First Amendment protects the mother’s right to display the flag, if it is not removed by June 1, 2021, its continued presence would constitute a change in circumstances and Family Court shall factor this into any future best interests analysis.

 

Appellate Division, Fourth Department

Error to award maintenance for period of time in excess of recommendation in the advisory schedule in DRL § 236 (B) (6) (f) (1) without adequately demonstrating reliance on relevant statutory factors enumerated in DRL § 236 (B) (6) (e)

In Gutierrez v Gutierrez, --- N.Y.S.3d ----, 2021 WL 1711367 (Mem), 2021 N.Y. Slip Op. 02662 (4th Dept.,2021) the defendant husband appealed from a judgment of divorce that, inter alia, directed him to pay plaintiff wife $750 a week in maintenance for a period of 17 years. The Appellate Division agreed with his argument that Supreme Court erred in awarding maintenance for a period of time in excess of the recommendation set forth in the advisory schedule in Domestic Relations Law § 236 (B) (6) (f) (1) without adequately demonstrating its reliance on the relevant statutory factors enumerated in Domestic Relations Law § 236 (B) (6) (e) (see § 236 [B] [6] [f] [2]). The Appellate Division also concluded that the court erred in awarding plaintiff maintenance without sufficiently setting forth the relevant factors enumerated in Domestic Relations Law § 236 (B) (6) (e) that it relied on in reaching its determination. Although the court need not specifically cite the factors enumerated in that section, its analysis must show that it at least considered the relevant factors in making its determination. The determination must also reflect an appropriate balancing of the wife’s needs and the husband’s ability to pay. The court stated that it awarded plaintiff $750 per week, an amount deviating from the statutory guidelines, for a duration in excess of the statutory guidelines based on the length of the marriage, the parties’ disproportionate earning capacities, and defendant’s tax debt. However, although the statutory guidelines use the length of the marriage to calculate the duration of the maintenance award, the length of the parties’ marriage is not a factor enumerated in Domestic Relations Law § 236 (B) (6) (e). Further, the court did not state what factors it considered, in addition to actual earnings, in determining the parties’ earning capacities. Moreover, the court did not determine whether defendant’s substantial tax debt would impede his ability to pay plaintiff’s maintenance award. Thus, the court failed to show that it considered any of the factors enumerated in Domestic Relations Law § 236 (B) (6) (e) (1) in making its determination of both the amount and duration of the maintenance award. It vacated the maintenance award and remitted the matter to Supreme Court to determine the amount and duration of maintenance, if any, after setting forth all relevant factors that it considered in making its decision.

 

May 1, 2021

A defect in subject matter jurisdiction may be raised at any time by any party

In Hook v Snyder, --- N.Y.S.3d ----, 2021 WL 1567049 (Mem), 2021 N.Y. Slip Op. 02458 (1st Dept.,2021) the Appellate Division reversed an order which denied respondent mother’s motion to dismiss the custody modification petition on the ground of lack of subject matter jurisdiction, and granted the motion. It held among other things that contrary to petitioner’s contention, respondent’s prior appearances and execution of a stipulation in Family Court in New York did not constitute a waiver of her lack of subject matter jurisdiction defense; a defect in subject matter jurisdiction may be raised at any time by any party or by the court itself, and subject matter jurisdiction cannot be created through waiver, estoppel, laches, or consent (Matter of Nemes v. Tutino, 173 A.D.3d 16, 23, 101 N.Y.S.3d 538 [4th Dept. 2019]

 

Where a prior action for a divorce is discontinued, and the parties reconcile or continue the marital relationship, and receive the benefits of the relationship, property acquired after the discontinuance may be deemed marital property. To determine whether this standard has been met, inquiry must be made into the nature of the marital relationship within the context of the statutory scheme for equitable distribution.

In Potvin v Potvin, --- N.Y.S.3d ----, 2021 WL 1556056, 2021 N.Y. Slip Op. 02429(2d Dept.,2021) the parties were married in 1974 and had two adult children. On July 9, 2015, the plaintiff commenced this action for a separation, and the defendant counterclaimed for a divorce. At trial, testimony was elicited that the parties previously separated in 1991. The plaintiff commenced a prior action for a divorce in 1996, and the defendant agreed to pay child support in the sum of $1,200 per month. The plaintiff discontinued the prior divorce action in 1998. The defendant then moved back into the marital residence. The plaintiff testified, however, that the parties entered into an oral agreement that they were not reconciling and that each waived any right to the other’s assets. The defendant denied entering into such an agreement and claimed it was his understanding that the parties had reconciled. However, the defendant continued to pay the plaintiff $1,200 per month as his contribution toward household expenses until 2012. In a decision and order dated November 22, 2017, made after the trial, the Supreme Court, inter alia, denied the defendant’s motion for an award of counsel fees. The court also found that there was no “economic partnership” between the parties at any time following their separation in 1991, and that “each party shall retain ownership of the assets under his or her dominion and control,” including cash accounts, stocks, stock options, pension and retirement accounts, life insurance policies, and deferred compensation plans. In a judgment of divorce dated December 19, 2017, the court, among other things, directed that each party shall retain sole ownership of the assets in their own names, and awarded the plaintiff the marital residence, with a directive that the plaintiff pay the defendant 25% of the appraised value of the marital residence, less the $25,500 interim award and the sum of $1,972.60 advanced by the plaintiff for the cost of the trial transcript. The court also directed the plaintiff to pay the defendant maintenance of $1,414 per week for one year, and directed that each party shall bear the cost of their own counsel fees.  

The Appellate Division observed that where a prior action for a divorce is withdrawn or discontinued, and the parties “either reconcile or continue the marital relationship, and continue to receive the benefits of the relationship,” property acquired after the withdrawal or discontinuance of the prior divorce action may be deemed marital property (Iwanow v. Iwanow, 39 A.D.3d 471, 474, 834 N.Y.S.2d 247). “[I]n order to determine whether this standard has been met, inquiry must be made into the nature of the marital relationship within the context of the statutory scheme for equitable distribution. The parties resided together in the marital residence from 1998 until the commencement of the subject action in 2015, and for most of that time, shared the marital residence with the children. During that time, the parties visited relatives and attended social functions together, went on vacations together, and periodically engaged in sexual relations. Although the parties maintained separate bank accounts and credit cards, the parties filed joint tax returns and shared many of the family’s expenses, including the children’s college tuition and home renovations. Moreover, the parties named each other as executors and beneficiaries in their wills. Thus, the evidence demonstrated that the parties functioned as an “economic partnership” after the discontinuance of the prior divorce action, and the Supreme Court improperly found that the parties “ceased functioning as an economic partnership” and “lived separate financial lives” starting in 1991. Consequently, the court improvidently exercised its discretion in directing that the parties retain sole ownership of certain assets in their own names. Moreover, there was no written agreement to keep the parties’ finances separate. Marital partners may agree that property they acquire during the marriage will be divided in a particular manner, but that agreement must be in writing. Here, the alleged oral agreement between the parties did  not constitute such an agreement. Thus, the distribution of marital property must be based upon the equitable consideration and application of  enumerated factors and the court is required to set forth the factors it considered and the reasons for its decision (Domestic Relations Law § 236[B][5][g]). Here, the Supreme Court failed to set forth the factors it considered in making its decision as to equitable distribution, since the court only indicated that it relied upon the parties’ alleged oral agreement. It remitted the matter to the Supreme Court for a new determination of the issue of equitable distribution based upon findings of fact in compliance with Domestic Relations Law § 236(B).

  Furthermore, the Supreme Court erred in denying that branch of the defendant’s motion which was for an award of counsel fees. Since the defendant was the less monied spouse, the rebuttable presumption was applicable, and the plaintiff did not rebut that presumption. It remitted remit the matter to the Supreme Court for a hearing and determination as to the appropriate amount of counsel fees incurred by the defendant.

Parental access determinations should generally be made only after a full and plenary hearing and inquiry

In Matter of Vazquez v Bahr, --- N.Y.S.3d ----, 2021 WL 1556199 (Mem), 2021 N.Y. Slip Op. 02397 (2d Dept.,2021) the Appellate Division held that parental access determinations should generally be made only after a full and plenary hearing and inquiry (S.L. v. J.R., 27 N.Y.3d 558, 563, 36 N.Y.S.3d 411.) While the general right to a hearing in parental access cases is not absolute, where facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a hearing is required. Here, the record showed that there were disputed factual issues regarding the finding of the children’s best interests such that a hearing on parental access was required.