Recent Decisions and Legislation December 14, 2022

 December 14, 2022

Pendente lite child support award will not be disturbed absent exigent circumstances or failure to consider appropriate factors.

In Murray v Rashid, --- N.Y.S.3d ----, 2022 WL 17490799, 2022 N.Y. Slip Op. 07001 (First Dept., 2022) the Appellate Division declined to disturb the pendente lite child support  award where the husband had not shown that there were exigent circumstances necessitating a different award, nor that Supreme Court failed to consider the appropriate factors when it determined the award, which was derived from the parties’ imputed incomes.

Even if the judgment of divorce included terms that were not expressly agreed to by the parties, the parties agreement in their oral stipulation upon the essential elements created an enforceable contract and court was entitled to fill in the gaps based on objective criteria

  In Bradley v Bakal, --- N.Y.S.3d ----, 2022 WL 17490833, 2022 N.Y. Slip Op. 06988(1st Dept.,2022) the Appellate Division, inter alia,  rejected defendant’s contention that the judgment of divorce should be vacated in its entirety because the parties had not yet agreed to all the ancillary issues to the divorce, and the judgment did not reflect the parties’ in-court oral stipulation. The record made clear that the parties’ in-court oral stipulation was intended to resolve all ancillary issues of the divorce. Even if the judgment of divorce included terms that were not expressly agreed to by the parties, upon review of the oral stipulation, it concluded that the parties agreed upon the essential elements to create an enforceable contract, notwithstanding that certain discrete issues were left open to future negotiation. Since the parties were  unable to reach an agreement on these remaining issues, the court was entitled to fill in the gaps based on objective criteria (see Four Seasons Hotels v. Vinnik, 127 A.D.2d 310, 317–318, 515 N.Y.S.2d 1 [1st Dept. 1987]). It remanded the matter to the court for a determination that the terms of the judgment of divorce not expressly agreed to by the parties comport with some objective criteria.

Appellate Division, Second Department

 

 

Family Court has the authority to award attorneys’ fees pursuant to Domestic Relations Law § 237(b) and Family Court Act § 651(b) in a contempt proceeding based upon its determination, in effect, that the mother had engaged in frivolous conduct. A hearing was not necessary since the father requested the imposition of attorneys’ fees and sanctions in his motion papers.

In Matter of Coward v Biddle, 2022 WL 17332496 (2d Dept.,2022) the father’s counsel moved, inter alia, to hold the mother in civil contempt for her failure to comply with a prior order of the Family Court which had directed the mother to pay attorneys’ fees directly to the father’s counsel of $3,000. Family Court found the mother in civil contempt of the order, and awarded the father’s counsel additional attorneys’ fees totaling $4,500. The Appellate Division affirmed both orders. It held that the Family Court had the authority to award attorneys’ fees pursuant to Domestic Relations Law § 237(b) and Family Court Act § 651(b). The court did not improvidently award the father’s counsel attorneys’ fees based upon its determination, in effect, that the mother had engaged in frivolous conduct (see 22 NYCRR 130–1.1[a]). Despite the mother’s contention to the contrary, a hearing with respect to the award of attorneys’ fees was not necessary under the circumstances, since the father requested the imposition of attorneys’ fees and sanctions in his motion papers.

Where the hearing court is presented with sharply conflicting accounts regarding the subject events, and chooses to credit the testimony of certain witnesses over that of others, its determination will not be disturbed unless clearly unsupported by the record.

In Matter of Sydelle P. --- N.Y.S.3d ----, 2022 WL 17332493, 2022 N.Y. Slip Op. 06809 (2d Dept.,2022) the Appellate Division, held that a  finding of neglect is proper where a preponderance of the evidence establishes that the child’s physical, mental, or emotional condition was impaired or was in danger of becoming impaired by the parent’s commission of an act, or acts, of domestic violence in the child’s presence. Even a single act of domestic violence, either in the presence of a child or within the hearing of a child, may be sufficient for a neglect finding. Where the hearing court is presented with sharply conflicting accounts regarding the subject events, and chooses to credit the testimony of certain witnesses over that of others, its determination will not be disturbed unless clearly unsupported by the record.

Where the hearing court is presented with sharply conflicting accounts regarding the subject events, and chooses to credit the testimony of certain witnesses over that of others, its determination will not be disturbed unless clearly unsupported by the record.

  In Matter of Karen P. v. Alvin P., --- N.Y.S.3d ----, 2022 WL 17332553 (Mem), 2022 N.Y. Slip Op. 06808 (2d Dept.,2022) a family offense proceeding the Appellate Division held that where the hearing court is presented with sharply conflicting accounts regarding the subject events, and chooses to credit the testimony of certain witnesses over that of others, its determination will not be disturbed unless clearly unsupported by the record.

Supreme Court did not improvidently exercise its discretion in awarding the monied spouse  attorney’s fees where, among other things, plaintiff’s conduct resulted in unnecessary litigation

  In Forman v Forman, --- N.Y.S.3d ----, 2022 WL 17480735, 2022 N.Y. Slip Op. 06913 (2d Dept.,2022) the  parties stipulation of settlement  was incorporated  but not merged into a judgment of divorce dated April 2, 2019. In June 2019, the plaintiff moved to vacate the judgment of divorce and to set aside the stipulation. The Supreme Court, denied the plaintiff’s motion and awarded the defendant attorney’s fees of $6,987.50. The Appellate Division affirmed. It held that Supreme Court did not improvidently exercise its discretion in awarding the defendant attorney’s fees. The award of reasonable attorney’s fees is a matter in the court’s sound discretion, and the court may consider, inter alia, a party’s tactics that unnecessarily prolonged the litigation. While the plaintiff was the less monied spouse, the court’s award reflected consideration of the relevant factors, including that the plaintiff’s conduct resulted in unnecessary litigation. Thus, the court did not improvidently exercise its discretion in granting the defendant’s cross motion for an award of attorney’s fees.

Family Court properly included the children as protected persons on the order of protection, where he evidence demonstrated that doing so was necessary to further the purposes of protection

In Matter of Cook v Berehowsky, --- N.Y.S.3d ----, 2022 WL 17480744, 2022 N.Y. Slip Op. 06925 (2d Dept.,2022) the Appellate Divison observed that a person commits harassment in the second degree when that person, “with intent to harass, annoy or alarm another person ... strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same (Penal Law § 240.26[1]). The intent element may be inferred from the surrounding circumstances. It held that the mother established by a fair preponderance of the evidence that the father had committed the family offense of harassment in the second degree. The mother’s testimony, which the Family Court credited, established that the father pulled a rug out from under her, causing her to fall. The father committed this act in the presence of the children, and the mother’s hand hit one of the subject children as she fell. The father’s intent to harass and alarm the mother could be inferred from the circumstances here, including his screaming before the incident and the lack of a legitimate reason for the father to pull the rug on which the mother was standing, particularly when the mother was in such close proximity to the subject children. Additionally, the Family Court properly included the children as protected persons on the order of protection, as the evidence demonstrated that doing so was “necessary to further the purposes of protection” (Family Ct Act § 842[l]; see Matter of Lengiewicz v. Lengiewicz, 167 A.D.3d 608, 609, 89 N.Y.S.3d 241; Matter of Shank v. Shank, 155 A.D.3d 875, 877, 63 N.Y.S.3d 719).

 

March 31, 2021 amendment to Family Court Act § 1046(a)(iii) which provide that “the sole fact that an individual consumes cannabis” is not sufficient to constitute prima facie evidence of child neglect retroactively applied to events that occurred, and a Family Court decision that was rendered, prior to March 2021.

  In Matter of Mia S v Michelle C,, --- N.Y.S.3d ----, 2022 WL 17480834, 2022 N.Y. Slip Op. 06932 (2d Dept.,2022) the Appellate Division observed that on  March 31, 2021, Family Court Act § 1046(a)(iii) was amended to provide that “the sole fact that an individual consumes cannabis” is not sufficient to constitute prima facie evidence of child neglect. It held that the March 31, 2021 amendment to Family Court Act § 1046(a)(iii) should be retroactively applied to events that occurred, and a Family Court decision that was rendered, prior to March 2021. It observed that pursuant to Family Court Act § 1046(a)(iii), “proof that a person repeatedly misuses a drug,” under certain circumstances, constitutes “prima facie evidence that a child of ... such person is a neglected child.” Where this presumption of neglect is triggered, the petitioner is not required to establish that the child suffered actual harm or was at imminent risk of harm.” Family Court Act § 1046(a)(iii), as amended (L 2021, ch 92, § 58), provides as follows: “(a) In any hearing under this article and article ten-A of this act: ... “(iii) proof that a person repeatedly misuses a drug or drugs or alcoholic beverages, to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of or who is the legal responsibility of such person is a neglected child except that such drug, or alcoholic beverage misuse shall not be prima facie evidence of neglect when such person is voluntarily and regularly participating in a recognized rehabilitative program. Provided however, the sole fact that an individual consumes cannabis, without a separate finding that the child’s physical mental or emotional condition was impaired or is in imminent danger of becoming impaired established by a fair preponderance of the evidence shall not be sufficient to establish prima facie evidence of neglect.”

 

The Appellate Division concluded that Family Court’s finding of neglect was proper under Family Court Act § 1046(a)(iii), as amended in March 2021 was proper. In determining that the child was neglected, the Family Court did not make a finding as to whether the child’s “physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired” (FCA § 1012[f][i]). Such a finding was obviated because the court relied on the presumption set forth in Family Court Act § 1046, under which “proof that a person repeatedly misuses a drug or drugs or alcoholic beverages, to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of or who is the legal responsibility of such person is a neglected child” (id. § 1046[a][iii]). Thus, the order appealed from should be affirmed only if the statutory presumption was properly applied.  It held that the 2021 amendment did not preclude a determination that the petitioner established a prima facie case of neglect. The 2021 amendment should not be interpreted as preventing any reliance on the misuse of marihuana, no matter how extensive or debilitating, to establish a prima facie case of neglect. The statute still encompasses the misuse of other legal substances, such as alcoholic beverages and prescription drugs. It held that based on the plain language of the statute, the 2021 amendment does not prevent a court from finding that there has been a prima facie showing of neglect where the evidence establishes that the subject parent has, in fact, repeatedly misused marihuana in a manner that “has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality”. Such a finding is not based on “the sole fact” that the parent “consumes cannabis”.

 

The evidence presented at the fact-finding hearing, which included the testimony of the mother and her boyfriend, hospital treatment records, and other medical records, supported the Family Court’s determination that the petitioner met its burden of proving that the mother neglected the child by her misuse of marihuana in a manner and to the extent contemplated by Family Court Act § 1046(a)(iii).  In its order, the Family Court expressly determined that the mother had misused marihuana and “clearly had a substantial impairment of judgment, and/or substantial manifestation of irrationality and was disoriented and/or incompetent.” Since this finding was not based on “the sole fact” that the mother “consumes cannabis” (Family Ct Act § 1046[a][iii]), it provided a sufficient basis on which to apply the presumption of neglect arising from repeated misuse of drugs that is articulated in the statute, as amended.

Appellate Division, Third Department

Supreme Court properly denied pretrial motion for classification of assets, as separate property where the motion lacked sufficient information beyond the husband’s self-serving statements to determine the appropriate ownership interests, the current value of the properties or any improvements made to the properties during the marriage.

In Belmonte v Belmonte, --- N.Y.S.3d ----, 2022 WL 17347194, 2022 N.Y. Slip Op. 06844 (3d Dept.,2022) an action for a divorce, the husband cross-moved for, among other things, a declaration that certain real property was separate property. Supreme Court denied the husband’s cross motion. In support of his motion, the husband submitted his own affidavit, various deeds and titles showing the titled owners of each property, and an expenditures list showing sums but lacking any detail as to how or where each sum was expended. The Appellate Division observed that the appeal lacked sufficient information beyond the husband’s self-serving statements to determine the appropriate ownership interests, the current value of the properties or any improvements made to the properties during the marriage. It held that while it generally encourages pretrial classification of assets, under these circumstances, Supreme Court did not abuse its discretion in denying the husband’s cross motion to classify assets as separate property pretrial as additional discovery would  place the motion court in a far better position to determine this legally dispositive issue, namely, what, if any, appreciation in the value of the real property can be considered marital property.

Supreme Court

Supreme Court grants Defendants motion to  re-open the trial pursuant to CPLR 4404(b), after the parties rested, so she could offer into evidence certain credit card records and charts pursuant to the voluminous writing exception

In Gary G. v Elena A.G. ,--- N.Y.S.3d ----, 2022 WL 17482396, 2022 N.Y. Slip Op. 22373 (Sup Ct., 2022)  Supreme Court granted defendants motion to  re-open the trial pursuant to CPLR 4404(b),after the parties rested, so she could offer into evidence certain credit card records and charts pursuant to the voluminous writing exception. It rejected plaintiff argument that defendant’s reliance on CPLR §4404(b) was  inapplicable here because the Court had not issued a decision or judgment.  In support of the motion Defendant’s counsel affirmed that, his law firm e-mailed plaintiff’s counsel that defendant intended to offer certain charts pursuant to the voluminous writing exception into evidence the following day in support of her testimony regarding alleged marital debt incurred prior to commencement on her credit cards; that his law firm included a link to the proposed charts together with copies of the underlying credit card statements in said e-mail for plaintiff’s counsel’s review. Defendant’ counsel affirmed that he “inadvertently forgot” to offer “certain business records, reflecting the Defendant-Wife’s credit card debts and the parties’ marital expenditures, into evidence” on September 13, 2022.. The parties rested on September 14, 2022. 

Supreme Court observed that CPLR 4404(b) provides: (b) Motion after trial where jury not required. After a trial not triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside its decision or any judgment entered thereon. It may make new findings of fact or conclusions of law, with or without taking additional testimony, render a new decision and direct entry of judgment, or it may order a new trial of a cause of action or separable issue. It pointed out that it is well-established that a motion pursuant to CPLR 4404(b) “must be made within 15 days after the submission of the court’s decision”. Where a CPLR 4404(b) motion is submitted more than 15 days after the court’s decision, the movant must demonstrate good cause for the delay. The standard in reviewing these applications includes the moving party demonstrating that they could not have previously discovered this evidence or that the evidence was previously inaccessible. The Court rejected plaintiff’s contention that defendant’s application pursuant to CPLR 4404(b) was fatal because no judgment or order has been issued. The unique facts and circumstances presented here clearly fell within the contemplation of CPLR 2005 relating to law office failure which provides: …the court shall not, as a matter of law, be precluded from exercising its discretion in the interests of justice to excuse delay or default resulting from law office failure. Moreover, it is well-established that “[t]rial courts have the power to permit a litigant to reopen a case under appropriate circumstances” and in doing so the Court must consider “whether the movant has provided a sufficient offer of proof, whether the opposing party is prejudiced, and whether significant delay in the trial will result if the motion is granted.” The Court found that it was appropriate under the unique facts and circumstances presented, re-opening the trial on the limited issue of offering the credit cards and any related direct and cross-examination related to any such exhibits which may be accepted into evidence after the Court hears any relevant evidentiary objections based upon law office failure.

The court pointed out that the best evidence rule “requires the production of an original writing where its contents are in dispute and sought to be proven”. CPLR 4518(a) (the “business record exception”) provides that: (a) Generally. Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter. The voluminous writing exception (also referred to as the “Voluminous Record Rule”) “permits the admission of summaries of voluminous records or entries where, if requested, the party against whom it is offered can have access to the original data”. The voluminous writing exception is not a new principal. In Public Operating Corp. v. Weingart, the Appellate Division, First Department in 1939 wrote that:[w]hen documents introduced in evidence at a trial are voluminous and of such a character as to render it difficult for the jury to comprehend material facts without schedules containing abstracts thereof, it is within the discretion of the judge to admit such schedules provided they are based on facts in evidence, verified by the testimony of the person by whom they were prepared, and provided that the adverse party is permitted to examine them to test their correctness and to cross examine upon them before the case is submitted to the jury (257 AD 379, 382 [1 Dept.,1939]).

Family Court

Family Court holds that FCA § 1015-a allows the court to order a social services official to  transport the children in its Temporary Custody to a supervised visit, before a final order of disposition is entered

In the Matter of D.G., G.C., G.L., I.C., I.L., K.C., L.C., M.C., S.C., --- N.Y.S.3d ----, 2022 WL 17589740, 2022 N.Y. Slip Op. 22379 (Fam Ct, 2022) the Family Court observed that the Court may order a social services official, such as the Commissioner, to provide a child placed in his care with authorized services pursuant to Family Ct Act §§ 255, 1015-a and 18 NYCRR §§ 427.3(c)(1); 441.15. State regulations authorize the Petitioning Agency to make special payments on behalf of foster children for items, costs, or services that are necessary for the child but are not included in the rate for board, care, and clothing. Such payments can include expenses necessary for family visits. 18 NYCRR § 427.3(c)(1). FCA § 1015-a allows the court to order a social services official to provide or arrange for services and help in order to protect the family, rehabilitate the family, or discharge the child from foster care including visitation services. FCA § 1030 applies to cases in which subject children are in the temporary custody of the local social services district before a final order of disposition places the subject children in foster care; it provides that a parent has a right to reasonable and regularly scheduled visits and allows a parent to apply to the court for such visits. When children are placed in foster care, visitation is the most critical way for families to stay connected and to achieve family reunification. State regulations require that parents receive at least bi-weekly visits. The Family Court rejected the argument of the Petitioning Agency that an order requiring the agency to transport the children I.C. and S.C. to the second weekly supervised visit would encroach on the agency’s administrative discretion to allocate its scarce resources. The Court granted the Respondent Mother’s application to the extent that the foster care agency, Catholic Guardian Services, was directed to transport the subject children I.C. and S.C. to the second weekly supervised visit.

November 30, 2022

Appellate Division, Third Department

Navy pension credits earned prior to the marriage, but acquired during the marriage, with marital funds, were deferred compensation which was defendants separate property. However, as marital funds were utilized to purchase the pension credits, those funds were subject to equitable distribution

 

            In Szypula v Szypula, --- N.Y.S.3d ----, 2022 WL 17168939, 2022 N.Y. Slip Op. 06664 (3d Dept.,2022) Plaintiff (wife) and defendant ( husband) were married in 1996 and had two unemancipated children. The husband was employed by the United States Navy from 1987 until 1998, earning 11 years of unvested pension credits. In 2012, the husband began employment with the United States Department of State and was given the option of “buy[ing] back” the pension benefit credits earned for his previous military service. He did so, utilizing marital funds for the purchase. In 2019, the wife commenced the action for divorce. The Supreme Court held that the Navy pension credits earned prior to the marriage, but acquired during the marriage, were marital in nature and included them in its calculation of the wife’s award of the husband’s pension.

            The Appellate Division held that Supreme Court erred in classifying that portion of the Navy pension credits earned prior to the marriage as marital property. Domestic Relations Law § 236 creates a statutory presumption that all property acquired during the marriage is marital. The burden then rests with the party asserting the separate property claim to rebut the presumption. A pension benefit is, in essence, a form of deferred compensation derived from employment and an asset of the marriage that both spouses expect to enjoy at a future date. Even though workers are unable to gain access to the money until retirement, their right to it accrues incrementally during the years of employment. An employee’s interest in such a plan, except to the extent that it is earned before marriage or after commencement of a matrimonial action, is marital property.  Whether and to what extent a pension benefit is marital or separate property is determined by the time period in which the credit for the pension was earned. Here, as nine of the 11 years of credits purchased were admittedly earned prior to the marriage, they remained defendant’s separate property. The Court noted that compensation for past services earned prior to the marriage is separate property. The nine years of premarriage Navy credits were earned outside the marriage and were  based on the fruit of the titled spouse’s sole labors. As they were not due in any way to the indirect contributions of the non-titled spouse, the wife’s contention that she was entitled to an equitable share of any “appreciation” in the value of credits that had been classified as the husband’s separate property was unpersuasive. The acquisition of the separate pension credits could not serve to transform such property into a marital asset (see Ceravolo v. DeSantis, 125 A.D.3d 113, 116, 1 N.Y.S.3d 468 [3d Dept. 2015]; Burgio v. Burgio, 278 A.D.2d 767, 769, 717 N.Y.S.2d 769 [3d Dept. 2000]). However, as marital funds were utilized to purchase the pension credits, those funds were subject to equitable distribution. It remitted the matter to Supreme Court to amend the QDRO to reflect that the nine years of premarriage credit for military service from 1987 to 1996 was the husband’s separate property and to equitably distribute the marital funds utilized to purchase the credits

 

 

Where the conduct at issue is alleged to have occurred in a private residence, in order to establish the family offense of disorderly conduct, there must be a prima facie showing that the conduct was either intended to cause, or recklessly created a risk of causing, public inconvenience, annoyance, or alarm.

 

            In Matter of Kilts v Kilts 2022 WL 17168983 (3d Dept.,2022) the Appellate Division reversed an order of the family court which found that respondent had committed the family offense of disorderly conduct and issued a six-month order of protection on petitioner’s behalf. It pointed out that , “[a] person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof[,] ... [h]e [or she] engages in fighting or in violent, tumultuous or threatening behavior” (Penal Law § 240.20[1]). Pursuant to both CPL 530.11(1) and Family Court Act § 812(1), disorderly conduct’ includes disorderly conduct not in a public place.  Yet, even where the conduct at issue is alleged to have occurred in a private residence, in order for a petitioner to meet his or her burden of establishing the family offense of disorderly conduct, there must be a prima facie showing that the conduct was either intended to cause, or recklessly created a risk of causing, public inconvenience, annoyance, or alarm. The intent to cause, or recklessness in causing, public harm, is the mens rea of the offense of disorderly conduct . At the fact-finding hearing, petitioner testified that she had called the police on respondent a couple of times, and in the morning of the day respondent threatened her life, she believed she spoke with “Officer Morrison” or another sheriff’s deputy but did not have an accompanying police report. Petitioner at first stated that she never told anyone about respondent’s threat, but then stated that she told two friends about it, as well as her son-in-law. Here, petitioner failed to meet her burden of making a prima facie showing that respondent had the requisite intent to create public inconvenience, annoyance or alarm, or recklessly causing a risk of the same. Petitioner’s evidence did not establish that respondent’s actions were public in a manner that would support such a finding. Respondent’s threat against petitioner’s life would have undoubtedly caused public disorder if others had heard the threat. However, the record revealed that respondent appeared to have threatened petitioner’s life in only their company, and without having drawn the attention of others to the scene. Although the police were called on one instance, without a police report in evidence, it was impossible to determine which one of the parties – or if, in fact, a neighbor – had called the police to therefore permit a finding that respondent’s conduct rose to the level of creating a public disturbance.

 

 

The law is well established that hearsay evidence as to allegations of abuse or neglect can be admitted into evidence during a custody proceeding if corroborated by other evidence.

 

            In Matter of Sarah QQ v Raymond PP, --- N.Y.S.3d ----, 2022 WL 17168630, 2022 N.Y. Slip Op. 06659 (3d Dept.,2022) after a fact-finding hearing and a Lincoln hearing, Family Court dismissed the father’s custody modification petitions and granted the mother’s petitions, awarding her sole legal and primary physical custody of the child. On appeal the father contended that Family Court improperly excluded CPS records regarding indicated findings against the mother concerning her abuse and/or neglect of another child, which included statements by the subject child. The Appellate Division observed that although hearsay is generally not permitted, “[t]his Court has carved out an exception to the hearsay rule in custody cases involving allegations of abuse and neglect of a child, based on the Legislature’s intent to protect children from abuse and neglect as evidenced in Family Ct Act § 1046(a)(vi)” (Matter of Rosario WW. v. Ellen WW., 309 A.D.2d 984, 987, 765 N.Y.S.2d 710 [3d Dept. 2003]). Such testimony requires corroboration, though a  relatively low degree of corroboration is sufficient, and the requirement may be satisfied by any other evidence tending to support the reliability of the child’s statements.  At the fact-finding hearing, Family Court permitted the father to testify as to receiving notifications from CPS that the mother “has been indicated in some cases regarding her other children.” The mother then objected, stating that this was “irrelevant and immaterial” because it did not involve the subject child and was hearsay. The court overruled the objection on the basis that the other children resided in the same home as the subject child. Later during the fact-finding hearing, the father sought to admit certified records of Saratoga County Department of Social Services “pertaining to the parties and/or the child relative to these proceedings.” The mother objected on the basis of hearsay. The father contended that these records were admissible as business records or alternatively, under an exception based on indicated abuse and neglect findings. The attorney for the child also argued that the records fell within “the hearsay exception for them to be admitted.” Family Court did not allow the records into evidence on the basis of hearsay, remarking that “we aren’t here on a neglect proceeding. We’re here on a custody proceeding.... [N]o hearsay is permitted unless there’s an exception otherwise. And ... the fact that it may deal with abuse or neglect is not an exception to the hearsay rule.” The agency records that the father sought to admit were not in the record. A review of the father’s modification petition revealed that he noted CPS’s involvement with the mother and cited to such as establishing a change in circumstances. Specifically, he alleged there had been “ongoing child protective involvement in the mother’s home, that the subject child had indicated there was domestic abuse taking place in the home and that the child has reported that he is being neglected by the mother. The petition stated that “it was revealed through the CPS open investigation that the child is reporting that there is no food at the mother’s home and that he goes without meals.” Based on the foregoing, the Appellate Division held that Family Court erred in refusing to allow the CPS records into evidence based upon the rationale that no hearsay exception existed for abuse and neglect allegations in a Family Ct Act article 6 proceeding. Although this was not a Family Ct Act article 10 proceeding, the law is well established that hearsay evidence as to allegations of abuse or neglect can be admitted into evidence during a custody proceeding if corroborated by other evidence. The matter was reversed and remitted to Family Court for the admission of such evidence at a new fact-finding hearing on the parties’ modification petitions.

 

 

 

 

Dismissal of custody modification petition reversed and matter remitted to a different judge where  Family Court demonstrated an inability to be fair.  Based on its comments regarding its predispositions and its inappropriate comment regarding the mother’s credibility, Family Court appeared to have prejudged the case.

            In Matter of Nicole B. v Franklin A , --- N.Y.S.3d ----, 2022 WL 17168800, 2022 N.Y. Slip Op. 06672 (3d Dept.,2022) the Appellate Division held that accepting the mother’s proof as true and according her the benefit of every possible favorable inference, Family Court erred in dismissing the mother’s amended custody modification petition. It found that the mother’s proof regarding injuries suffered by the child during the father’s parenting time, taken together with the mother’s improved parenting abilities and living conditions, demonstrated a change in circumstances sufficient to overcome a motion to dismiss. It agreed with the mother and the appellate attorney for the child that the matter should be remitted to a different judge. It found that Family Court demonstrated an inability to be fair at various stages of the proceeding, starting with the first appearance, where the court indicated that it was inclined to dismiss the mother’s modification petition without a hearing, and the order on appeal made clear that the court had, sua sponte, earlier dismissed several petitions filed by the mother. At the next appearance, the court again indicated that it was disinclined to modify the custody order and later, referring to the mother, stated that “the boy who cried wolf is very large and in charge of this case.” At the opening of the fact-finding hearing, after noting that it had already held several hearings regarding this child, the court stated that if it “g[o]t the feeling as we go through that the burden of that change [in circumstances] is not going to happen ... [the court is] going to cut things off.” Then, at the close of the mother’s proof, Family Court prompted the father to make a motion to dismiss the mother’s petition, which motion the court granted. Based on Family Court’s comments regarding its predispositions and its inappropriate comment regarding the mother’s credibility, Family Court appeared to have prejudged the case. The matter was remitted for a new hearing before a different judge.

 

November 23, 2022

 

Appellate Division, Second Department  

 

Repeated and unfounded allegations of sexual abuse are a sufficient change of circumstances to warrant a best interest hearing to determine whether to modify an existing custody arrangement

 

          In Matter of McDowell v Marshall, --- N.Y.S.3d ----, 2022 WL 16827201, 2022 N.Y. Slip Op. 06248 (2d Dept.,2022) the Appellate Division observed that in order to modify an existing custody arrangement, there must be a showing of a subsequent change of circumstances so that modification is required to protect the best interests of the child. The best interests of the child must be determined by a review of the totality of the circumstances. Repeated and unfounded allegations of sexual abuse are a sufficient change of circumstances.  Further, where the initial custody arrangement is based upon an agreement between the parties, it is entitled to less weight than the determination by a court. The Family Court properly found that there was a change of circumstances sufficient to change the parties’ custodial arrangement, based upon, inter alia, the mother’s repetition of sexual abuse allegations when she sought medical treatment for the child in October 2019, after those allegations had been determined to be unfounded. Further, the evidence of a hostile relationship between the mother and the father indicated that joint decision-making was untenable, which was also a change of circumstances. It found that Family Court’s determination that there had been a change in circumstances requiring a transfer of primary physical custody and final decision-making authority to the father to ensure the best interests of the child had a sound and substantial basis in the record.

 

 

Appellate Division, Fourth Department

 

 

A parent’s right to be present for fact-finding and dispositional hearings in termination of parental rights cases is not absolute

          In Matter of Briana S.-S.--- N.Y.S.3d ----, 2022 WL 16847920, 2022 N.Y. Slip Op. 06337 ( 4^th Dept., 2022) the Appellate Division rejected the fathers contention that the court abused its discretion in denying his attorney’s request for an adjournment when the father was not transported from the facility where he was incarcerated to the courthouse on the first day of the fact-finding hearing. It held that a parent’s right to be present for fact-finding and dispositional hearings in termination cases is not absolute. When faced with the unavoidable absence of a parent, a court must balance the respective rights and interests of both the parent and the child[ren] in determining whether to proceed.  Here, the court properly proceeded in the father’s absence in order to provide the children with a prompt and permanent adjudication. Although the father was not present on the first day of the hearing, he was able to assist his attorney in cross-examining the mother after she testified during her case-in-chief, and in cross-examining a caseworker during her continued testimony on the second day of the hearing; the court balanced the need for a prompt adjudication with the father’s interests in its evidentiary rulings by, inter alia, denying petitioner’s application to play an exhibit on the first day of the hearing when the father was not present; and the father’s attorney represented his interests at the hearing. Thus, the father failed to demonstrate that he suffered any prejudice as a result of his absence. 

 

 

A direct appeal from a summary criminal contempt adjudication is appropriately entertained where there exists an adequate record for appellate review. 

 

            In S.P., v. M.P.,.--- N.Y.S.3d ----, 2022 WL 16847699 (Mem), 2022 N.Y. Slip Op. 06377 (4^th Dept.,2022) the Appellate Division reversed and vacated an  order in this  post-divorce child custody action, that fined the mother $1,000 upon findings adjudicating her in criminal contempt pursuant to Judiciary Law § 750 (A) (3). Preliminarily, it  concluded that the mother’s challenge to the summary contempt adjudications was properly raised via direct appeal from the order under the circumstances of this case. Although a direct appeal from an order punishing a person summarily for contempt committed in the immediate view and presence of the court ordinarily does not lie and a challenge must generally be brought pursuant to CPLR article 78 to allow for development of the record an appeal from such an order is appropriately entertained where, as here, there exists an adequate record for appellate review. With respect to the merits it observed that because contempt is a drastic remedy, strict adherence to procedural requirements is mandated. It found that the court committed reversible error by failing to afford the mother the requisite opportunity, after being advised that she was in peril of being adjudged in contempt, to offer any reason in law or fact why that judgment should not be pronounced.

 

 

“House Rules” imposed by the Supreme Court in a custody case were misguided and erroneous even assuming, arguendo, that the court had the authority to impose such rules

            In Burns v Greenjan, --- N.Y.S.3d ----, 2022 WL 17075145, 2022 N.Y. Slip Op. 06577(4^th Dept.,2022) a custody modification and enforcement proceeding, at an early appearance, the court suggested imposing its “house rules” on the children and the mother until the children complied with visitation. Those rules barred the children from many activities, including leaving the mother’s home except for school and church, using cell phones and other electronic devices, engaging in any extracurricular activities, and conversing with, socializing with, or visiting family and friends. Without holding a hearing, the court issued temporary orders that increased the father’s visitation time, directed the mother to enforce that visitation, and imposed the house rules. The mother and the Attorney for the Children (AFC) subsequently requested that the court remove the house rules and hold a hearing to evaluate whether the rules and the visitation schedule were in the children’s best interests. The Appellate Division held, inter alia, that the court erred in altering the terms of the parties’ custody and visitation arrangement and in imposing its house rules without conducting a hearing to determine the children’s best interests. It reinstated the provisions of the parties agreement and remitted the matter to Supreme Court for a hearing, including a Lincoln hearing, to determine whether modification of the parties’ custody and visitation arrangement was the children’s best interests. With respect to the imposition of the court’s house rules on the mother and the children, it stated that even assuming, arguendo, that the court had the authority to impose such rules (cf. Ritchie v Ritchie, 184 AD3d 1113, 1115 [4th Dept 2020]), the record failed to demonstrate that the imposition of the house rules in this case was in the children’s best interests.

            The Appellate Division held that the court erred in refusing the AFC’s repeated requests for a Lincoln hearing and in otherwise declining to consider the children’s views in determining visitation. One of the parties’ children was a teenager throughout these proceedings, and another entered his teenage years while this matter was being litigated. Although “ ‘the express wishes of children are not controlling, they are entitled to great weight, particularly where[, as here,] their age and maturity ... make[s] their input particularly meaningful’ ” With respect to the merits, it is well settled that “[a] Lincoln hearing serves the vital purpose of allowing a court to ascertain a child’s preference and concerns, as well as corroborating information obtained during the fact-finding hearing” .

            The Appellate Division rejected  the mother’s contention that the findings of contempt in appeal Nos. 2 and 5 had to be vacated because they were based on violations of the house rules. It is well settled that an appeal from a contempt order that is jurisdictionally valid does not bring up for review the prior order” (Matter of North Tonawanda First v City of N. Tonawanda, 94 AD3d 1537, 1538 [4th Dept 2012]). Thus,  the mother was bound to adhere to the orders imposing those rules “[however misguided and erroneous [they] may have been.”

 

Service of orders by the Family Court via email only, which is not a method of service provided for in Family Court Act § 1113, does not start the time to appeal to run        

 

            In Matter of Bukowski v Florentino, --- N.Y.S.3d ----, 2022 WL 17075465 (Mem), 2022 N.Y. Slip Op. 06606(4^th Dept.,2022) a proceeding to modify visitation,  the Appellate Division stated that inasmuch as the orders in appeal Nos. 1 and 2 indicated that the grandmother may have been served the orders by the court via email only, which is not a method of service provided for in Family Court Act § 1113, and the record did not otherwise demonstrate that she was served by any of the methods authorized by the statute, it could not determine when, if ever, the time to take the appeals began to run, and thus it could not be said that the grandmother’s appeals were untimely Similarly, it could not be said that the grandmother’s appeal in appeal No. 3 was untimely inasmuch as there was no evidence in the record that the grandmother was served with the order by a party or the child’s attorney, that she received the order in court, or that the Family Court mailed the order to her.

 

 

Parties to an appeal are entitled to have the record show the facts as they really happened at trial, and should not be prejudiced by an error or omission of the stenographer or the audio recording device

 

            In Wagner v Wagner, --- N.Y.S.3d ----, 2022 WL 17075272 (Mem), 2022 N.Y. Slip Op. 06600 (4^th Dept.,2022), matrimonial action,  the Appellate Division reversed an order denying plaintiffs motion for a reconstruction hearing to reconstruct portions of the testimony of plaintiff and defendant that could not be transcribed due to malfunctions of the audio recording system. It held that parties to an appeal are entitled to have that record show the facts as they really happened at trial, and should not be prejudiced by an error or omission of the stenographer or the audio recording device. Here, significant portions of the testimony of plaintiff and defendant, including testimony related to child custody and certain other issues, could not be transcribed due to malfunctions of the audio recording system, which would preclude meaningful appellate review of those issues. It remitted the matter to Supreme Court to hold a reconstruction hearing with the parties and any witnesses or evidence the court deems helpful in reconstructing, if possible, those portions of the testimony of plaintiff and defendant that could not be transcribed.

 

 

November 16, 2022

 

Appellate Division, First Department

 

 

Court deviating from the presumptive amount of temporary maintenance must explain the reasons for any deviation

            In Severny v Severny, --- N.Y.S.3d ----, 2022 WL 16557211 (Mem), 2022 N.Y. Slip Op. 06094 (1st Dept.,2022) the Appellate Division, inter alia, modified the award of temporary maintenance and remanded for reconsideration where the court  followed the calculations provided in Domestic Relations Law § 236(B)(5–a) to arrive at a presumptive award of temporary maintenance, but deviated from the presumptive amount without explaining the reasons for any deviation from the result reached by the formula factors.

 

 

Appellate Division, Second Department  

 

An application for interim counsel fees by the nonmonied spouse should not be denied or deferred until after the trial, without good cause, articulated by the court in a written decision. Plaintiff waived her objections to the defendant’s failure to meet his disclosure obligations by failing to move for sanctions under CPLR 3126 before filing the note of issue.

 

            In Fugazy v Fugazy, --- N.Y.S.3d ----, 2022 WL 16626149, 2022 N.Y. Slip Op. 06115 (2d Dept.,2022) in March 2017, the plaintiff commenced an action for a divorce and filed a note of issue and certificate of readiness on June 20, 2018. In August 2018, after the defendant moved, inter alia, to compel the defendant to appear for a further deposition and to produce certain documents, and for an award of interim counsel fees In an order dated October 3, 2018, the court, inter alia, denied plaintiff’s cross motion to compel discovery and referred to the trial court her cross motion which was for an award of interim counsel fees. In November 2018, the defendant moved, inter alia, to quash subpoenas served by the plaintiff and for a protective order. In an order dated December 13, 2018, the Supreme Court, among other things, granted the defendant’s motion. The plaintiff appealed from, inter alia, each of these orders.

 

            The Appellate Division held that taking into account all of the relevant circumstances, the Supreme Court improperly referred to the trial court that branch of the plaintiff’s cross motion which was for an award of interim counsel fees (see Domestic Relations Law § 237[a];“Because of the importance of such awards to the fundamental fairness of the proceedings, ... an application for interim counsel fees by the nonmonied spouse in a divorce action should not be denied—or deferred until after the trial, which functions as a denial—without good cause, articulated by the court in a written decision”. Here, the court erred in summarily referring that branch of the plaintiff’s cross motion which was for an award of interim counsel fees to the trial court, which functioned as a denial of that relief, and failed to articulate any reasons, much less good cause, for that determination. The evidence submitted by the plaintiff demonstrated that she was the nonmonied spouse, as the defendant earned five to seven times more income than the plaintiff in recent years. While the defendant argues that the plaintiff has funds available to her, the plaintiff “cannot be expected to exhaust all, or a large portion, of the finite resources available to her in order to pay her attorneys, particularly when the [defendant] is able to pay his own legal fees without any substantial impact upon his lifestyle. In the exercise of discretion, it awarded interim counsel fees of $75,000 subject to reallocation at trial if deemed appropriate by the court.

 

            The Appellate Division held that Supreme Court properly denied the plaintiff’s motion to compel the defendant to appear for a further deposition and to produce certain documents. The plaintiff was aware that the defendant had not responded to the demand for documents or appeared for a further deposition, yet still filed the note of issue and certificate of readiness without seeking relief. The plaintiff therefore waived her objections to the defendant’s failure to meet his disclosure obligations by failing to move for sanctions under CPLR 3126 before filing the note of issue.

 

            The Appellate Division held that Supreme Court properly granted the defendant’s motion which were to quash the plaintiff’s subpoenas and for a protective order. A subpoena duces tecum may not be used for the purpose of general discovery or to ascertain the existence of evidence. Rather, the purpose of a subpoena duces tecum is ‘to compel the production of specific documents that are relevant and material to facts at issue in a pending judicial proceeding’. Here, each of the plaintiff’s subpoenas sought information and documents similar to those sought in the plaintiff’s prior motion to compel the production of documents, which the court had denied, and the subpoenas were thus an attempt to circumvent the court’s order and improperly obtain general discovery.

 

 

Matter remitted by Appellate Division to reopen custody hearing where new developments had arisen since the orders appealed from were issued

 

            In Matter of Baker v James . --- N.Y.S.3d ----, 2022 WL 16626216, 2022 N.Y. Slip Op. 06125 (2d Dept., 2022) the Family Court, inter alia, awarded the father sole residential custody of the child subject to the mother’s parenting time as set forth in a parental access schedule. The mother appeals. The Appellate Division observed that new developments had arisen since the orders appealed from were issued, which were brought to this Court’s attention by the attorney for the child and acknowledged by the father. These developments included the father’s incarceration, allegations of neglect against the father, and the Family Court’s issuance of an order temporarily placing the child in the custody of the child’s paternal grandmother. In light of the new developments the Appellate Division held that the record was no longer sufficient to review whether the Family Court’s determination regarding custody and parental access was in the best interests of the child. It remitted the matter to the Family Court for a reopened hearing to consider these new facts and thereafter a new determination as to custody and parental access.

 

 

Appellate Division, Fourth Department

 

 

Time to take appeal under Family Ct Act § 1113 did not start to run where the order was emailed to the father’s attorney. The statute does not provide for service by the court through email or any other electronic means and therefor the father’s appeal was not untimely.

 

 

In Matter of Grayson v. Thomas S., . --- N.Y.S.3d ----, 2022 WL 5402859, 2022 N.Y. Slip Op. 05649  (4^th Dept, 2022)  the Appellate Division, inter alia, reversed the finding of neglect agreeing with the father that the evidence presented at the fact-finding hearing failed to establish by a preponderance of the evidence that he neglected the child. It rejected the argument of  petitioner and the Attorney for the Child (AFC) that the father did not take his appeal within the time period allotted by Family Court Act § 1113 and that the appeal should be dismissed as untimely. It observed that pursuant to Family Court Act § 1113, an appeal from a Family Court order “must be taken no later than thirty days after the service by a party or the child’s attorney upon the appellant of any order from which the appeal is taken, thirty days from receipt of the order by the appellant in court or thirty-five days from the mailing of the order to the appellant by the clerk of the court, whichever is earliest.” When service of the order is made by the court, the time to take an appeal does  not commence unless the order contains a statutorily required statement and there is an official notation in the court record as to the date and the manner of service of the order” (§ 1113; see Matter of Fraser v. Fraser, 185 A.D.3d 1444, 1445, 128 N.Y.S.3d 713 [4th Dept. 2020]). An appeal as of right is taken by filing the original notice of appeal with the clerk of the Family Court in which the order was made and from which the appeal is taken” (§ 1115). Here, there was no evidence in the record that the father was served with the order of fact-finding and disposition by a party or the child’s attorney, that he received the order in court, or that the Family Court mailed the order to the father. Instead, despite using a form order that provided typewritten check boxes for the two methods of service by the court mentioned in the statute (i.e., in court or by mail) (see Family Ct Act § 1113), the court crossed out the word “mailed” and edited the form to indicate that the order was emailed to, among others, the father’s attorney. The statute does not provide for service by the court through email or any other electronic means  and, contrary to the assertions of petitioner and the AFC, traditional mail and email are not indistinguishable. The statute permits court service by mail but does not provide for such service by electronic means (see § 1113). Inasmuch as the father was served the order by the court via email, which is not a method provided for in Family Court Act § 1113, and there was no indication that he was served by any of the methods authorized by the statute, the time to take an appeal did not begin to run and the father’s appeal was not untimely.

 

 

 

Supreme Court

 

 

Comity denied Egyptian Judgment of Divorce where Notice and opportunity to be heard, were not provided to the Plaintiff wife in the Egyptian proceeding.

 

In DAB v MA, --- N.Y.S.3d ----, 2022 WL 16731940, 2022 N.Y. Slip Op. 22341 (Sup Ct, 2022) the parties to this action for a divorce were citizens of Egypt, and both were of the Muslim faith. The Defendant moved from Egypt to the United States on October 7, 2017. Plaintiff moved from Egypt to the United States on or about April 2019. She resided in Staten Island, New York. He resided in Queens County. On or about December 2021, Defendant retained an attorney in Egypt to file a divorce proceeding against the Plaintiff in Egypt. The divorce was styled as a religious or customary divorce, with the full credit of the government of Egypt through their Ministry of Justice. While residing in the United States the defendant  executed a power of attorney, granting his attorney authority to represent him in the Egyptian divorce matter without being present. Defendant contended upon information and belief that on Wednesday, February 9, 2022, at 7:00 PM in the presence and under the authority of Abdelrahman Mohammed Jaafar, a legal authorized Clerk, or government official also known as “Maazoun,” within the District of Alraml at the “Personal Status Court”, and in the presence of two adult witnesses, the Defendant (in the within matter) through his attorney, Mamdouh Ali Ahmed, appeared in person before the Maazoun. According to Defendant’s counsel, the Egyptian Certificate of Divorce recited that both parties were Egyptian Nationals with residential addresses in Egypt. The certificate also stated that “after exhausting all means of arbitration pursuant to article 40 of the Maazounin code, Husband confirmed that he had divorced his wife”. The sole requirement was that the Husband utter that he divorced his wife, before the Maazoun and two witnesses after consummation of the marriage. Supreme Court held that the Egyptian Divorce Judgment did not preclude the Supreme Court from adjudicating the underlying divorce complaint under the laws of New York and in conformity with the principles of comity. It was uncontroverted that the Plaintiff wife had no notice that the Defendant husband had engaged a representative to appear before the Maazoun, Ministry of Justice on his behalf, for the purpose of obtaining a Judgment of Divorce. Notice and opportunity to be heard, were not provided to the Plaintiff wife in the Egyptian proceeding. Under these facts, and pursuant to the relevant case law, comity could not be granted to the Egyptian Certificate of Divorce, nor did it reach the standard to be granted comity as an in Rem divorce.

 

 

 

Supreme Court Awards Trial Retainer to AFC observing that . Courts are authorized to direct that a parent who has sufficient financial means to do so pay some or all of the attorney for the child’s fees         

         

          In JM, v. RM, 2022 --- N.Y.S.3d ----, 2022 WL 16704582, 2022 N.Y. Slip Op. 22339 (Sup Ct.,2022) the Attorney for the Child moved for an Order: directing that a trial retainer of $15,000 be paid to her in accordance with the Order of Appointment with regard to the pending trial which is being scheduled by the Court at the next court appearance., As of the date of her Affidavit, her retainer had not fully been paid, and there was an outstanding balance due to her. She argued that if she did not receive a trial retainer, she will have to spend multiple hours preparing for trial and participating in same without being paid. She argued that the Defendant has retained two attorneys since her appointment, but has failed to pay his full share of her retainer; that the Defendant was the monied spouse; and that her currently hourly rate is $350 per hour and a $15,000 trial retainer is appropriate. The Court noted that pursuant to the first Order Appointing an Attorney for the Child it directed that a $5,000.00 retainer be remitted to the prior AFC. After she was relieved as counsel the Court issued a second Order Appointing an Attorney for the Child dated March 29, 2022, appointing this Attorney  as the AFC. In that order it directed that a $4,000.00 retainer be remitted to her. Supreme Court granted her application pointing out that the child was entitled to representation to protect its best interests. It observed that courts are authorized to direct that a parent who has sufficient financial means to do so pay some or all of the attorney for the child’s fees (citing, inter alia, Matter of Plovnick v. Klinger, 10 A.D.3d 84, 89, 781 N.Y.S.2d 360 [2004]; see 22 NYCRR 36.4; Judiciary Law § 35 [3]; Rupp-Elmasri v. Elmasri, 8 A.D.3d 464, 778 N.Y.S.2d 289 [2004])). The Court held that the AFC was entitled to a trial retainer and that  trial retainer of $10,000.00 was an appropriate trial retainer to be paid to the AFC.  Neither party had been directed to pay 100% of the AFC’s fees or this trial retainer, and instead are paying it pursuant to the Order of Appointment, which was 70% by the Defendant and 30% by the Plaintiff.

 

 

The party seeking to restore an action to the calendar after it is dismissed has the burden of establishing “good cause” for the delay

 

          In Iyageh v Iyageh, --- N.Y.S.3d ----, 2022 WL 14725215, 2022 N.Y. Slip Op. 22327 (Sup. Ct.,2022) the Court denied the motion to restore a matter to the calendar where there were no unemancipated children and neither party submitted a judgment of divorce for twelve (12) years after they entered into a stipulation of settlement and proceeded to inquest. Supreme Court observed that pursuant to 22 NYCRR § 202.48 (a), a proposed judgment or order that must be settled or submitted on notice must be signed within 60 days of the decision’s signing and filing. Pursuant to 22 NYCRR § 202.48 (b), when parties fail to submit an order or judgment in a timely manner their action is to be deemed abandoned, unless there is good cause reason for the delay. Pursuant to CPLR § 3404, Supreme Court cases that are struck from the calendar and not restored within one (1) year are deemed abandoned and dismissed without costs for neglect to prosecute. A dismissed action may be restored to the calendar beyond the one (1) year of the statute if the plaintiff establishes a reasonable excuse for the failure to prosecute the action and a lack of prejudice to the defendants (Cawthon v. Cawthon, 276 A.D.2d 661, 661, 714 N.Y.S.2d 335 [2d Dept. 2000]).  The party seeking to restore an action to the calendar after it is dismissed has the burden of establishing “good cause” for the delay (Madigan v. Klumpp, 173 A.D.2d 593, 593—94, 570 N.Y.S.2d 176 [2d Dept. 1991][the Appellate Division found that the husband failed to show good cause for not submitting the judgment of divorce for over a year where he asserted he believed the wife was responsible for filing]; see also Seeman v. Seeman, 154 A.D.2d 584, 585—86, 546 N.Y.S.2d 413 (2d Dept. 1989)[no good cause found where law firm misplaced or forgot to file the judgment of divorce for more than two (2) years]). Here, plaintiff offered no explanation for his failure to file a proposed judgment of divorce packet for twelve (12) years.

           

 

Links to Statewide Appellate Division Rules of Practice, Electronic Filing Rules and Local Rules (As of November 20, 2022)

 

Appellate Division Statewide Rules of Practice (22 NYCRR Part 1250) (As amended November 25, 2019)

 

Appellate Division Statewide Electronic Filing Rules (Part 1245) (December 12, 2017)

 

Appellate Division First Department –

 

Appellate Division Rules of Practice of the First Department - (22 NYCRR) Part 600

 

Appellate Divison Second Department -

 

Appellate Division Rules of Practice of the Second Department (22 NYCRR 670) (As amended July 1, 2020)

 

Appellate Divison Second Department E-filing Technical Guidelines

 

Appellate  Division, Third Department –

 

Appellate Division Rules of Practice in the Third Department (Part 850) (As amended July 15, 2022)

 

Appellate Divison, Fourth Department -

 

Appellate Division Rules of Practice in the Fourth Department (22 NYCRR Part 1000) (As amended August 4, 2022)

 

 

 

 

November 1, 2022

 

Court of Appeals

 

 

Court of Appeals holds that the Interstate Compact on the Placement of Children (ICPC) does not apply to out-of-state, noncustodial parents seeking custody of their children who are in the custody of New York social services agencies.

 

 

            In the Matter of D.L., v. S.B.  --- N.E.3d ----, 2022 WL 14123151, 2022 N.Y. Slip Op. 05940 (2022) the Court of Appeals held that the Interstate Compact on the Placement of Children (ICPC) an agreement among the states to follow certain procedures in connection with sending children across state borders “for placement in foster care or as a preliminary to a possible adoption” (Social Services Law § 374–a [1] [art III] [a]) does not apply to out-of-state, noncustodial parents seeking custody of their children who are in the custody of New York social services agencies.

 

            Petitioner father, a North Carolina resident, and respondent mother, a New York resident, were the parents of the subject child. In 2012, respondent Suffolk County Department of Social Services (DSS) removed the child from the custody of mother, who admitted neglecting the child, and placed the child in foster care. Father exercised his right to appear in the neglect proceeding and, in 2013, an application was made under the ICPC to North Carolina for the approval of father’s home in that state as a suitable placement for the child. The relevant North Carolina authority denied the ICPC request. The child remained in foster care with the goal of reunification with mother and, according to father, he maintained contact with and continued to visit with the child. Thereafter, in 2017, the father commenced these custody proceedings, arguing that it was in the child’s best interests to award him sole custody. DSS argued that the child could not be placed with father in light of the North Carolina authority’s 2013 refusal to consent to the placement. Family Court dismissed father’s petitions without conducting a hearing. It held in pertinent part that the requirements of the ICPC applied to placement of the child with father, even though he was an out-of-state noncustodial parent, because the child was in the custody and care of DSS in New York. The Appellate Division affirmed (183 A.D.3d 565, 121 N.Y.S.3d 644 [2nd Dept. 2020]), holding that Family Court properly determined that the ICPC applied because “the child was in the custody of DSS and ... father resided in North Carolina” The Court concluded that the petitions for custody were correctly dismissed without a hearing inasmuch as the relevant North Carolina authority denied approval of father’s 2013 ICPC request.

 

            The Court of Appeals reversed. It observed that the ICPC is an agreement among the 50 states, the District of Columbia, and the U.S. Virgin Islands. It is a non-federal agreement and is “construed as state law” in each adopting state (McComb v. Wambaugh, 934 F.2d 474, 479 [3d Cir 1991]).The ICPC governs the “interstate placement of children” (Social Services Law § 374–a [1] [art I]). The ICPC provides at the outset that it applies when a state agency seeks to send children to a receiving state to be placed in foster care or for possible adoption. Specifically, article III of the ICPC provides: “(a) No sending agency shall send ... into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this article ...“(b) Prior to sending ... any child ... into a receiving state for placement in foster care or as a preliminary to a possible adoption, the sending agency shall furnish the appropriate public authorities in the receiving state written notice ...” (emphasis added). (Social Services Law § 374–a [art III] [a], [b]). “Placement,” in turn, is defined as “the arrangement for the care of a child in a family free or boarding home or in a child-caring agency or institution” (id. § 374–a [art II] [d]).

 

            The Court of Appeals  observed that by its terms, the ICPC governs the out-of-state “placement” of children “in foster care or as a preliminary to possible adoption” (Social Services Law § 374–a [1] [art III] [a] & [b]). The language of the statute thus unambiguously limits its applicability to cases of placement for foster care or adoption—which are substitutes for parental care that are not implicated when custody of the child is granted to a noncustodial parent. Applying the ICPC to noncustodial parents would be inconsistent with the statutory requirement that, when a child is placed pursuant to the ICPC, “[t]he sending agency shall continue to have financial responsibility for support and maintenance of the child during the period of the placement” (Social Services Law § 374–a [1] [art V] [a]). As the United States Court of Appeals for the Third Circuit observed, “[t]o construe the return of a child to [a] parent as a ‘placement’ within the Compact would result in the anomalous situation of imposing a financial obligation upon a sending state that supersedes parents’ duty to support their children” (McComb, 934 F.2d at 480). There is nothing in the statutory language to indicate that the ICPC was intended to apply to out-of-state parents seeking custody of their children and the statutory text confines application of the ICPC to children placed in foster care or preliminary adoptive homes. It noted that its decision in Matter of Shaida W., 85 N.Y.2d 453, 626 N.Y.S.2d 35, 649 N.E.2d 1179 [1995]) did not compel a contrary conclusion. In that case, the question before the Court was whether the ICPC applied when children, who were in the care and custody of a New York social services agency, were taken to another state by their grandmother after the agency placed the children into temporary foster care with the grandmother. Although article VIII(a) provides that the ICPC does not apply to “[t]he sending or bringing of a child into a receiving state by [a] parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or [a] guardian and leaving the child with any such relative or non-agency guardian in the receiving state” (Social Services Law § 374–a [1] [art VIII] [a]), it explained that “the children were not legally ‘sent’ to California by their grandmother”. Rather, “[t]he official custodian” of the children was the “Department of Social Services of New York City,” and it was the agency that “authorized the children to be ‘sent’ ” to California within the meaning of the statute. That is, the children were sent by a social services agency to a “kinship foster care placement” in another state and, as such, this Court concluded that the ICPC applied. Here, in contrast, placing a child with an out-of-state parent did not involve foster care or adoption and, thus, Shaida W. did  not control. The Court pointed out that its reading of the ICPC as being applicable only to placement of a child for foster care or as a preliminary to adoption, and not to custody of a noncustodial parent, comports with the intent reflected in the Compact’s legislative history and the underlying statutory purpose. Although the ICPC does not apply to placement with a parent, the Family Court Act contains other effective means to ensure the safety of a child before awarding custody to an out-of-state parent. Family Court retains jurisdiction over custody proceedings and has a broad array of powers under the Family Court Act to ensure a child’s safety.

 

 

 

Appellate Division, First Department

 

 

DRL § 237, applies to parties litigating the issue of standing as a “parent” under DRL § 70. Where the award was issued toward the end of litigation and covered almost all of respondent’s claimed counsel fees, it was, in effect, a final order and  Petitioner was entitled to an evidentiary hearing as to the extent and value of respondent’s counsel fees

 

            In Matter of Gunn v Hamilton, --- N.Y.S.3d ----, 2022 WL 10207780, 2022 N.Y. Slip Op. 05790 (1^st Dept.,2022) the Appellate Division pointed out that in Matter of Kelly G. v. Circe H., 178 A.D.3d 533, 117 N.Y.S.3d 171 (1st Dept. 2019) it determined that Domestic Relations Law § 237, in consonance with the Court of Appeals’ decision in Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488 (2016), applies to parties litigating the issue of standing as a “parent” under Domestic Relations Law § 70. It agreed with petitioner that the motion court’s framing of the counsel fee award as an “interim” order was incorrect. Given that the award was issued toward the end of litigation and covered almost all of respondent’s claimed counsel fees, costs, and expenses, approximately $2.7 million, it found that the fee award was, in effect, a final order. Accordingly, petitioner, who vigorously challenged the motion, was entitled to an evidentiary hearing as to the extent and value of respondent’s counsel fees. It vacated the order and remand the matter to the motion court for an evidentiary hearing on reasonable counsel fees.

 

            The Appellate Division also vacated the finding of criminal contempt premised on petitioner’s noncompliance with a June 28, 2021 order. Even if the order were not vacated, the procedural defects apparent in this proceeding warranted reversal. The record made clear that the court held a criminal contempt proceeding. Accordingly, petitioner was entitled to the same rights afforded a criminal defendant, including a right to be heard, to have her guilt proven beyond a reasonable doubt, and to meaningful representation of counsel. Petitioner did not receive the benefit of these procedural safeguards.

 

 

 Respondent was not denied due process when the Family Court sua sponte conformed the petition to the proof adduced during the fact-finding hearing

 

             In Matter of Jose M. R., v. Arian S., --- N.Y.S.3d ----, 2022 WL 10207779, 2022 N.Y. Slip Op. 05816 (1^st Dept.,2022) a family offense proceeding the Appellate Division held that Respondent was not denied due process when the Family Court sua sponte conformed the petition to the proof adduced during the fact-finding hearing, as he could not have been surprised or prejudiced by his own admissions (see Matter of Oksoon K. v. Young K., 115 AD3d 486, 487 [1st Dept 2014], lv denied, 24 NY3d 902 [2014] ).

           

 

 

A parent who has complied with the recommended service plan has failed to plan for the child’s future if she “fails to gain insight into her parenting problems or take responsibility for the issues that prompted foster care placement in the first place.

 

            In  Matter of Patrice H. W., --- N.Y.S.3d ----, 2022 WL 10207773, 2022 N.Y. Slip Op. 05820 (1^st Dept.,2022) the Appellate Division found that the finding of permanent neglect with respect to the child Patrice was supported by clear and convincing evidence. Respondent failed to plan for the child, evidenced by her refusal to acknowledge the problems that led to the foster care placement of the child in the first place, blaming the children, the biological mother, and the agency and denying that the children were subject to sexual abuse. Regardless of whether a parent has complied with the recommended service plan, she has failed to plan for the child’s future if she “fails to gain insight into her parenting problems or take responsibility for the issues that prompted foster care placement in the first place.

 

 

Finding of neglect against the mother was supported by evidence establishing that she refused to enforce a final order of protection issued against her boyfriend and in favor of the child in a prior neglect proceeding

 

In Matter of Taveon J.,--- N.Y.S.3d ----, 2022 WL 4830386, 2022 N.Y. Slip Op. 05512 (1st Dept.,2022) the Appellate Division found that the finding of neglect against the mother was supported by a preponderance of the evidence establishing that she placed the children’s physical and psychological safety in imminent risk of impairment by refusing to enforce a final order of protection issued against her boyfriend and in favor of the child Taveon in a prior neglect proceeding. Taveon, who was then 11 years old, was heard crying on a tape of a 911 call, in which he reported that the mother’s boyfriend allegedly choked her and then threatened to kill Taveon; the caseworker also testified that Taveon was crying at the police station after the incident. This evidence established, among other things, that the mother risked Taveon’s emotional health by failing to enforce the order of protection issued on his behalf.

 

 

Appellate Division, Second Department

 

Where a material term of a stipulation is  left for future negotiations the agreement  constituted “a mere agreement to agree,” is unenforceable

 

            In Pinto v Pinto, --- N.Y.S.3d ----, 2022 WL 6850257, 2022 N.Y. Slip Op. 05728 (2d Dept.,2022) the parties stipulation of settlement   that was incorporated, but not merged, into the judgment of divorce recited that it was the parties’ intention that the children would attend college, and provided that the children, with both parties’ cooperation, would apply for “merit and need based financial aid” to cover the cost of attending college. The stipulation further provided that, “should there be necessary costs and expenses once financial aid, merit aid and scholarships are exhausted[,] the parties shall consult and try to reach an agreement on payment of these cost[s] and expenses at the time those cost[s] and expenses arise. If the parties cannot agree they can address the issue in a Court of competent jurisdiction.”

 

            In 2019, the plaintiff moved, inter alia, in effect, to direct the defendant to reimburse the plaintiff for the repayment of one-half of the total amount of the student loans incurred for the payment of the college costs and expenses for the parties’ children, based on the above-quoted provision of the stipulation. The plaintiff   averred, inter alia,  with the defendant about her contributing to the cost of the children’s education on at least two occasions while the children were attending college, and the defendant deferred discussion of the matter to a later time.  The defendant averred that the parties consulted with each other on the issue of the children’s college expenses, that they agreed that the plaintiff would pay those expenses, and that the plaintiff did so. Supreme Court, denied plaintiff’s motion. The Appellate Division affirmed.

 

            The Appellate Division held that the provision of the stipulation upon which the plaintiff relied in seeking reimbursement from the defendant required only that “the parties shall consult and try to reach an agreement on payment of [the children’s college-related] cost[s] and expenses.” This provision did not identify an amount or percentage of such costs or expenses to be paid by either party, and did not impose an obligation upon either party to make any such payment. Rather, “a material term [was] left for future negotiations” (Joseph Martin, Jr., Delicatessen, Inc. v. Schumacher, 52 N.Y.2d 105, 109, 436 N.Y.S.2d 247, 417 N.E.2d 541). Thus, the subject provision constituted “a mere agreement to agree,” and, as such, was unenforceable (id. at 109, 436 N.Y.S.2d 247, 417 N.E.2d 541; see Silverman v. Silverman, 249 A.D.2d 378, 379, 671 N.Y.S.2d 145; Flanel v. Flanel, 152 A.D.2d 536, 543 N.Y.S.2d 501).

 

 

Where there is no right to counsel pursuant to FCA § 262, claims of ineffective assistance of counsel in civil litigation will not be entertained absent extraordinary circumstances

 

            In Matter of Buljeta v Fuchs, --- N.Y.S.3d ----, 2022 WL 6849583, 2022 N.Y. Slip Op. 05687 (2d Dept.,2022) the Appellate Division held that situations where there is no statutory right to counsel pursuant to Family Court Act § 262, claims of ineffective assistance of counsel in the context of civil litigation will not be entertained where extraordinary circumstances are absent (see Matter of Nassau County Dept. of Social Servs. v. King, 149 A.D.3d 942, 943, 53 N.Y.S.3d 130; Matter of Lorys v. Powell, 116 A.D.3d 1047, 1048, 983 N.Y.S.2d 892).

 

 

Where the father’s  failure to pay child support is not willful a money judgment should be entered in favor of the mother for the amount of child support arrears

 

 

            In Matter of Santman v Schonfeldt, --- N.Y.S.3d ----, 2022 WL 6846934 (Mem), 2022 N.Y. Slip Op. 05693 (2 Dept.,2022) a child support enforcement proceeding,  the Family Court denied the petition and dismissed the proceeding. The Appellate Division found that the mother presented evidence that the father had made only one child support payment during the relevant period, and that he owed basic child support of $19,591.43. Therefore, the mother met her prima facie burden. The father testified, and presented proof, that he intended to pay, but his employer and/or the Support Collection Unit had not properly followed through with the wage garnishment procedure. The Support Magistrate found the father’s testimony credible. The Appellate Division held that under the circumstances of this case, the father’s showing was sufficient to establish that his failure to pay was not willful. Nevertheless, as there was competent proof at the hearing that the father failed to obey a lawful order of child support (see Family Ct Act § 454[1]), a money judgment should have been entered in favor of the mother for the amount of child support arrears that accrued during the relevant period (see Family Ct Act  §§ 454[2][a]; 460[1]). It remitted the matter to the Family Court, for the entry of an appropriate money judgment.

 

 

Denial of husbands pendente lite motion to sell portion of wine collection to pay marital debt  was in keeping with purposes of DRL § 236(B)(2)(b)(1), to preserve the status quo and to ensure that neither party would be prejudiced

 

            In Davidoff v Davidoff, --- N.Y.S.3d ----, 2022 WL 10781782 (Mem), 2022 N.Y. Slip Op. 05835 (2d Dept.,2022) in July 2018, the plaintiff commenced this action for a divorce. In October 2018, the Supreme Court denied the defendants motion inter alia, for permission to sell a portion of the parties’ wine collection pendente lite in order to pay marital debt and expenses. The Appellate Division affirmed. It observed that Domestic Relations Law § 236(B)(2)(b)(1) provides, in pertinent part, that during the pendency of a matrimonial action, “neither party shall sell ... or in any way dispose of, without ... consent of the other party in writing, or by order of the court, any property (including ... personal property ...) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with this action.” The record supported the Supreme Court’s determination The parties’ affidavits submitted in connection with the motion reflected factual disputes regarding, inter alia, the size and estimated value of the wine collection, the parties’ past course of conduct during the marriage with respect to sales from the wine collection, and the parties’ respective alleged irresponsibility or responsibility with regard to household finances. In light of these factual disputes, denial of the subject branch of the motion was appropriate and in keeping with the statutory purposes of Domestic Relations Law § 236(B)(2)(b)(1), to preserve the status quo and to ensure that neither party would be prejudiced by the potential “unilateral dissipation of marital assets”.

 

           

Second Department reiterates rule that modifications of pendente lite awards should rarely be made by an appellate court and then only under exigent circumstances

 

            In Davidoff v Davidoff, --- N.Y.S.3d ----, 2022 WL 10778464 (Mem), 2022 N.Y. Slip Op.  (2d Dept.,2022) the parties were married in 2008 and had two children. In July 2018, the plaintiff commenced the action for a divorce. In an order dated January 4, 2021, the Supreme Court, inter alia, granted the plaintiff’s motion for an award of pendente lite child support to the extent of directing the defendant to pay pendente lite child support in the sum of $5,059 per month, retroactive pendente lite child support in the sum of $40,472 at a rate of $1,700 per month, and 100% of the children’s add-on expenses. The Appellate Division affirmed. It held that  modification of the pendente lite child support award was not warranted. Modifications of pendente lite awards should rarely be made by an appellate court and then only under exigent circumstances, such as where a party is unable to meet his or her financial obligations or justice otherwise requires. Any perceived inequity in the award of pendente lite child support can best be remedied by a speedy trial, at which the parties’ financial circumstances can be fully explored. The defendant failed to demonstrate the existence of any exigent circumstances warranting a modification of the pendente lite child support award made by the Supreme Court.

 

 

Appellate Division, Third Department

 

 

Presumption that visitation with a noncustodial parent is in the best interests of the child, may be overcome where the party opposing visitation sets forth compelling reasons and substantial evidence that such visitation would be detrimental or harmful to the child’s welfare

 

        In Matter of Ajmal I v Latoya J, --- N.Y.S.3d ----, 2022 WL 11379771, 2022 N.Y. Slip Op. 05912 (3d Dept.,2022) pursuant to a February 2012 order, the mother was awarded sole legal and physical custody of the child, while the father, who had failed to appear was granted the right to petition for custody and/or visitation in the future. The father left New York in 2009 and had not resided in the state since. The parties’ relationship had generally been tense. Given the father’s prior menacing and assaultive behavior toward the mother, she remained afraid of him and refused to give him her address. In November 2019, the mother learned that the father had offered money on social media to anyone who gave him the mother’s address, then posted that he had obtained the address and would “[s]ee [her] soon.” The mother filed a family offense petition seeking an order of protection against the father. The father responded by filing a custody modification petition and seeking, for the first time since the issuance of the 2012 custody order, visitation with the child. Family Court issued an order of protection in favor of the mother. Family Court then conducted a fact-finding hearing on the father’s modification petition, and granted the  father two hours of supervised visitation.

 

            The Appellate Division agreed with the mother and the attorney for the child that there was no basis for the award of visitation here. It reversed and dismissed the father’s petition in its entirety.  It held that while visitation with a noncustodial parent is presumed to be in the best interests of the child, that “presumption may be overcome where the party opposing visitation sets forth compelling reasons and substantial evidence that such visitation would be detrimental or harmful to the child’s welfare. This standard of substantial proof should not be interpreted in such a way as to heighten the burden, of the party who opposes visitation, to rebut the presumption by a preponderance of the evidence. ( Matter of Granger v. Misercola, 21 N.Y.3d 86, 92, 967 N.Y.S.2d 872 [2013]). As such, the party opposing visitation will meet his or her burden with sworn testimony or documentary evidence that visitation would be harmful to the child or that the noncustodial parent has forfeited the right of access. It was undisputed that the father had not lived with the child in over a decade and had only infrequently visited the child due to, among other things, his moving out of the area and frequently relocating around the United States. The father made no effort to seek a formal award of visitation until 2019, more than seven years after the issuance of the 2012 custody order and over two years after he had last seen the child. This failure by the father to seek a visitation order or otherwise “avail himself of opportunities for visitation over a lengthy period of time  is appropriately taken into account in considering whether visitation is appropriate. Moreover, the mother testified as to how the father behaved in an irresponsible and harmful manner on the occasions when he did interact with the child. The mother described how, during a 2014 visit with the child during his winter break from school, the father cut off contact with her and left the child with relatives so that he could attend a party and travel to New York City, leaving the mother unaware of the child’s whereabouts until the child called her several days later. The father did not see the child again until a 2017 family trip to an amusement park, and the mother testified that he upset the child then by, among other things, live streaming the visit, including the child’s personal conversations, over social media. The mother further set forth how the father did not have frequent electronic contact with the child after that visit and, when that contact did occur, the child was upset by it. The attorney for the child confirmed that the teenage child was upset by interactions with the father for a variety of reasons and did not wish to see him. The child’s preference to have no in-person contact with the father was not dispositive, but is entitled to “considerable weight” given the child’s age . The foregoing satisfied the mother’s burden of establishing that any visitation with the father would be harmful to the child.

 

 

Change in circumstances standard does not apply where the parties’ separation agreement was never memorialized in a court order or otherwise judicially sanctioned. Fundamental purpose” of Lincoln hearing is to ascertain a child’s preferences and concerns.   

 

            In Theodore P v Debra P, 2022 WL 11378159 (3d Dept.,2022) pursuant to a March 2018 separation agreement, which was to be incorporated but not merged into a subsequent judgment of divorce, the parties agreed to joint legal custody of the child and to share physical custody on a “substantially equal basis in a mutually acceptable manner.” The father commenced a divorce action in November 2019 requesting that relief, while the mother sought sole legal and physical custody. The Appellate Division rejected the father’s argument that the Supreme Court erred in proceeding directly to a best interests analysis without first considering whether a change in circumstances occurred since execution of the separation agreement. A party seeking to modify a judicially sanctioned custody arrangement must make a threshold showing of a change in circumstances that warrants an inquiry into whether modification of the arrangement is in the child’s best interests. However, that standard does not apply where the parties’ separation agreement was never memorialized in a court order or otherwise judicially sanctioned. As such, the separation agreement was but a factor to consider in resolving the custody dispute. It followed that the court did not err in denying the father’s motion for a directed verdict based upon the mother’s alleged failure to demonstrate changed circumstances.

 

            The Appellate Division rejected the fathers argument that Supreme Court abused its discretion in holding a Lincoln hearing because there was no trial testimony requiring corroboration by the child. Corroboration of trial testimony and documentary evidence may be “a recognized purpose of a Lincoln hearing,” but the “fundamental purpose” of such a hearing “is to ascertain a child’s preferences and concerns.” It concluded that the Lincoln hearing was a provident exercise of the court’s discretion.

 

 

Supreme Court

 

           

Supreme Court holds that in determining the best interests of a companion animal under DRL § 236 [B] [5] [d] [15], the reviewing court should consider the totality of circumstances by weighing relevant factors applicable to the care of a companion animal

 

            In L.B., v. C.C.B., --- N.Y.S.3d ----, 2022 WL 7855133, 2022 N.Y. Slip Op. 22320 (Sup Ct, 2022) an action for a divorce the parties were married for ten years. The Supreme Court pointed out that the sole significant asset contested by the parties was  custody and possession of their two dogs. It observed that effective October 25, 2021, DRL § 236 [B] [5] [d] [15] provides the  standard to apply in pet custody cases. It  requires courts to consider “the best interest” of a companion animal when awarding possession in a divorce or separation proceeding. It held that in determining the best interests of a companion animal under DRL section 236 [B] [5] [d] [15], the reviewing court should consider the totality of circumstances by weighing relevant factors applicable to the care of a companion animal. Salient factors for a court to consider include: the involvement, or absence, of each party in the companion animal’s day-to-day life; the availability and willingness of each party to care for the companion animal; each party’s involvement in health and veterinary care decisions; the quality of each party’s respective home environment; the care and affection shown towards the companion animal; and each party’s fitness and caretaking abilities. No single factor is dispositive. It held that in determining equitable distribution of the parties’ companion animals, the court was guided by what is in the doges best interest. In weighing the factors relevant to the dogs best interest, the court must also evaluate the testimony, character, and sincerity of all the parties involved (citing “see generally” Eschbach, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260). After weighing the factors that would further the dogs best interest, including factors such as which party was primarily responsible for their day-to-day needs and for maintaining their health and veterinary care; which party, if any, spends more time with the dogs on a regular basis; and the quality of the home environment as one in which the dogs would “live, prosper, love and be loved,” as well as evaluating the testimony, character and sincerity of the parties, the court found that it was in the dogs best interest to remain together in Defendant’s sole care. The care and custody of the parties’ Rottweilers was awarded to Defendant.

 

 

 Administrative Order AO/141a/22 Amended New Rules Governing Matrimonial Actions

 

22 NYCRR 202.16, 22 NYCRR 202.16-a,  22 NYCRR 202.16-b, and 22 NYCRR 202.18 of the Uniform Rules for the Supreme Court and the County Court (“Uniform Rules”) are the “matrimonial rules”. Effective July 1, 2022, 22 NYCRR 202.16 (the matrimonial rules) were revised to, among other things specifically incorporate 22 NYCRR Part 202 (See AO142/22, amended on June 13, 2022) which contains many of the commercial division rules effective February 1, 2021.

 

On July 27, 2022, Administrative Order  AO/141a/22 revised the Uniform Civil Rules for the Supreme Court and the County Court  including harmonization with the rules governing matrimonial actions effective immediately to  supersede solely the provisions of AO/270/20 that are inconsistent with its terms and provisions. The revision corrected typographical errors in AO/141/22.

 

 

Administrative order AO 370/21, amended Rules Governing the Consensual Electronic filing Matrimonial Actions

Administrative order AO 370/21, effective December 21, 2021, contains the current list of counties in which e-filing is permitted in matrimonial actions. Except as otherwise required by AO 370/21 or its Appendix B, the consensual e-filing rules in 22 NYCRR § 202.5-b apply.  Appendix B, effective December 21, 2021 contains amended Rules Governing the Consensual Electronic filing of Matrimonial Actions in the Supreme Court.

Matrimonial actions

 

Matrimonial actions are defined in Administrative order AO 370/21, Appendix B as those actions set forth in CPLR § 105(p) and Domestic Relations Law § 236, as well as plenary actions for child support, custody or visitation, an order of protection or an application under the Child Parent Security Act where: the action is contested, and addresses issues including, but not limited to, alimony, counsel fees, pendente lite, maintenance, custody and visitation, child support or the equitable distribution of property or the action is uncontested; or the action is a post-judgment application that either (1) addresses an underlying matrimonial action that was commenced electronically, or (2) is electronically initiated with the purchase of a new index number.

No papers or documents filed by electronic means In matrimonial actions are available to the public. The existing personal service requirements in the domestic relations law, family court act, or civil practice law and rules are not abrogated.

Forensic evaluations may not be efiled

Unless otherwise directed by the court, evaluations or investigations of the parties or a child by a forensic mental health professional (including notes) and reports by a probation service or child protective service in proceedings involving custody, visitation, neglect or abuse and other matters involving children may not be filed electronically.

Matrimonial post-judgment applications

Service of the initiating documents in post-judgment applications subject to consensual e-filing must be effectuated in hard copy and accompanied by a notice of electronic filing (for post-judgment matrimonial proceedings).  Proof of hard copy service must be filed by electronic means.

Recent Legislation - Family Court Act § 842-a

 

Laws of 2022, Ch 577, amended the opening paragraph Family Court Act § 842-a, subdivisions 1, 2 and 3  effective October 18, 2022  by requiring the court to inquire of the respondent and the protected party as to the existence and location of a firearm owned or possessed by the defendant upon issuance of a temporary order of protection.

 

Laws of 2022, Ch 577, amended Family Court Act 842-a (1) opening paragraph, effective October 18,2022, to read as follows:

 

     Suspension  of  firearms  license and ineligibility for such a license

   upon the issuance of a temporary order of protection. Whenever a  tempo-

   rary  order  of  protection  is issued pursuant to section eight hundred

   twenty-eight of this article, or pursuant to article  four,  five,  six,

   seven  or ten of this act the court shall inquire of the respondent and,

   outside of the presence of the respondent, the  petitioner  or,  if  the

   petitioner  is  not  the  protected  party,  any party protected by such

   order, if the court has  reason  to  believe  that  such  petitioner  or

   protected  party  would  have  actual  knowledge  or reason to know such

   information, as to the existence and location of any firearm,  rifle  or

   shotgun owned or possessed by the respondent and:

 

Laws of 2022, Ch 577, amended Family Court Act 842-a (2) opening paragraph, effective October 18,2022, to read as follows:

 

     Revocation  or  suspension  of  firearms license and ineligibility for

   such a license upon the issuance of an order of protection. Whenever  an

   order  of  protection is issued pursuant to section eight hundred forty-

   one of this part, or pursuant to article four, five, six, seven  or  ten

   of  this  act  the court shall inquire of the respondent and, outside of

   the presence of the respondent, the petitioner or, if the petitioner  is

   not the protected party, any party protected by such order, if the court

   has reason to believe that such petitioner or protected party would have

   actual knowledge or reason to know such information, as to the existence

   and  location of any firearm, rifle or shotgun owned or possessed by the

   respondent and:

 

Laws of 2022, Ch 577, amended Family Court Act 842-a (3) opening paragraph, effective October 18,2022, to read as follows:

 

     Revocation or suspension of firearms  license  and  ineligibility  for

   such  a  license upon a finding of a willful failure to obey an order of

   protection or temporary order of protection. Whenever a  respondent  has

   been  found,  pursuant to section eight hundred forty-six-a of this part

   to have willfully failed to obey an order  of  protection  or  temporary

   order  of  protection  issued  pursuant  to  this  act  or  the domestic

   relations law, or by this court or by a court of competent  jurisdiction

   in another state, territorial or tribal jurisdiction, in addition to any

   other  remedies  available pursuant to section eight hundred forty-six-a

   of this part the court shall inquire of the respondent and, outside  the

   presence  of the respondent, the petitioner or, if the petitioner is not

   the protected party, any party protected by such order, if the court has

   reason to believe that such petitioner or  protected  party  would  have

   actual knowledge or reason to know such information, as to the existence

   and  location of any firearm, rifle or shotgun owned or possessed by the

   respondent and:

 

 

 

October 26, 2022

 

Recent Legislation – Family Court Act § 842-a

 

Laws of 2022, Ch 577, amended the opening paragraph Family Court Act § 842-a, subdivisions 1, 2 and 3  effective October 18, 2022  by requiring the court to inquire of the respondent and the protected party as to the existence and location of a firearm owned or possessed by the defendant upon issuance of a temporary order of protection.

 

Laws of 2022, Ch 577, amended Family Court Act 842-a (1) opening paragraph, effective October 18,2022, to read as follows:

 

     Suspension  of  firearms  license and ineligibility for such a license

   upon the issuance of a temporary order of protection. Whenever a  tempo-

   rary  order  of  protection  is issued pursuant to section eight hundred

   twenty-eight of this article, or pursuant to article  four,  five,  six,

   seven  or ten of this act the court shall inquire of the respondent and,

   outside of the presence of the respondent, the  petitioner  or,  if  the

   petitioner  is  not  the  protected  party,  any party protected by such

   order, if the court has  reason  to  believe  that  such  petitioner  or

   protected  party  would  have  actual  knowledge  or reason to know such

   information, as to the existence and location of any firearm,  rifle  or

   shotgun owned or possessed by the respondent and:

 

Laws of 2022, Ch 577, amended Family Court Act 842-a (2) opening paragraph, effective October 18,2022, to read as follows:

 

     Revocation  or  suspension  of  firearms license and ineligibility for

   such a license upon the issuance of an order of protection. Whenever  an

   order  of  protection is issued pursuant to section eight hundred forty-

   one of this part, or pursuant to article four, five, six, seven  or  ten

   of  this  act  the court shall inquire of the respondent and, outside of

   the presence of the respondent, the petitioner or, if the petitioner  is

   not the protected party, any party protected by such order, if the court

   has reason to believe that such petitioner or protected party would have

   actual knowledge or reason to know such information, as to the existence

   and  location of any firearm, rifle or shotgun owned or possessed by the

   respondent and:

 

Laws of 2022, Ch 577, amended Family Court Act 842-a (3) opening paragraph, effective October 18,2022, to read as follows:

 

     Revocation or suspension of firearms  license  and  ineligibility  for

   such  a  license upon a finding of a willful failure to obey an order of

   protection or temporary order of protection. Whenever a  respondent  has

   been  found,  pursuant to section eight hundred forty-six-a of this part

   to have willfully failed to obey an order  of  protection  or  temporary

   order  of  protection  issued  pursuant  to  this  act  or  the domestic

   relations law, or by this court or by a court of competent  jurisdiction

   in another state, territorial or tribal jurisdiction, in addition to any

   other  remedies  available pursuant to section eight hundred forty-six-a

   of this part the court shall inquire of the respondent and, outside  the

   presence  of the respondent, the petitioner or, if the petitioner is not

   the protected party, any party protected by such order, if the court has

   reason to believe that such petitioner or  protected  party  would  have

   actual knowledge or reason to know such information, as to the existence

   and  location of any firearm, rifle or shotgun owned or possessed by the

   respondent and:

 

 

 

Court of Appeals

 

Court of Appeals holds that the Interstate Compact on the Placement of Children (ICPC) does not apply to out-of-state, noncustodial parents seeking custody of their children who are in the custody of New York social services agencies.

 

 

            In the Matter of D.L.,v. S.B.  --- N.E.3d ----, 2022 WL 14123151, 2022 N.Y. Slip Op. 05940 (2022) the Court of Appeals held that the Interstate Compact on the Placement of Children (ICPC) an agreement among the states to follow certain procedures in connection with sending children across state borders “for placement in foster care or as a preliminary to a possible adoption” (Social Services Law § 374–a [1] [art III] [a]) does not apply to out-of-state, noncustodial parents seeking custody of their children who are in the custody of New York social services agencies.

 

            Petitioner father, a North Carolina resident, and respondent mother, a New York resident, were the parents of the subject child. In 2012, respondent Suffolk County Department of Social Services (DSS) removed the child from the custody of mother, who admitted neglecting the child, and placed the child in foster care. Father exercised his right to appear in the neglect proceeding and, in 2013, an application was made under the ICPC to North Carolina for the approval of father’s home in that state as a suitable placement for the child. The relevant North Carolina authority denied the ICPC request. The child remained in foster care with the goal of reunification with mother and, according to father, he maintained contact with and continued to visit with the child. Thereafter, in 2017, the father commenced these custody proceedings, arguing that it was in the child’s best interests to award him sole custody. DSS argued that the child could not be placed with father in light of the North Carolina authority’s 2013 refusal to consent to the placement. Family Court dismissed father’s petitions without conducting a hearing. It held in pertinent part that the requirements of the ICPC applied to placement of the child with father, even though he was an out-of-state noncustodial parent, because the child was in the custody and care of DSS in New York. The Appellate Division affirmed (183 A.D.3d 565, 121 N.Y.S.3d 644 [2nd Dept. 2020]), holding that Family Court properly determined that the ICPC applied because “the child was in the custody of DSS and ... father resided in North Carolina” The Court concluded that the petitions for custody were correctly dismissed without a hearing inasmuch as the relevant North Carolina authority denied approval of father’s 2013 ICPC request.

 

            The Court of Appeals reversed. It observed that the ICPC is an agreement among the 50 states, the District of Columbia, and the U.S. Virgin Islands. It is a non-federal agreement and is “construed as state law” in each adopting state (McComb v. Wambaugh, 934 F.2d 474, 479 [3d Cir 1991]).The ICPC governs the “interstate placement of children” (Social Services Law § 374–a [1] [art I]). The ICPC provides at the outset that it applies when a state agency seeks to send children to a receiving state to be placed in foster care or for possible adoption. Specifically, article III of the ICPC provides: “(a) No sending agency shall send ... into any other party state any child for placement in foster care or as a preliminary to a possible adoption unless the sending agency shall comply with each and every requirement set forth in this article ...“(b) Prior to sending ... any child ... into a receiving state for placement in foster care or as a preliminary to a possible adoption, the sending agency shall furnish the appropriate public authorities in the receiving state written notice ...” (emphasis added). (Social Services Law § 374–a [art III] [a], [b]). “Placement,” in turn, is defined as “the arrangement for the care of a child in a family free or boarding home or in a child-caring agency or institution” (id. § 374–a [art II] [d]).

 

            The Court of Appeals  observed that by its terms, the ICPC governs the out-of-state “placement” of children “in foster care or as a preliminary to possible adoption” (Social Services Law § 374–a [1] [art III] [a] & [b]). The language of the statute thus unambiguously limits its applicability to cases of placement for foster care or adoption—which are substitutes for parental care that are not implicated when custody of the child is granted to a noncustodial parent. Applying the ICPC to noncustodial parents would be inconsistent with the statutory requirement that, when a child is placed pursuant to the ICPC, “[t]he sending agency shall continue to have financial responsibility for support and maintenance of the child during the period of the placement” (Social Services Law § 374–a [1] [art V] [a]). As the United States Court of Appeals for the Third Circuit observed, “[t]o construe the return of a child to [a] parent as a ‘placement’ within the Compact would result in the anomalous situation of imposing a financial obligation upon a sending state that supersedes parents’ duty to support their children” (McComb, 934 F.2d at 480). There is nothing in the statutory language to indicate that the ICPC was intended to apply to out-of-state parents seeking custody of their children and the statutory text confines application of the ICPC to children placed in foster care or preliminary adoptive homes. It noted that its decision in Matter of Shaida W., 85 N.Y.2d 453, 626 N.Y.S.2d 35, 649 N.E.2d 1179 [1995]) did not compel a contrary conclusion. In that case, the question before the Court was whether the ICPC applied when children, who were in the care and custody of a New York social services agency, were taken to another state by their grandmother after the agency placed the children into temporary foster care with the grandmother. Although article VIII(a) provides that the ICPC does not apply to “[t]he sending or bringing of a child into a receiving state by [a] parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or [a] guardian and leaving the child with any such relative or non-agency guardian in the receiving state” (Social Services Law § 374–a [1] [art VIII] [a]), it explained that “the children were not legally ‘sent’ to California by their grandmother”. Rather, “[t]he official custodian” of the children was the “Department of Social Services of New York City,” and it was the agency that “authorized the children to be ‘sent’ ” to California within the meaning of the statute. That is, the children were sent by a social services agency to a “kinship foster care placement” in another state and, as such, this Court concluded that the ICPC applied. Here, in contrast, placing a child with an out-of-state parent did not involve foster care or adoption and, thus, Shaida W. did  not control. The Court pointed out that its reading of the ICPC as being applicable only to placement of a child for foster care or as a preliminary to adoption, and not to custody of a noncustodial parent, comports with the intent reflected in the Compact’s legislative history and the underlying statutory purpose. Although the ICPC does not apply to placement with a parent, the Family Court Act contains other effective means to ensure the safety of a child before awarding custody to an out-of-state parent. Family Court retains jurisdiction over custody proceedings and has a broad array of powers under the Family Court Act to ensure a child’s safety.

 

 

 

Appellate Division, First Department

 

 

DRL § 237, applies to parties litigating the issue of standing as a “parent” under DRL § 70. Where the award was issued toward the end of litigation and covered almost all of respondent’s claimed counsel fees, it was, in effect, a final order and  Petitioner was entitled to an evidentiary hearing as to the extent and value of respondent’s counsel fees

 

            In Matter of Gunn v Hamilton, --- N.Y.S.3d ----, 2022 WL 10207780, 2022 N.Y. Slip Op. 05790 (1^st Dept.,2022) the Appellate Division pointed out that in Matter of Kelly G. v. Circe H., 178 A.D.3d 533, 117 N.Y.S.3d 171 (1st Dept. 2019) it determined that Domestic Relations Law § 237, in consonance with the Court of Appeals’ decision in Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488 (2016), applies to parties litigating the issue of standing as a “parent” under Domestic Relations Law § 70. It agreed with petitioner that the motion court’s framing of the counsel fee award as an “interim” order was incorrect. Given that the award was issued toward the end of litigation and covered almost all of respondent’s claimed counsel fees, costs, and expenses, approximately $2.7 million, it found that the fee award was, in effect, a final order. Accordingly, petitioner, who vigorously challenged the motion, was entitled to an evidentiary hearing as to the extent and value of respondent’s counsel fees. It vacated the order and remand the matter to the motion court for an evidentiary hearing on reasonable counsel fees.

 

            The Appellate Division also vacated the finding of criminal contempt premised on petitioner’s noncompliance with a June 28, 2021 order. Even if the order were not vacated, the procedural defects apparent in this proceeding warranted reversal. The record made clear that the court held a criminal contempt proceeding. Accordingly, petitioner was entitled to the same rights afforded a criminal defendant, including a right to be heard, to have her guilt proven beyond a reasonable doubt, and to meaningful representation of counsel. Petitioner did not receive the benefit of these procedural safeguards.

 

 

 Respondent was not denied due process when the Family Court sua sponte conformed the petition to the proof adduced during the fact-finding hearing

 

             In Matter of Jose M. R., v. Arian S., --- N.Y.S.3d ----, 2022 WL 10207779, 2022 N.Y. Slip Op. 05816 (1^st Dept.,2022) a family offense proceeding the Appellate Division held that Respondent was not denied due process when the Family Court sua sponte conformed the petition to the proof adduced during the fact-finding hearing, as he could not have been surprised or prejudiced by his own admissions (see Matter of Oksoon K. v. Young K., 115 AD3d 486, 487 [1st Dept 2014], lv denied, 24 NY3d 902 [2014] ).

           

 

 

A parent who has complied with the recommended service plan has failed to plan for the child’s future if she “fails to gain insight into her parenting problems or take responsibility for the issues that prompted foster care placement in the first place.

 

            In  Matter of Patrice H. W., --- N.Y.S.3d ----, 2022 WL 10207773, 2022 N.Y. Slip Op. 05820 (1^st Dept.,2022) the Appellate Division found that the finding of permanent neglect with respect to the child Patrice was supported by clear and convincing evidence. Respondent failed to plan for the child, evidenced by her refusal to acknowledge the problems that led to the foster care placement of the child in the first place, blaming the children, the biological mother, and the agency and denying that the children were subject to sexual abuse. Regardless of whether a parent has complied with the recommended service plan, she has failed to plan for the child’s future if she “fails to gain insight into her parenting problems or take responsibility for the issues that prompted foster care placement in the first place.

 

 

Finding of neglect against the mother was supported by evidence establishing that she refused to enforce a final order of protection issued against her boyfriend and in favor of the child in a prior neglect proceeding

 

In Matter of Taveon J.,--- N.Y.S.3d ----, 2022 WL 4830386, 2022 N.Y. Slip Op. 05512 (1st Dept.,2022) the Appellate Division found that the finding of neglect against the mother was supported by a preponderance of the evidence establishing that she placed the children’s physical and psychological safety in imminent risk of impairment by refusing to enforce a final order of protection issued against her boyfriend and in favor of the child Taveon in a prior neglect proceeding. Taveon, who was then 11 years old, was heard crying on a tape of a 911 call, in which he reported that the mother’s boyfriend allegedly choked her and then threatened to kill Taveon; the caseworker also testified that Taveon was crying at the police station after the incident. This evidence established, among other things, that the mother risked Taveon’s emotional health by failing to enforce the order of protection issued on his behalf.

 

 

Appellate Division, Second Department

 

Where a material term of a stipulation is  left for future negotiations the agreement  constituted “a mere agreement to agree,” is unenforceable

 

            In Pinto v Pinto, --- N.Y.S.3d ----, 2022 WL 6850257, 2022 N.Y. Slip Op. 05728 (2d Dept.,2022) the parties stipulation of settlement   that was incorporated, but not merged, into the judgment of divorce recited that it was the parties’ intention that the children would attend college, and provided that the children, with both parties’ cooperation, would apply for “merit and need based financial aid” to cover the cost of attending college. The stipulation further provided that, “should there be necessary costs and expenses once financial aid, merit aid and scholarships are exhausted[,] the parties shall consult and try to reach an agreement on payment of these cost[s] and expenses at the time those cost[s] and expenses arise. If the parties cannot agree they can address the issue in a Court of competent jurisdiction.”

 

            In 2019, the plaintiff moved, inter alia, in effect, to direct the defendant to reimburse the plaintiff for the repayment of one-half of the total amount of the student loans incurred for the payment of the college costs and expenses for the parties’ children, based on the above-quoted provision of the stipulation. The plaintiff   averred, inter alia,  with the defendant about her contributing to the cost of the children’s education on at least two occasions while the children were attending college, and the defendant deferred discussion of the matter to a later time.  The defendant averred that the parties consulted with each other on the issue of the children’s college expenses, that they agreed that the plaintiff would pay those expenses, and that the plaintiff did so. Supreme Court, denied plaintiff’s motion. The Appellate Division affirmed.

 

            The Appellate Division held that the provision of the stipulation upon which the plaintiff relied in seeking reimbursement from the defendant required only that “the parties shall consult and try to reach an agreement on payment of [the children’s college-related] cost[s] and expenses.” This provision did not identify an amount or percentage of such costs or expenses to be paid by either party, and did not impose an obligation upon either party to make any such payment. Rather, “a material term [was] left for future negotiations” (Joseph Martin, Jr., Delicatessen, Inc. v. Schumacher, 52 N.Y.2d 105, 109, 436 N.Y.S.2d 247, 417 N.E.2d 541). Thus, the subject provision constituted “a mere agreement to agree,” and, as such, was unenforceable (id. at 109, 436 N.Y.S.2d 247, 417 N.E.2d 541; see Silverman v. Silverman, 249 A.D.2d 378, 379, 671 N.Y.S.2d 145; Flanel v. Flanel, 152 A.D.2d 536, 543 N.Y.S.2d 501).

 

 

Where there is no right to counsel pursuant to FCA § 262, claims of ineffective assistance of counsel in civil litigation will not be entertained absent extraordinary circumstances

 

            In Matter of Buljeta v Fuchs, --- N.Y.S.3d ----, 2022 WL 6849583, 2022 N.Y. Slip Op. 05687 (2d Dept.,2022) the Appellate Division held that situations where there is no statutory right to counsel pursuant to Family Court Act § 262, claims of ineffective assistance of counsel in the context of civil litigation will not be entertained where extraordinary circumstances are absent (see Matter of Nassau County Dept. of Social Servs. v. King, 149 A.D.3d 942, 943, 53 N.Y.S.3d 130; Matter of Lorys v. Powell, 116 A.D.3d 1047, 1048, 983 N.Y.S.2d 892).

 

 

Where the father’s  failure to pay child support is not willful a money judgment should be entered in favor of the mother for the amount of child support arrears

 

            In Matter of Santman v Schonfeldt, --- N.Y.S.3d ----, 2022 WL 6846934 (Mem), 2022 N.Y. Slip Op. 05693 (2 Dept.,2022) a child support enforcement proceeding,  the Family Court denied the petition and dismissed the proceeding. The Appellate Division found that the mother presented evidence that the father had made only one child support payment during the relevant period, and that he owed basic child support of $19,591.43. Therefore, the mother met her prima facie burden. The father testified, and presented proof, that he intended to pay, but his employer and/or the Support Collection Unit had not properly followed through with the wage garnishment procedure. The Support Magistrate found the father’s testimony credible. The Appellate Division held that under the circumstances of this case, the father’s showing was sufficient to establish that his failure to pay was not willful. Nevertheless, as there was competent proof at the hearing that the father failed to obey a lawful order of child support (see Family Ct Act § 454[1]), a money judgment should have been entered in favor of the mother for the amount of child support arrears that accrued during the relevant period (see Family Ct Act  §§ 454[2][a]; 460[1]). It remitted the matter to the Family Court, for the entry of an appropriate money judgment.

 

 

Denial of husbands pendente lite motion to sell portion of wine collection to pay marital debt  was in keeping with purposes of DRL § 236(B)(2)(b)(1), to preserve the status quo and to ensure that neither party would be prejudiced

 

            In Davidoff v Davidoff, --- N.Y.S.3d ----, 2022 WL 10781782 (Mem), 2022 N.Y. Slip Op. 05835 (2d Dept.,2022) in July 2018, the plaintiff commenced this action for a divorce. In October 2018, the Supreme Court denied the defendants motion inter alia, for permission to sell a portion of the parties’ wine collection pendente lite in order to pay marital debt and expenses. The Appellate Division affirmed. It observed that Domestic Relations Law § 236(B)(2)(b)(1) provides, in pertinent part, that during the pendency of a matrimonial action, “neither party shall sell ... or in any way dispose of, without ... consent of the other party in writing, or by order of the court, any property (including ... personal property ...) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with this action.” The record supported the Supreme Court’s determination The parties’ affidavits submitted in connection with the motion reflected factual disputes regarding, inter alia, the size and estimated value of the wine collection, the parties’ past course of conduct during the marriage with respect to sales from the wine collection, and the parties’ respective alleged irresponsibility or responsibility with regard to household finances. In light of these factual disputes, denial of the subject branch of the motion was appropriate and in keeping with the statutory purposes of Domestic Relations Law § 236(B)(2)(b)(1), to preserve the status quo and to ensure that neither party would be prejudiced by the potential “unilateral dissipation of marital assets”.

 

           

Second Department reiterates rule that modifications of pendente lite awards should rarely be made by an appellate court and then only under exigent circumstances

 

            In Davidoff v Davidoff, --- N.Y.S.3d ----, 2022 WL 10778464 (Mem), 2022 N.Y. Slip Op.  (2d Dept.,2022) the parties were married in 2008 and had two children. In July 2018, the plaintiff commenced the action for a divorce. In an order dated January 4, 2021, the Supreme Court, inter alia, granted the plaintiff’s motion for an award of pendente lite child support to the extent of directing the defendant to pay pendente lite child support in the sum of $5,059 per month, retroactive pendente lite child support in the sum of $40,472 at a rate of $1,700 per month, and 100% of the children’s add-on expenses. The Appellate Division affirmed. It held that  modification of the pendente lite child support award was not warranted. Modifications of pendente lite awards should rarely be made by an appellate court and then only under exigent circumstances, such as where a party is unable to meet his or her financial obligations or justice otherwise requires. Any perceived inequity in the award of pendente lite child support can best be remedied by a speedy trial, at which the parties’ financial circumstances can be fully explored. The defendant failed to demonstrate the existence of any exigent circumstances warranting a modification of the pendente lite child support award made by the Supreme Court.

 

 

Appellate Division, Third Department

 

 

Presumption that visitation with a noncustodial parent is in the best interests of the child, may be overcome where the party opposing visitation sets forth compelling reasons and substantial evidence that such visitation would be detrimental or harmful to the child’s welfare

 

        In Matter of Ajmal I v Latoya J, --- N.Y.S.3d ----, 2022 WL 11379771, 2022 N.Y. Slip Op. 05912 (3d Dept.,2022) pursuant to a February 2012 order, the mother was awarded sole legal and physical custody of the child, while the father, who had failed to appear was granted the right to petition for custody and/or visitation in the future. The father left New York in 2009 and had not resided in the state since. The parties’ relationship had generally been tense. Given the father’s prior menacing and assaultive behavior toward the mother, she remained afraid of him and refused to give him her address. In November 2019, the mother learned that the father had offered money on social media to anyone who gave him the mother’s address, then posted that he had obtained the address and would “[s]ee [her] soon.” The mother filed a family offense petition seeking an order of protection against the father. The father responded by filing a custody modification petition and seeking, for the first time since the issuance of the 2012 custody order, visitation with the child. Family Court issued an order of protection in favor of the mother. Family Court then conducted a fact-finding hearing on the father’s modification petition, and granted the  father two hours of supervised visitation.

 

            The Appellate Division agreed with the mother and the attorney for the child that there was no basis for the award of visitation here. It reversed and dismissed the father’s petition in its entirety.  It held that while visitation with a noncustodial parent is presumed to be in the best interests of the child, that “presumption may be overcome where the party opposing visitation sets forth compelling reasons and substantial evidence that such visitation would be detrimental or harmful to the child’s welfare. This standard of substantial proof should not be interpreted in such a way as to heighten the burden, of the party who opposes visitation, to rebut the presumption by a preponderance of the evidence. ( Matter of Granger v. Misercola, 21 N.Y.3d 86, 92, 967 N.Y.S.2d 872 [2013]). As such, the party opposing visitation will meet his or her burden with sworn testimony or documentary evidence that visitation would be harmful to the child or that the noncustodial parent has forfeited the right of access. It was undisputed that the father had not lived with the child in over a decade and had only infrequently visited the child due to, among other things, his moving out of the area and frequently relocating around the United States. The father made no effort to seek a formal award of visitation until 2019, more than seven years after the issuance of the 2012 custody order and over two years after he had last seen the child. This failure by the father to seek a visitation order or otherwise “avail himself of opportunities for visitation over a lengthy period of time  is appropriately taken into account in considering whether visitation is appropriate. Moreover, the mother testified as to how the father behaved in an irresponsible and harmful manner on the occasions when he did interact with the child. The mother described how, during a 2014 visit with the child during his winter break from school, the father cut off contact with her and left the child with relatives so that he could attend a party and travel to New York City, leaving the mother unaware of the child’s whereabouts until the child called her several days later. The father did not see the child again until a 2017 family trip to an amusement park, and the mother testified that he upset the child then by, among other things, live streaming the visit, including the child’s personal conversations, over social media. The mother further set forth how the father did not have frequent electronic contact with the child after that visit and, when that contact did occur, the child was upset by it. The attorney for the child confirmed that the teenage child was upset by interactions with the father for a variety of reasons and did not wish to see him. The child’s preference to have no in-person contact with the father was not dispositive, but is entitled to “considerable weight” given the child’s age . The foregoing satisfied the mother’s burden of establishing that any visitation with the father would be harmful to the child.

 

 

Change in circumstances standard does not apply where the parties’ separation agreement was never memorialized in a court order or otherwise judicially sanctioned. Fundamental purpose” of Lincoln hearing is to ascertain a child’s preferences and concerns.   

 

            In Theodore P v Debra P, 2022 WL 11378159 (3d Dept.,2022) pursuant to a March 2018 separation agreement, which was to be incorporated but not merged into a subsequent judgment of divorce, the parties agreed to joint legal custody of the child and to share physical custody on a “substantially equal basis in a mutually acceptable manner.” The father commenced a divorce action in November 2019 requesting that relief, while the mother sought sole legal and physical custody. The Appellate Division rejected the father’s argument that the Supreme Court erred in proceeding directly to a best interests analysis without first considering whether a change in circumstances occurred since execution of the separation agreement. A party seeking to modify a judicially sanctioned custody arrangement must make a threshold showing of a change in circumstances that warrants an inquiry into whether modification of the arrangement is in the child’s best interests. However, that standard does not apply where the parties’ separation agreement was never memorialized in a court order or otherwise judicially sanctioned. As such, the separation agreement was but a factor to consider in resolving the custody dispute. It followed that the court did not err in denying the father’s motion for a directed verdict based upon the mother’s alleged failure to demonstrate changed circumstances.

 

            The Appellate Division rejected the fathers argument that Supreme Court abused its discretion in holding a Lincoln hearing because there was no trial testimony requiring corroboration by the child. Corroboration of trial testimony and documentary evidence may be “a recognized purpose of a Lincoln hearing,” but the “fundamental purpose” of such a hearing “is to ascertain a child’s preferences and concerns.” It concluded that the Lincoln hearing was a provident exercise of the court’s discretion.

 

 

Supreme Court

 

           

Supreme Court holds that in determining the best interests of a companion animal under DRL § 236 [B] [5] [d] [15], the reviewing court should consider the totality of circumstances by weighing relevant factors applicable to the care of a companion animal

 

            In L.B., v. C.C.B., --- N.Y.S.3d ----, 2022 WL 7855133, 2022 N.Y. Slip Op. 22320 (Sup Ct, 2022) an action for a divorce the parties were married for ten years. The Supreme Court pointed out that the sole significant asset contested by the parties was  custody and possession of their two dogs. It observed that effective October 25, 2021, DRL § 236 [B] [5] [d] [15] provides the  standard to apply in pet custody cases. It  requires courts to consider “the best interest” of a companion animal when awarding possession in a divorce or separation proceeding. It held that in determining the best interests of a companion animal under DRL section 236 [B] [5] [d] [15], the reviewing court should consider the totality of circumstances by weighing relevant factors applicable to the care of a companion animal. Salient factors for a court to consider include: the involvement, or absence, of each party in the companion animal’s day-to-day life; the availability and willingness of each party to care for the companion animal; each party’s involvement in health and veterinary care decisions; the quality of each party’s respective home environment; the care and affection shown towards the companion animal; and each party’s fitness and caretaking abilities. No single factor is dispositive. It held that in determining equitable distribution of the parties’ companion animals, the court was guided by what is in the doges best interest. In weighing the factors relevant to the dogs best interest, the court must also evaluate the testimony, character, and sincerity of all the parties involved (citing “see generally” Eschbach, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260). After weighing the factors that would further the dogs best interest, including factors such as which party was primarily responsible for their day-to-day needs and for maintaining their health and veterinary care; which party, if any, spends more time with the dogs on a regular basis; and the quality of the home environment as one in which the dogs would “live, prosper, love and be loved,” as well as evaluating the testimony, character and sincerity of the parties, the court found that it was in the dogs best interest to remain together in Defendant’s sole care. The care and custody of the parties’ Rottweilers was awarded to Defendant.

 

 

October 12, 2022

 

Appellate Division, First Department

 

Law of the case doctrine did not bar defendant’s second attorney’s fees application, which is expressly permitted by DRL § 237(a) and was based on new evidence and circumstances

            In Cohen v Cohen, --- N.Y.S.3d ----, 2022 WL 4830598 (Mem), 2022 N.Y. Slip Op. 05498 (1^st Dept.,2022) the Appellate Division affirmed an order which, inter alia, granted defendant wife’s motion for a second interim award of counsel fees in the amount of $600,000. It found that under the facts and circumstances presented here, the court providently exercised its discretion. The factors considered include the scope and complexity of the financial issues presented, the parties’ assets and liabilities, as sworn to in their respective statements of net worth, and the prior determination that plaintiff husband, who controlled much of the parties’ real estate holdings and interest in a cosmetics business, was the monied spouse. The discretionary law of the case doctrine did not bar defendant’s second attorney’s fees application, which is expressly permitted by section 237(a) of the Domestic Relations Law and was based on new evidence and circumstances.

The phrase “consummation of the anticipated marriage of [the parties] is a condition precedent to the enforceability of this Agreement”  referred to the marriage ceremony anticipated by the parties when they entered into the agreement

 

          In Fort v Haar, --- N.Y.S.3d ----, 2022 WL 6577794, 2022 N.Y. Slip Op. 05660(1^st Dept.,2022)  In August 2014, the parties entered into a prenuptial agreement, and on February 14, 2015, they were married before a rabbi. The prenuptial agreement contained a section entitled “MARRIAGE -A CONDITION PRECEDENT AND EFFECTIVE DATE,” which provided, “consummation of the anticipated marriage of [the parties] is a condition precedent to the enforceability of this Agreement. If [the parties] do not marry, this Agreement shall have no effect.... This Agreement is made in consideration of, and is conditioned upon, [the parties] entering into a valid ceremonial marriage with each other, and it shall become effective as of the date of that marriage.” After the wife commenced this divorce action, she sought a declaration that the agreement was not enforceable, arguing that a condition precedent was the parties’ “consummating the anticipated marriage,” which she asserted was understood to mean having engaged in marital sexual relations. The husband opposed and sought a declaration that the agreement was enforceable as of the date of the marriage. He also disputed the wife’s factual assertions that the parties had not had sexual relations since the date of the marriage. The Appellate Division concluded that  as used in this prenuptial agreement, the phrase clearly and unambiguously referred to the marriage ceremony anticipated by the parties when they entered into the agreement. While the word “consummation” connotes sexual relations in certain contexts, such as annulment proceedings, that is not the only meaning of the word, which may simply mean achieve or fulfill (see Black’s Law Dictionary [11th ed 2019]). The plain meaning of “consummation,” in the context of the section titled “Marriage – a Condition Precedent and Effective Date” and defining the effective date of agreement as the date of the parties’ marriage, is consummation or fulfillment of the parties’ intention to enter into a valid “marriage.” Reading the contract as a whole, this interpretation of the section effectuates the parties’ expressed intention to fix their respective rights accruing upon marriage and to avoid unnecessary and intrusive litigation in the event of divorce, and sets an ascertainable date for determining the effectiveness and enforceability of the prenuptial agreement. Furthermore, the wife’s acceptance of benefits under the terms of the prenuptial agreement foreclosed her from questioning its enforceability (see Markovitz v. Markovitz, 29 AD3d 460, 461 [1st Dept 2006]). The parties’ conduct in executing a modification agreement further underscored that they believed it was in force and effect (Federal Ins. Co. v. Americas Ins. Co., 258 A.D.2d 39, 44 [1st Dept 1999]).

 

 

 

Law Firm  was not entitled to recover the counsel fees it incurred in litigating its fee claim against former client in absence of any agreement, statute, or court rule that would authorize such a recovery           

           

            In Lorne v Lorne, --- N.Y.S.3d ----, 2022 WL 5234633, 2022 N.Y. Slip Op. 05593 (1^st Dept.,2022) the Appellate Division held that Fox Rothschild was entitled to recover its unpaid fees because it substantially complied with applicable court rules regarding attorneys representing clients in domestic relations matters (Uniform Rules for Trial Cts [22 NYCRR] §§ 1400.2, 1400.3; see Edelman v. Poster, 72 A.D.3d 182, 184, 894 N.Y.S.2d 398 [1st Dept. 2010]). Although the wife claimed that the retainer letter did not include 8 of 13 provisions that are mandated to appear in a retainer letter (see 22 NYCRR 1400.3), either the omitted provisions addressed matters that were not relevant to the wife in any event, or the wife was made aware of those provisions through the statement of client’s rights and through her own experiences in this proceeding. However, the wife’s position that Fox Rothschild was not entitled to recover the counsel fees it incurred in litigating its fee claim against her was  persuasive in light of the firm’s failure to cite any agreement, statute, or court rule that would authorize such a recovery (see Hooper Assoc. v. AGS Computers, Inc., 74 N.Y.2d 487, 491, 549 N.Y.S.2d 365, 548 N.E.2d 903 [1989]).

 

 

Appellate Division, Second Department

 

 

A court opting to forgo a plenary custody modification hearing must take care to clearly articulate which factors were, or were not, material to its determination, and the evidence supporting its decision.

 

            In Matter Randall v. Diaz,, --- N.Y.S.3d ----, 2022 WL 4490760 (Mem), 2022 N.Y. Slip Op. 05322 (2d Dept.,2022) the Family Court, without holding a plenary hearing, granted the father’s petition, modified the existing custody order and awarded the father sole physical custody of the children. The Appellate Division held that custody determinations should generally be made only after a full and plenary hearing and inquiry’. Where facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required. While a hearing is not necessary where the undisputed facts before the court are sufficient, in and of themselves, to support a modification of custody a court opting to forgo a plenary hearing must take care to clearly articulate which factors were, or were not, material to its determination, and the evidence supporting its decision. The record demonstrated disputed factual issues so as to require a hearing on the issue of physical custody. Moreover, the Family Court failed to articulate the factors and evidence material to its determination. It remitted for a new hearing and determination.

 

 

Under Family Court Act § 846–a, the court may order the respondent to pay the petitioner’s reasonable and necessary counsel fees in connection with the violation petition where the court finds that the violation of its order was willful. The reasonable amount and nature of the claimed services must be established at an adversarial hearing

 

         In Matter of Sicina v.  --- N.Y.S.3d ----, 2022 WL 5064723, 2022 N.Y. Slip Op. 05535 (2d Dept.,2022, the Family Court, inter alia, found that Gorish had willfully violated an order of protection and granted the violation petition. The court also extended the order of protection and directed Gorish to pay counsel fees to the petitioner of $1,000. The Appellate Division affirmed. Family Court’s determination that Gorish willfully violated the order of protection was supported by clear and convincing evidence in the record. Family Court Act § 846–a authorizes the court to enter a new order of protection if, after hearing, the court is satisfied by competent proof that the respondent has willfully failed to obey any such order. Contrary to Gorish’s contention, conduct constituting a violation of the order of protection need not necessarily constitute a separate family offense in order for the court to have jurisdiction over the violation. Under Family Court Act § 846–a, the court may order the respondent to pay the petitioner’s reasonable and necessary counsel fees in connection with the violation petition where the court finds that the violation of its order was willful. The award of counsel fees is committed to the discretion of the Family Court. The reasonable amount and nature of the claimed services must be established at an adversarial hearing. Here, while the Family Court providently exercised its discretion in awarding counsel fees to the petitioner, the court erred in determining the amount of the counsel fees without a hearing. It remitted the matter to the Family Court, for a hearing to determine the amount of reasonable and necessary counsel fees the petitioner incurred in connection with her violation petition and the entry of an appropriate order thereafter.

 

 

Appellate Division, Fourth Department

 

 

A movant contending that a pleading fails to state a cause of action pursuant to CPLR 3211 (a) (7) may submit affidavits and evidence to demonstrate conclusively that the plaintiff does not have a cause of action

 

In Stuber v Stuber --- N.Y.S.3d ----, 2022 WL 5406402, 2022 N.Y. Slip Op. 05641 (4^th Dept., 2022) Plaintiff commenced an action seeking to set aside a property settlement agreement (agreement), which was incorporated but not merged into the parties’ judgment of divorce, on grounds of fraud, undue influence, unconscionability, and duress. The Appellate Division reversed an order that, inter alia, denied defendants motion to dismiss the complaint pursuant to CPLR 3211 (a) (1), (5), and (7). It held that a movant contending that a pleading fails to state a cause of action pursuant to CPLR 3211 (a) (7) may submit affidavits and evidence to demonstrate conclusively that the plaintiff does not have a cause of action. Here, plaintiff’s vague allegations that defendant failed to make full financial disclosure when the agreement was entered into were belied by the evidence produced in defendant’s motion papers. Thus, it concluded that the agreement, together with the evidence submitted by defendant, flatly contradicted plaintiff’s allegations that she was not provided with complete disclosure regarding the subject assets at the time she executed the agreement. Further, when confronted with defendant’s motion to dismiss, plaintiff failed to come forth with any facts or circumstances” supporting her allegations. Inasmuch as plaintiff only vaguely contended, in response to the motion, that she learned after the agreement was executed that defendant failed to make disclosure of marital financial information and inasmuch as her complaint contains no facts to support those allegations, the complaint also failed to state a cause of action to rescind the agreement based on unconscionability, fraud, or duress and undue influence.

 

 

 

 

 

 

 

September 28, 2022

 

Where an account has been stated by a law firm, the firm is not required to establish the reasonableness of its fees

            In Garr Silpe, P.C. v Pam Thur Weir, --- N.Y.S.3d ----, 2022 WL 4474597, 2022 N.Y. Slip Op. 05271 (1^st Dept.,2022) the Appellate Division affirmed a judgment which awarded the plaintiff $87,993.92, counsel fees as there had been substantial compliance with the rules (see Edelman v Poster, 72 AD3d 182,184 [1st Dept 2010]; 22 NYCRR part 1400). The court properly granted plaintiff summary judgment on its claim for account stated. Plaintiff submitted evidence establishing that defendant did not object to the bills and invoices within a reasonable time, and had in fact made partial payments. Defendant failed to proffer any proof raising a triable issue of fact. Defendant’s challenge to the reasonableness of the fees was unavailing. Where an account has been stated by a law firm, the firm is not required to establish the reasonableness of its fees since the client’s act of holding the invoices without objection constitutes an acquiescence to the correctness of the invoices (see Shaw v Silver, 95 AD3d 416, 416-417 [1st Dept 2012]).

 

 

Appellate Division, Second Department

 

 

Second Department holds that where the custodial arrangement splits the children’s physical custody so that neither can be said to have physical custody of the children for a majority of the time the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the ‘noncustodial’ parent

 

 

       In Matter of Smisek v DeSantis, 2022 WL 4361153 (2d Dept.,2022) in adjudicating a child support petition filed by the mother of the children, the Support Magistrate and the Family Court agreed with the father’s contention that the mother could not be awarded child support because a strict counting of the parties’ custodial overnights with the children rendered him the custodial parent. After a trial, the Family Court issued a final order of custody awarding the parties joint legal custody and shared parenting time. The parenting time schedule in the final order of custody was as follows: during the months of September through June, the father had parenting time with the children from Sunday at 8:00 p.m. through Wednesday at 9:00 a.m., as well as on alternating weekends from Friday at 9:00 a.m. through Sunday at 8:00 p.m. The mother had parenting time during those months from Wednesday at 9:00 a.m. through Friday at 9:00 a.m., and alternating weekends from Friday at 9:00 a.m. through Sunday at 8:00 p.m. During the months of July and August, the mother had parenting time from Monday at 9:00 a.m. through Thursday at 9:00 a.m., as well as alternating weekends from Thursday at 9:00 a.m. through Monday at 9:00 a.m. The father had parenting time during those months on alternating weekends from Thursday at 9:00 a.m. through Monday at 9:00 a.m., as well as one period of seven consecutive days. The parties alternated custody on all other school breaks and holidays. In its decision after trial, which set forth the same parenting time schedule, the Family Court stated that it was giving “residential custody” to the father “solely for the purpose of determining the children’s school district.”

 

            The Support Magistrate, examining the relevant law, perceived a split of authority between the Appellate Division, First and Third Judicial Departments, on the one hand, and the Appellate Division, Fourth Judicial Department, on the other, with no precedent from the Second Department, as to the method of determining which parent was the custodial parent for purposes of child support in a shared custody arrangement. Following the First Department’s decision in Rubin v. Della Salla, 107 A.D.3d 60, 964 N.Y.S.2d 41, the Support Magistrate concluded that the parent who has the greatest number of custodial overnights is the parent considered to have custody of the child the majority of the time and, therefore, is the custodial parent for child support purposes. Since the father had more custodial overnights, the Support Magistrate granted the father’s motion pursuant to CPLR 3211(a) to dismiss the mother’s petition for child support and dismissed the proceeding. The mother filed objections to the Support Magistrate’s order, arguing for a more flexible approach that would award child support to the spouse with the lower income where the parties enjoyed approximately equal parenting time. The Family Court, however, agreed with the Support Magistrate, and denied the mother’s objections. The mother appealed.

 

            The Second Department surveyed the relevant case law in all of the Departments. It rejected that the father’s contention that status as the custodial parent must be determined based upon a strict counting of custodial overnights and that the Baraby rule only applies to a true 50/50 split of custodial overnights. While a strict counting of overnights might have the advantage of ease of application, it also has disadvantages. Most significantly, such a method does not always reflect the reality of the situation. It concluded that while counting custodial overnights may suffice in most shared custody cases, that approach should not be applied where it does not reflect the reality of the situation. Similarly, while it may be clear in most cases which parent’s share of the parenting time constitutes the majority of custodial time (citing Bast v. Rossoff, 91 N.Y.2d at 729 n. 3, 675 N.Y.S.2d 19, 697 N.E.2d 1009), the reality of the situation must also be considered where there is a closer division of parenting time.

 

            The Appellate Division found that under all of these circumstances, and considering the reality of the situation, including the overall amount of time each parent spends with the children, this was a case in which the “custodial arrangement splits the children’s physical custody so that neither can be said to have physical custody of the children for a majority of the time” (Baraby v. Baraby, 250 A.D.2d at 204, 681 N.Y.S.2d 826). Thus, “the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the ‘noncustodial’ parent” . Since it had not been determined in this case which parent had the greater pro rata share of the child support obligation, it remitted the matter to the Family Court for further proceedings on the mother’s petition for child support, including calculation of an appropriate award of support to her in the event that she is determined to have the lesser pro rata share of the child support obligation.

 

 

 

 

September 21,2022

 

Where a parent makes a voluntary custodial arrangement for his or her child, the courts may not permit a nonparent to interfere with that arrangement in the absence of extraordinary circumstances.

 

         In Matter of Leslie LL v Robert NN, --- N.Y.S.3d ----, 2022 WL 4239598, 2022 N.Y. Slip Op. 05189 (3d Dept.,2022) following the mother’s death in 2017, custody petitions for the son and daughter were filed by the mother’s friend, respondent Shaquila PP.and the children’s maternal grandmother, respondent Kathy OO..Family Court granted temporary custody to the grandmother, upon consent of the children’s fathers and the friend. Family Court conducted a hearing and ultimately dismissed the petitions on the basis that petitioners had failed to meet their burden of demonstrating extraordinary circumstances. The Appellate Division affirmed. It pointed out that the boy’s father testified at the hearing that he consistently paid child support to the mother while she was alive and saw the boy frequently during those years, as often as two to three times a week. He also testified that he was unable to assume custody because he ha physical disabilities and lived in public housing that did  not allow children. Therefore, following the mother’s death, the boy’s father formulated a plan for the boy to live with the grandmother along with his sister, with whom he has a close bond. He said he currently visited with the boy every weekend and attended all of his athletic events. Family Court noted that the children have been the only constant in each other’s lives and are very close. The court further observed that the children are being raised together by the grandmother in a loving home. The Appellate Division held that where, as here, a parent makes a voluntary custodial arrangement for his or her child, the courts may not permit a nonparent to interfere with that arrangement in the absence of extraordinary circumstances. An extraordinary circumstances inquiry involves “consideration of the cumulative effect of all issues present in a given case” and requires the nonparent to establish “that there has been surrender, abandonment, persistent neglect, unfitness, an extended disruption of custody” or other like circumstances. If , and only if, the nonparent establishes extraordinary circumstances may a court then consider what custodial arrangement serves the best interests of the child”. It held that  extraordinary circumstances may not be established merely by showing that the child has bonded psychologically with the nonparent”.

 

 

September 16, 2022

 

Appellate Division, First Department

 

 

Since there is no reason an equitable distribution award cannot be made to the plaintiff on a contingent basis, the court should have awarded the plaintiff 50% of so much of the security deposit as is returned by the landlord upon the termination of the lease on the marital residence.

 

            In Malkani v Malkani, --- N.Y.S.3d ----, 2022 WL 3904656, 2022 N.Y. Slip Op. 05082 (2d Dept.,2022) the parties were married on December 31, 2007, and had three minor children. The action for a divorce was commenced on August 8, 2017. After a nonjury trial, the Supreme Court awarded the plaintiff maintenance and child support, commencing on the first day of the month following the entry of the judgment of divorce, rather than being retroactive to the date of the commencement of the action, when the plaintiff first sought maintenance and child support. In computing maintenance and child support, the court noted that the defendant was employed at an annual salary of $235,000 and, based upon the potential of a bonus, imputed to him a total annual income of $270,000. The court noted that the plaintiff had been offered full-time employment with an annual salary of $85,000 by her current employer, and imputed that income to her. The court imputed additional annual income of $84,000 to the plaintiff, on the ground that her father was paying the rent for her current residence. Maintenance and child support were based upon imputed income of $270,000 for the defendant and $169,000 for the plaintiff.  Based upon those figures, the computation of maintenance pursuant to Domestic Relations Law § 236(B)(6) resulted in a negative number. The Supreme Court nevertheless awarded the plaintiff maintenance of $1,000 per month for a period of 12 months. Child support was awarded to the plaintiff based upon the defendant’s imputed income of $270,000 and the plaintiff’s imputed income of $169,000, utilizing the statutory cap of $148,000 for combined parental income. Based on the income imputed to each party, the court determined that the defendant would be responsible for 61% of all statutory add-on expenses and the plaintiff would be responsible for 39% of such expenses.

 

            The Appellate Division held that a party’s maintenance and child support obligations commence, and are retroactive to, the date the applications for maintenance and child support were first made,” which, in this case, was the date of the commencement of this action and that the award of spousal maintenance and child support to the plaintiff should have been retroactive to August 8, 2017.

 

            The Appellate Division held that imputing an additional $84,000 in annual income to the plaintiff, based upon the fact that her father paid her rent so she could live apart from the defendant during the pendency of this action, was an improvident exercise of discretion. This gift was made by the plaintiff’s father after the action was commenced, and was at least in part a response to the fact that the defendant was not making any pendente lite support payments Moreover, the term of the lease for the plaintiff’s residence was only 19 months, commencing on December 1, 2017. The plaintiff’s father had no legal obligation to provide his daughter with housing, and there was no indication in the record that his payment of rent would continue once the 19–month lease period ended.. Under these circumstances, it was not appropriate to impute the rental payments made by the plaintiff’s father as income to the plaintiff.

 

            The Supreme Court declined to award the plaintiff an equitable share of the security deposit of $12,000 given to the landlord of the marital residence, reasoning that the plaintiff did not prove that the deposit was paid with marital funds and that, since the lease of the marital residence had not ended, it was not known whether the security deposit would be returned. However, there was no indication in the record that the security deposit, which was given after the parties had been married for approximately seven years, somehow derived from separate property, and thus, the presumption that the security deposit was paid with marital property, and therefore was subject to equitable distribution, was not overcome. Since there was no reason an equitable distribution award cannot be made to the plaintiff on a contingent basis, the court should have awarded the plaintiff 50% of so much of the security deposit as is returned by the landlord upon the termination of the lease on the marital residence.

 

           

 Appellate Division, Third Department

 

Judiciary Law § 14 provides that  A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding . . . in which he [or she] has been attorney or counsel. This prohibition is absolute and establishes a bright -line disqualification rule.

 

            In Matter of John II, v Kristen JJ., --- N.Y.S.3d ----, 2022 WL 4098523, 2022 N.Y. Slip Op. 05132) (3d Dept.,2022) pursuant to a November 2012 order issued upon the father's default, the mother was granted sole legal and physical custody of the children. Subsequently, in June 2017, the parties entered into an agreement through which the mother retained sole legal and physical custody of the children, and the father was "entitled to weekly supervised visitation. The  father filed a petition for modification of June 2017 order. He also sought Family Court's disqualification, noting that the November 2012 order listed "Keith M. Bruno" as the mother's counsel in those proceedings. Family Court denied the father's disqualification  motion. Following a fact-finding hearing where the mother was the only witness, Family Court dismissed the father's petition for failure to establish a prima facie case. The Appellate Division agreed with the father that  Family Court erred in denying his motion to have the court be disqualified from the matter. It observed that  "A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding . . . in which he [or she] has been attorney or counsel" (Judiciary Law § 14; see Rules Governing Judicial Conduct [22 NYCRR] § 100.3 [E] [1] [b] [i]). "This prohibition is absolute and establishes a bright -line disqualification rule". Although neither the Judiciary Law nor the Rules Governing Judicial Conduct define "an action, claim, matter, motion or proceeding" (Judiciary Law § 14), Black's Law Dictionary defines a "claim" as "[t]he assertion of an existing right . . . to an equitable remedy, even if contingent or provisional" (Black's Law Dictionary [11th ed 2019] , claim). When the father moved for Family Court's recusal and/or disqualification, the judge explained that he did not recall such representation from eight to nine years prior. The November 2012 default order and the order on appeal both dealt with the custodial arrangement between the same two parents regarding the same three children. Under these circumstances, where the two proceedings involved the same claim of custody, guardianship, or visitation for the same children, Family Court was statutorily disqualified from the proceedings. The order was reversed and the matter remitted before a different judge for a new fact-finding hearing.

 

Appellate Division, Fourth Department

 

The fact that testing has already been conducted when a court holds a hearing on equitable estoppel does not mandate reversal of a subsequent order determining paternity. A Support Magistrate cannot lawfully order a party to submit to genetic testing before the party is represented by counsel.

 

            In  Matter of Danielle E.P., v. Christopher N., 172 N.Y.S.3d 782, 2022 N.Y. Slip Op. 04841(4^th Dept.,2022)  Respondent and petitioner-respondent (petitioner) had sexual relations in September 2015 and January 2016. At the time that petitioner gave birth to the child, she was in a relationship with another man who was identified as the child’s father on the birth certificate and who signed an acknowledgment of paternity. Shortly after the child was born, petitioner’s relationship with that man ended. Petitioner then informed respondent that he might be the child’s father and filed a paternity petition against him. Based on the acknowledgment of paternity, Family Court dismissed the petition. After the acknowledgment of paternity was vacated, petitioner commenced this proceeding. At the outset of the proceeding, the Support Magistrate ordered genetic marker testing, which established that respondent was the child’s biological father. The Support Magistrate thereafter transferred the matter to Family Court for a hearing on respondent’s defense of equitable estoppel. Following the hearing, the court adjudicated respondent to be the child’s father. The Appellate Division affirmed.

 

            The Appellate Division observed that the court should consider paternity by estoppel before it decides whether to test for biological paternity. Nevertheless, the fact that testing has already been conducted when a court holds a hearing on equitable estoppel does not mandate reversal of a subsequent order determining paternity. Respondent had a full and fair opportunity to litigate his equitable defense, which the court rejected following the hearing, and  respondent did  not challenge the court’s determination that he failed to establish that equitable estoppel applied. Moreover, the court made clear that, notwithstanding the results of the genetic marker test, the paternity petition would have been denied had respondent met his burden of proof on equitable estoppel.

 

            The Appellate Division rejected respondent’s contention that the Support Magistrate erred in ordering genetic testing before respondent was represented by counsel. Although a respondent in any proceeding under Family Court Act article 5 in relation to the establishment of paternity has a right to the assistance of  counsel  respondent cited no authority for the proposition that a Support Magistrate cannot lawfully order a party to submit to genetic testing before the party is represented by counsel.

 

            The Appellate Division rejected respondents contention that the court erred in denying his motion to vacate the order that adjudicated him to be the child’s father. Respondent’s claim of estoppel was based on the nature and extent of the relationship between the boyfriend and the child, and there was insufficient evidence that the Petitioners boyfriend ever held himself out as the child’s father.

 

 

 

Supreme Court

 

 

Where father’s adjusted gross income was in excess of $2 million a year it was inappropriate to award to guideline maintenance and child support only up to the cap. Court utilized an adjusted cap of $800,000 for its calculations, or approximately one-third of the parties’ combined income (citing Klauer v Abeliovich, 149 AD3d 617 (1st Dept 2017)

 

            In E.A., v. J.A., Slip Copy, 2022 WL 3905783 (Table), 2022 N.Y. Slip Op. 50833(U) 2022 WL 3905783 (Sup. Ct., 2022) the parties were married on June 11, 2017 in New York. This divorce action was commenced on April 18, 2022. There were  two children of the marriage: one born in October 2018, and the other born in April 2021. The marital residence, where the parties resided with their two children, was a townhouse valued at approximately $8 million located in the Upper East Side of Manhattan. The Husband, who was 31, was the co-vice president of, a telecommunications company co-founded by his father. The Wife, who was 27, did not make an income and has no assets. In the year of 2020, the Husband totaled an adjusted gross income of $2,604,004. In 2021, the year before this action was commenced, the husband earned approximately $2,587,530.62. The parties drive luxury automobiles, had access to numerous perquisites through Defendant’s corporation and spend thousands of dollars per month on clothing and accessories including from retailers such as Bergdorf Goodman, Chanel, and Bottega Venetta. Their children attended a private preschool, the parties traveled by private jet on high end vacations throughout the world, had household staff, regularly ate at luxury restaurants and spent thousands of dollars on Kosher groceries, and summered in Deal, New Jersey at the $7 million mansion owned by Defendant’s family. The Court determines it was inappropriate to award the guideline maintenance and child support only up to the cap. It utilized an adjusted cap of $800,000 for its calculations, or approximately one-third of the parties’ combined income (citing Klauer v Abeliovich, 149 AD3d 617 [1st Dept 2017][upholding use of $800,000 adjusted cap]). Using this cap the sum total Defendant would have to pay to Plaintiff each month would be $28,894.69. However, the Court found that this award was too high relative to the total amount spent in 2021, and in light of the significant expenses and carrying costs already being covered by Defendant, including the parties’ townhouse, as well as paying the childcare staff and add-on expenses. The Court found that an amount of $24,000 in unallocated support adequately reflected a support level that met the needs and continuation of the children’s and Plaintiff’s lifestyle. The award was unallocated because, many of the expenses were intertwined and at this early phase of the action more discovery was needed to fully understand the expenses of the parties and children.

 

            Defendant was ordered to pay the Plaintiff’s interim counsel fees of $250,000 and to pay Plaintiff’s interim expert fees of $75,000 subject to reallocation at trial and without prejudice to further applications.

 

 

 

August 30, 2022

 

 

Appellate Division, Second Department

A petitioner who does not sign an acknowledgment of paternity has standing pursuant to Family Court Act § 522 to seek an adjudication that he was the legal father of the child.

 

            In Matter of Escobar v Pagan, --- N.Y.S.3d ----, 2022 WL 3221775, 2022 N.Y. Slip Op. 04912 (2d Dept.,2022) the subject child was born in September 2013, to Milagros P. ( mother). On September 13, 2013, the mother and Escobar signed an acknowledgment of paternity which stated that Escobar was the child’s father.  The mother also was in an intimate relationship with Michael M.(Michael), and in October 2013 she agreed to a private DNA test. The results of that test indicated that Michael was the child’s biological father. Michael voluntarily paid child support to the mother in the amount of $600 per month. The mother also allowed Michael to have regular visitation with the child. In 2019, Escobar commenced a proceeding for parental access with the child, while Michael commenced a paternity proceeding to have himself declared the child’s father. Family Court directed the mother, Escobar, and Michael to undergo genetic marker testing. Based on the results of that testing, which indicated that Michael was the child’s biological father, the court issued an order adjudicating Michael to be the child’s father, an order vacating the acknowledgment of paternity, and an order dismissing Escobar’s petition for parental access for lack of standing. The Appellate Division affirmed. It held that the best interests of the child were served by adjudicating Michael’s status, since the child already considered Michael to be her father. Further, the evidence adduced at the hearing indicated that Michael provided a stable resource for the child. Therefore, equitable estoppel was not applicable here. Although a petitioner who does not sign an acknowledgment of paternity does not have standing to challenge the acknowledgment of paternity pursuant to Family Court Act § 516–a, Michael nevertheless had standing pursuant to Family Court Act § 522 to seek an adjudication that he was the legal father of the child. Once the Family Court determined that Michael was entitled to such an adjudication pursuant to Family Court Act § 522, it properly exercised its authority to vacate the acknowledgment of paternity executed by Escobar. In view of the order adjudicating Michael to be the child’s father, Escobar’s petition for parental access was properly dismissed for lack of standing.

 

 

A person who is not a party to a judicial surrender and is not authorized by statute to file a petition seeking to vacate a judicial surrender lacks standing to file such a petition.

 

            In Matter of Elizabeth W,--- N.Y.S.3d ----, 2022 WL 3640856, 2022 N.Y. Slip Op. 05039 (2d Dept.,2022) the child Elizabeth W. appealed from an order of the Family Court, which denied her petitions to vacate the judicial surrenders of Gabriella W. and Aleah W., denied those branches of the mother’s petition which sought the same relief, and dismissed the paternal grandfather’s petitions for custody of Gabriella W. and Aleah W., contending that all three children should reside together with the paternal grandfather. The Appellate Division held, inter alia, that appellant, was aggrieved by the portion of the order denying her own petitions to vacate the judicial surrenders of Gabriella W. and Aleah W., since, in those petitions, the appellant “asked] for relief but that relief [was] denied in whole or in part”. Nonetheless, the appellant was not a party to, and was not the subject of, the judicial surrenders of Gabriella W. and Aleah W. The statutes governing the Family Court’s review of a failure of a material condition of a judicial surrender authorize the filing of petitions by the relevant agency, by the parent, and by the “attorney for the child ” (Family Court Act § 1055–a[a]; see Social Services Law § 383–c[6][c] [petition may be filed by agency, parent, or “law guardian for the child”]). The statutory reference to “the child”  means the child who is the subject of the judicial surrender that is under review. Since adoption in this State is solely the creature of ... statute, statutory provisions regarding adoptions must be strictly construed. Thus, a person who is not a party to a judicial surrender and is not authorized by statute to file a petition seeking to vacate a judicial surrender lacks standing to file such a petition. Although the appellant had standing pursuant to Domestic Relations Law § 71 to apply for sibling visitation(and she was, in fact, granted sibling visitation), seeking to become involved in litigating a parent’s judicial surrender of a sibling for the purpose of adoption is an entirely different matter. Since the appellant was not a party to the judicial surrenders of Gabriella W. and Aleah W., and was not a person authorized to file a petition seeking to vacate either of those judicial surrenders, she did not have standing to file such petitions. Therefore, on that basis, her petitions were properly denied.

 

 

Appellate Division, Third Department

 

 

Allegations in the petition were sufficient to warrant a hearing to determine if the Court had emergency jurisdiction to make an initial child custody determination under Domestic Relations Law § 76–c

 

            In Matter of Chester HH., v. Angela GG.,--- N.Y.S.3d ----, 2022 WL 3449008, 2022 N.Y. Slip Op. 05002 (3d Dept.,2022)   the Appellate Division held that the allegations set forth in the petition were sufficient to warrant Family Court to conduct a hearing to determine if the Court had emergency jurisdiction to make an initial child custody determination (see Domestic Relations Law § 76[1][a]-[d])., Domestic Relations Law § 76–c provides that “New York courts have temporary emergency jurisdiction if the child is present in this state and it is necessary in an emergency to protect the child, a sibling or parent of the child. ’The father’s petition included allegations concerning, among other things, that the mother engaged in a pattern of neglect by failing to properly dispose of garbage – causing a rodent infestation in the home; that the home was without electricity and hot water for lengthy periods of time on numerous occasions; that the mother has mental and physical conditions rendering her unable to care for the house or the child; that the mother keeps the child out of school to ensure that the child is available to attend to her needs; that the mother failed to take the child to the doctor for approximately four years; and that she has verbally and mentally abused the child. The petition further contained allegations that the child’s maternal uncle punched holes in the walls of the mother’s residence while the child was present, was verbally abusive toward the child – including regarding the child’s sexual orientation – and that the uncle may have sexually assaulted and/or raped the child on two occasions. Finally, the petition alleged that the child’s maternal grandmother was verbally abusive and unsupportive of the child’s gender identity. Family Court erred in relying on  unsigned and redacted MDHHS report, containing vague and contradictory hearsay statements made by an MDHHS caseworker, as support for its decision not to conduct a hearing. The record confirmed that the MDHHS report was the result of a less-than-thorough investigation that failed to address all of the father’s allegations.

 

 

           

Appellate Division, Fourth Department

Collateral estoppel applies only when  the issues in both proceedings are identical .The doctrine of res judicata requires “a valid final judgment” on a prior action between the parties. A divorce settlement tainted by duress is void ab initio not merely voidable, and is, not subject to ratification by the mere passage of time.

 

            In Nagi v Ahmed, 207 A.D.3d 1149, 172 N.Y.S.3d 286, 2022 N.Y. Slip Op. 04461

(4^th Dept.,2022) Plaintiff commenced an action seeking to vacate in part an amended judgment of divorce entered in 2018 and to set aside the parties’ property settlement agreement, which was incorporated but not merged into the amended judgment of divorce. The complaint alleged, among other things, that plaintiff signed the agreement due to “extraordinary duress and pressure” exerted on her by defendant, among other people, and that the terms of the agreement were so favorable to defendant as to render it unconscionable and thus unenforceable. Defendant cross-moved for summary judgment on his affirmative defenses seeking to dismiss the complaint on the grounds of collateral estoppel and ratification. Supreme Court granted the cross motion, concluding that plaintiff was collaterally estopped from challenging the agreement because she sought similar relief by way of a motion she filed in July 2018 seeking to modify certain provisions of the agreement and to enforce others. The Appellate Division reversed. It held that collateral estoppel applies when (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits. Here, the motion that plaintiff filed in July 2018 did not seek to vacate the amended judgment of divorce or to set aside the agreement. The issues in this action were not identical to those raised by plaintiff in her motion, and defendant thus failed to meet his initial burden on his cross motion of establishing that collateral estoppel precludes plaintiff from challenging the agreement.

 

            The Appellate Division rejected the contention that to the extent that defendant contended, as an alternative ground for affirmance, that this action was barred by res judicata because plaintiff could have pursued her current claims in the 2018 motion, we reject that contention. A party seeking to set aside a settlement agreement must do so in a plenary action; such relief cannot be obtained on motion. Moreover, although plaintiff did commence a plenary action in August 2018 to set aside the agreement on grounds of fraud, duress, and overreaching, she abandoned that action, and a final judgment was never entered on it. The doctrine of res judicata requires, among other things, “a valid final judgment” on a prior action between the parties which was lacking here. There never had been a determination on the merits of plaintiff’s claims that she signed the agreement under duress and that the agreement is unconscionable.

 

            The Appellate Division rejected defendant’s contention, raised as an alternative ground for affirmance, that the court properly granted the cross motion because plaintiff ratified the agreement by acquiescing in it and receiving the benefits under it for a considerable period of time. A divorce settlement tainted by duress is void ab initio not merely voidable, and is, therefore, not subject to ratification by the mere passage of time” (Perl v. Perl, 126 A.D.2d 91, 96, 512 N.Y.S.2d 372 [1st Dept. 1987]).

 

           

Nothing intrinsically dangerous about leaving two children to eat and watch television while the mother was in the bathroom with the door open.

 

            In Matter of Silas W, 171 N.Y.S.3d 290, 2022 N.Y. Slip Op. 04506 (4^th Dept.., 2022) the Appellate Division agreed with the mother that petitioner failed to establish that she neglected the children. Although “[a]n isolated accidental injury may constitute neglect if the parent was aware of the intrinsic danger of  the situation” here, there was nothing intrinsically dangerous about leaving two of the children to eat and watch television while the mother was in the bathroom with the door open. The record established that the mother knew that one of her children was sometimes aggressive towards his younger siblings, but there was no evidence in the record that she was aware that he may open a locked window, remove the screen, and drop his sibling from a height of two stories. In making that determination, it noted that the window involved in the incident was not deemed dangerous by a caseworker during a home visit less than a month before the incident.

 

 

Contentions raised for the first time in a reply brief are not properly before the Appellate Division

 

            In S.P., v. M.P., 207 A.D.3d 1213, 171 N.Y.S.3d 687 (4^th Dept., 2022) the Appellate Division held that  contentions raised for the first time in a reply brief were not properly before the court  (see Matter of Carroll v. Chugg, 141 A.D.3d 1106, 1106, 34 N.Y.S.3d 848 [4th Dept. 2016]; Cunningham v. Cunningham, 137 A.D.3d 1704, 1705, 28 N.Y.S.3d 751 [4th Dept. 2016]). It also held that the  issues raised by the AFC were not properly before it where the AFC did not file a notice of appeal (see Matter of Noble v. Gigon, 165 A.D.3d 1640, 1641, 82 N.Y.S.3d 923 [4th Dept. 2018], lv denied 33 N.Y.3d 902, 2019 WL 1941819 [2019]; Carroll, 141 A.D.3d at 1106, 34 N.Y.S.3d 848

 

 

 

Supreme Court

 

 

Court has discretion to limit, modify or vacate the automatic stay imposed by the posting of a Bond for payment of counsel fee award pending appeal

 

            In B.N., v. M.N.,.2022 WL 3591083( Sup. Ct, 2022) this Court, awarded the Plaintiff $75,000.00 for interim counsel fees, The defendant posted a Bond to stay the payment pending appeal. Supreme Court held that it has the authority to limit, modify or vacate the stay imposed by the posting of the Bond, and it vacated the Bond. It held that staying enforcement of an award of interim counsel fees to the nonmonied spouse was, in and of itself, untethered from the intent of DRL § 237(a) and at odds with prevailing case-law. The Court found that the posting of the Bond with respect to the award of interim counsel fees as ordered by this Court functioned, in effect as a denial of the application for fees. (Citing Weschler v. Weschler, 8 Misc 3d 328 (Supreme Court New York County 2005). In Weschler, Justice Gische wrote that “...[t]he fact that the stay is automatic does not remove it from the purview of the court’s discretion to otherwise vacate, limit or modify the stay. Moreover, the statute expressly gives the court issuing the order appealed from such discretion...” It noted that in Karg v. Kern 125 AD3d 527 (1st Dept. 2015)., the First Department unanimously affirmed an Order of the New York County Supreme Court, which, inter alia, vacated an automatic stay obtained therein.

 

 

Veterans military disability retirement pay, and VA financial compensation are not subject to equitable distribution          

 

            In B.C., v. M.C., --- N.Y.S.3d ----, 2022 WL 3591082, 2022 N.Y. Slip Op. 22266 (Sup Ct, 2022) defendant’s request for an Order directing that the Plaintiff’s military disability retirement pay, and VA financial compensation were  subject to equitable distribution was denied. Plaintiff had medical issues that rendered her permanently disabled, entitling her to disability retirement benefits from the United States Coast Guard. The Court observed that ”Department of Defense Financial Management Regulation, Volume 7B . . . addresses and explains the retired pay system[.] Pursuant to § 290701 (C) (5) if the percentage of disability is chosen, then it is not part of disposable retirement pay. The Uniformed Services Former Spouse’s Protection Act (10 USC § 1408 (a) (4) (iii)) defines disposable retired pay as “the total monthly retired pay to which a member is entitled less amounts which in the case of a member entitled to retired pay under chapter 61 of this title [10 USCS §§ 1201 et seq.], are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member’s disability on the date when the member was retired (or the date on which the member’s name was placed on the temporary disability retired list).” In 1982 Congress passed “the Uniformed Services Former Spouses’ Protection Act, 10 U.S.C. § 1408. Congress wrote that a State may treat veterans’ “disposable retired pay” as divisible property, i.e., community property divisible upon divorce. However, the new Act expressly excluded from its definition of “disposable retired pay” amounts deducted from that pay “as a result of a waiver . . . required by law in order to receive” disability benefits.” (see Howell v Howell, 137 S Ct 1400 [2017]). The Third Department has held  “that a court in an action for divorce or separation cannot order as spousal maintenance the allocation of compensation received by a veteran derived from military pay waived in order for the retiree to receive veterans’ disability benefits.” (see Hoskins v Skojec, 265 AD2d 706 [3d Dept 1999]; Mills v Mills, 22 AD3d 1003 [3d Dept 2005]). VA benefits are awarded based solely on a disability that has resulted from injury or disease contracted in the line of duty and as such these benefits are separate property and are “not subject to equitable distribution[.]” (see Murphy v Murphy, 126 AD3d 1443 [4th Dept 2015]).

 

 

Family Court

 

 

Under the Family First Prevention Services Act (FFPSA), which is intended to ensure that children removed from their homes do not languish in restrictive, congregate settings unnecessarily the court must determine the most appropriate and least restrictive placement possible

           

            In Matter of Felipe R.,172 N.Y.S.3d 350, 2022 N.Y. Slip Op. 22216 (Fam Ct, 2022) ACS filed a motion seeking an order that continued qualified residential treatment facility placement was necessary to adequately address the child’s needs.  A hearing was held pursuant to SSL § 393(2), F.C.A. § 353.7(3), § 756-b(3), § 1055-c(2), § 1091-a, and § 1097, through which the Family First Prevention Services Act (FFPSA), 42 U.S.C. § 672 and § 675a are codified in New York. This statute, in relevant part, is intended to ensure that children removed from their homes do not languish in restrictive, congregate settings unnecessarily. The Court was asked to determine the most appropriate and least restrictive placement possible for Felipe, who had autism. The Court pointed out that in order to maintain his current placement, the Court must determine whether 1) Felipe’s needs can/cannot be met through a placement in family-based foster care; 2) a group placement is the most effective and appropriate placement; 3) placement is the least restrictive possible placement given Felipe’s needs; and 4) such placement is consistent with the long- and short-term planning goals in place for the subject child. The Court found that ACS  failed to meet its burden under FFPSA and FCA 1055-c.  Placement of the child alleged to be neglected in qualified residential treatment facility was not the  least restrictive placement possible and continued placement was not appropriate under Family First Prevention Services Act (FFPSA). Although the child was diagnosed with autism and struggled with self-soothing, hygiene, expressing his needs, and other basic tasks, until the filing of neglect petition, the child had been living with his mother and siblings where his basic needs were met without extensive additional services, and services that child received at facility were available in the community. Such placement was not consistent with the child’s short- or long-term needs, and, thus, child’s continued placement in facility was not appropriate under Family First Prevention Services Act (FFPSA). The  goal was for child to return home, the child was only ten years old and was among the youngest residents at facility, the child did not transition to group care easily, and the child, as shown through his connection to his current family, would benefit from long-term relationships. To find otherwise would essentially mean that any child suffering from relatively severe autism can only live in a group facility. It held that under the requirements of Family First, ACS must seek a therapeutic foster home or, if after the 1028 hearing is complete, Felipe is returned home, provide adequate at home services consistent with Felipe’s short- and long-term needs.

 

 

August 10, 2022

 

 

Appellate Division, First Department

 

 

Family Court has jurisdiction, in a juvenile delinquency proceeding, to entertain an application for the expungement of DNA evidence

 

            In Matter of Francis O.,170 N.Y.S.3d 71, 2022 N.Y. Slip Op. 03969 (1^st Dept.,2022) the Appellate Division held that  in a proper case, Family Court has jurisdiction, in a juvenile delinquency proceeding, to entertain an application for the expungement of DNA evidence pursuant to Executive Law § 995–c(9)(b). It further found that under the facts presented, it had not been established that appellant abandoned the cup containing his DNA material or waived his privacy interest in the cup, and therefore had standing to challenge the taking of a sample of his DNA, which was obtained without his knowledge or consent and in violation of his constitutional and due process rights. It also found that under the totality of the circumstances, it was an improvident exercise of the court’s discretion to deny expungement of his DNA sample and all related information.

 

 

 

A permanency goal of free for adoption does not lead to a petition to terminate parental rights

 

            In Matter of Mahkayla W, 206 A.D.3d 599, 170 N.Y.S.3d 551, 2022 N.Y. Slip Op. 04231(1^st Dept.,2022) a neglect proceeding, the Appellate Division found that the father’s argument that his due process rights were violated by the change in the permanency goal was not grounded in the statute and would prejudice the subject children in obtaining permanency. A permanency goal of free for adoption does not lead to a petition to terminate parental rights, since the statute allows the court to adjudicate a particular goal yet direct the agency to engage in concurrent planning (see Family Court Act § 1089 [c][4][iii], [d][2][iv]).

 

Appellate Division, Second Department

Where a separation agreement contains a provision that expressly provides that modifications must be in writing, an alleged oral modification is enforceable only if there is part performance that is unequivocally referable to the oral modification

 

 

            In Kirk v Kirk, --- N.Y.S.3d ----, 2022 WL 2962592, 2022 N.Y. Slip Op. 04718 (2d Dept.,2022) the  parties were married on September 16, 1984, and had three children. On January 9, 2007, the parties entered into a written separation agreement. The separation agreement, as modified, was incorporated but not merged into the judgment of divorce. The Appellate Division found that the defendant demonstrated that the plaintiff breached the terms of the parties’ agreement, as modified, by failing, inter alia, to pay the real estate taxes on the former marital residence and to reimburse her for expenses incurred relative to the utilities, gardening, maintenance, and repairs. It held that where, as here, the parties’ separation agreement contains a provision that expressly provides that modifications must be in writing, an alleged oral modification is enforceable only if there is part performance that is unequivocally referable to the oral modification. In order to be unequivocally referable, conduct must be inconsistent with any other explanation.  Contrary to the plaintiff’s contention, he failed to allege acts of part performance that were unequivocally referable to the alleged oral agreement to modify the terms of the parties’ separation agreement sufficient to obviate the need for a writing.

 

 

Family Offense petition against Respondents Attorney properly dismissed for lack of subject matter jurisdiction.  Attorney functioning only as counsel excluded from the definition of “intimate relationship”

 

            In Matter Uzamire v. Idehen, --- N.Y.S.3d ----, 2022 WL 2962620 (Mem), 2022 N.Y. Slip Op. 04729 (2d Dept.,2022) petitioner commenced related family offense proceedings against her husband, Ehigie Uzamere  and against Uzamere’s attorney, Austin I. Idehen. Family Court, inter alia, without a hearing, dismissed the petition asserted against Idehen for lack of subject matter jurisdiction. The Appellate Division affirmed. The Family Court is a court of limited jurisdiction, and thus, it “cannot exercise powers beyond those granted to it by statute.” Pursuant to Family Court Act § 812(1)(e), the Family Court’s jurisdiction in family offense proceedings is limited to certain proscribed criminal acts that occur “between spouses or former spouses, or between parent and child or between members of the same family or household.” The definition of “members of the same family or household” includes “persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship.” Expressly excluded from the definition of “intimate relationship” are “casual acquaintance[s]” and “ordinary fraternization between two individuals in business or social contexts” (Family Ct Act § 812[1][e]). Petitioner conceded that Idehen was not related to her by consanguinity and she did not allege any interactions with Idehen other than when Idehen functioned as Uzamere’s counsel. Thus, the court properly dismissed the petition asserted against Idehen for lack of subject matter jurisdiction.

 

Supreme Court was not required to hold a hearing on custody enforcement petition which did not seek any relief related to custody

 

            In Soumare v White, 206 A.D.3d 661, 170 N.Y.S.3d 148, 2022 N.Y. Slip Op. 03519 (2d Dept.,2022) in an order dated October 14, 2016, the Supreme Court awarded custody of the subject child, born in 2013, to the mother and directed, inter alia, that the father would have parental access with the child every Sunday for four hours. In March 2021, the father filed a petition to enforce the order, asserting that the mother was violating the order by failing to cooperate with its parental access provisions. The petition alleged, among other things, that on a recent Sunday, when the father arrived 10 minutes late to pick up the child for parental access, the mother left the pick-up location with the child, did not permit the parental access to occur, and then failed to bring the child to the next four parental access sessions. The Supreme Court addressed the father’s petition by conducting two conferences, at which both parties made statements under oath. The court then issued an order dated April 28, 2021, which, in large part, restated the provisions of the order dated October 14, 2016. In addition, the order added one hour to the father’s weekly parental access sessions, and included a provision stating that “[t]here is a 15 min window for all pick up and drop off’s.” The Appellate Division affirmed. It held that the Supreme Court was not required to hold a hearing on his enforcement petition. The father’s petition did not involve a custody determination, which, as a general matter, “should be rendered only after a full and plenary hearing and inquiry”. The petition did not seek any relief related to custody, but rather alleged only that the mother failed to drop off the child for parental access as required by the order dated October 14, 2016, and thus sought enforcement of that order. The court, after eliciting sworn statements from both parties, fashioned a workable remedy by reminding both parties of their obligations, awarding the father an additional hour of parental access each week, and directing that a 15–minute lateness window would apply to both the father’s pick-up time and the mother’s drop-off time.

 

 

 

Appellate Division, Third Department

 

 

Improper to grant summary judgment motion where facts if established, raised issues concerning whether the wife was meaningfully represented during the abbreviated negotiations, and also raised an inference that the husband did not intend on engaging in a good faith negotiation of the agreement

 

In Spiegel v Spiegel, 206 A.D.3d 1178 (3d Dept.,2022) the Plaintiff (husband) and defendant (wife) were married in February 2011 after a lengthy period of cohabitation beginning in 2001. The parties had four children together (born in 2007, 2009, 2010 and 2017). Two days before they were married, the parties executed a prenuptial. In June 2019, the husband commenced an action for divorce. The wife answered and asserted two counterclaims, seeking an award of maintenance and a judgment setting aside the agreement as invalid. Supreme Court deemed the agreement valid and dismissed the wife’s counterclaims. The Appellate Division held,, inter alia,  viewing the evidence in the light most favorable to the wife, there were issues of fact raised by the circumstances surrounding the execution of the agreement that preclude an award of summary judgment. Prior to the marriage there was a pronounced financial disparity between the husband and the wife, who had no assets at the time of the marriage and was previously employed by the state. After cohabitating for approximately 10 years, the parties decided to get married and, at the husband’s insistence, resolved to enter into a prenuptial agreement. According to the wife, she had no discussion or input on counsel of her choice, and simply was forwarded a retainer agreement and statement of client rights from her counsel’s office, which she was unable to open and never executed. After consulting with his counsel over several days, the husband approved an initial draft of the agreement, which was forwarded to the wife’s counsel on January 27, 2011. Thereafter, negotiations on the agreement between counsel began in earnest on February 1, 2011 and continued over a three-day period. The parties executed a final version of the agreement on February 4, 2011, two days before they were married. The wife stated that she did not receive an initial draft of the agreement prior to consulting with counsel. While the wife conceded that she had a single conversation with her counsel that lasted between 30 and 45 minutes, the record failed to definitively establish that she had any further meaningful discussions with counsel during the ensuing negotiations. After that discussion, the wife’s counsel sent several proposed changes concerning the agreement to the husband’s counsel. The record demonstrated that, after receiving an email from his counsel concerning the proposed changes, the husband responded to his counsel that he understood the role of the wife’s counsel as one in which he would merely explain the terms of the proposed agreement, rather than serve as her representative in a negotiation on its terms. Specifically, the husband stated that he had hired the wife’s counsel “to make sure [that the wife] fully understands the agreement,” and not “to create friction,” “re-write the agreement” or “dig into issues he does not know about.” The husband also provided a list of various circumstances that the wife’s counsel did not understand and stated that he would not provide the wife’s counsel with a detailed list of his bank accounts because he was out of town and that the wife was already familiar with his finances. The wife sharply disputed the husband’s representation, claiming that she had little knowledge of the extent of the husband’s finances beyond some basic knowledge as to certain businesses he operated. The wife also averred that she and the husband had minimal discussions pertaining to the agreement beyond his bare statements that a prenuptial agreement was necessary to protect his business interests. The wife claimed that the husband told her on various occasions that without the agreement, there would be no wedding. The wife  represented that, during the negotiations, the husband told her that the agreement was as fair as it was going to get, and that she should just sign it and not focus on every detail. The wife stated that the husband provided various reassurances that he would always take care of her and that the agreement was “no big deal.” While the communications submitted by the husband in support of his motion indicate that counsel for the parties continued discussing potential changes to the agreement, there was conflicting evidence establishing the extent that the wife was meaningfully involved in those discussions. The wife averred that the first opportunity she had to review the agreement was in Florida, at which point it was already in its final form. These facts if established, raised issues concerning whether the wife was meaningfully represented during the abbreviated negotiations, and also raised an inference that the husband did not intend on engaging in a good faith negotiation of the agreement from the outset, which, if true, would be sufficient to establish overreaching on his part . Accordingly, it found find that Supreme Court improperly granted the husband’s motion.

           

Appellate Division, Fourth Department

Father who has promptly taken every available avenue to demonstrate that he is willing and able to enter into the fullest possible relationship with his under-six-month-old child is a “consent” father even if he has not as yet actually been able to form that relationship.

 

In Matter of Adoption of William, 206 A.D.3d 1696, 170 N.Y.S.3d 447, 2022 N.Y. Slip Op. 03831 (4^th Dept.,2022)  the Appellate Division found that respondent-petitioner Douglas W.M. (father) was a consent father within the meaning of Domestic Relations Law § 111 (1) (e) and there  was a sound and substantial basis to support the determination of Family Court that the father demonstrated “his willingness to take parental responsibility” (Matter of Raquel Marie X., 76 N.Y.2d 387, 402, 559 N.Y.S.2d 855, 559 N.E.2d 418 [1990]) It held that a father who has promptly taken every available avenue to demonstrate that he is willing and able to enter into the fullest possible relationship with his under-six-month-old child should have an equally fully protected interest in preventing termination of the relationship by strangers, even if he has not as yet actually been able to form that relationship. The father did everything possible to manifest and establish his parental responsibility’ under the circumstances ... He publicly acknowledged his paternity from the outset of the pregnancy ..., and, although he did not pay any expenses in connection with the pregnancy or the birth,” he testified that all of those expenses were paid by the military. Moreover, prior to the child’s birth, the father pursued paternity testing and requested and received from the mother a commitment that he could have custody of the child, and actively began purchasing “items” in anticipation of obtaining custody of the child upon birth. Based on the mother’s commitment, the father enlisted the help of his military commanding officers to obtain custody of his child, and made plans for relatives or family friends to help care for the child until his enlistment in the military ended. It concluded that the father established his ability to assume custody of the child. Custody and housing are separate and distinct concepts. A parent who lacks housing for a child is not legally precluded from obtaining custody. Certainly, active military members should not lose custody of a child due to their service to our country. Many parents enlist the aid of family members to help them provide housing, including single parents who serve in the military. That temporary inability to provide housing should not preclude them from asserting their custodial rights to the children where, as here, they have established their intent to embrace their parental responsibility. The record supports the court’s findings that the father “reasonably and sincerely believed that the biological mother would not surrender the child for adoption ..., and that she frustrated his efforts to become involved with the child. The evidence at the hearing established that the mother lied to the father, telling him that she would give him custody of the child; misled petitioners into believing that the father did not want the child, even though she knew that he was aggressively pursuing custody; and misled the courts by filing a false affidavit stating that no one was holding himself out as the father. It found that there was a basis in the record to support a court’s determination whether a father’s consent is required, and would not disturb that determination.

 

 

Fourth Department Rules that Absent compelling circumstances, parties to a matrimonial action should not seek review of an order for temporary support

 

 

In Baxter v Baxter, 162 A.D.3d 1743, 76 N.Y.S.3d 449  (4 Dept., 2018) the Appellate Divison affirmed that part of a temporary order that imputed income to plaintiff for the purposes of calculating child support and directed defendant to pay pendente lite child support. It held that the best remedy for “any claimed inequity in awards of temporary alimony, child support or maintenance is a speedy trial where the respective finances of the parties can be ascertained and a permanent award based on the evidence may be made. Absent compelling circumstances, parties to a matrimonial action should not seek review of an order for temporary support…. Plaintiff has failed to allege the existence of compelling circumstances warranting review of the award of pendente lite child support.(citations omitted)

 

A person is aggrieved when he or she asks for relief but that relief is denied in whole or in part, or, when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part.   

 

            In Matter of Brady J.S., v. Darla A.B., --- N.Y.S.3d ----, 2022 WL 3094973, 2022 N.Y. Slip Op. 04858 (4^th Dept.,2022) the Appellate Division affirmed an order which modified a prior custody order to award the father joint custody with the mother and grandparents and shared physical residence with the grandparents, with zones of influence for the father and grandparents he father. The Appellate Division rejected the position taken by the father that neither the mother nor the AFC had standing to appeal. The mother was aggrieved by the order on appeal inasmuch as she had joint custody of the child with the grandparents and, through counsel, she opposed the father’s amended petition, which was granted, in part, by the order on appeal. A person is aggrieved within the meaning of CPLR 5511 when he or she asks for relief but that relief is denied in whole or in part, or, when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part. The mother, as a joint custodian of the child, had a direct interest in the matter at issue that was affected by the result, and the adjudication had binding force against her rights, person or property. Based on its determination regarding the mother’s standing, it concluded that the AFC also had standing to appeal the order (see Matter of Newton v. McFarlane, 174 A.D.3d 67, 71-74, 103 N.Y.S.3d 445 [2d Dept. 2019]]).

 

            The Appellate Division held that the failure to conduct a Lincoln hearing does not require remittal under the circumstances of this case A Lincoln hearing, though often preferable, is not mandatory, and the determination is addressed to courts discretion. In determining whether such a hearing is warranted, the court must determine whether the in camera testimony of the child will on the whole benefit the child by obtaining for the Judge significant pieces of information he or she needs to make the soundest possible decision. Here, the court was able to discern the child’s wishes as a result of the position expressed by the AFC.

 

 

An agreement is voidable on the ground of duress when threats of an unlawful act deprived the party of the exercise of free will.

 

            In Campbell v Campbell, --- N.Y.S.3d ----, 2022 WL 3094725, 2022 N.Y. Slip Op. 04875 (4^th Dept.,2022) the parties were married in June 1989 and entered into a postnuptial agreement on August 31, 2017. In July 2019, plaintiff commenced this action for divorce. Plaintiff asserted affirmative defenses alleging that the 2017 agreement should be found null and void or set aside on the grounds that, inter alia, he signed the 2017 agreement under duress and that the 2017 agreement was unconscionable. Defendant moved for summary judgment seeking, inter alia, an order dismissing plaintiff's affirmative defenses. Following a hearing, Supreme Court concluded that the 2017 agreement was unconscionable and manifestly unfair. The Appellate Division reversed. It found, among other things, that the Supreme Court erred insofar as it held that plaintiff signed the 2017 agreement under duress as a result of defendant’s emotional abuse. An agreement 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. Generally, the aggrieved party must demonstrate that threats of an unlawful act compelled his or her performance of an act which he or she had the legal right to abstain from performing. The threat must be such as to deprive the party of the exercise of free will. Even accepting as true plaintiff’s allegations that defendant persistently urged him to sign the 2017 agreement and threatened to tell the parties’ children of plaintiff’s wrongful actions in the past, such conduct did not amount to any unlawful acts on the part of defendant sufficient to constitute duress .

 

 

Laws of 2022

 

Laws of 2022, Ch 365, § 2, amended Family Court Act § 121 effective June 30, 2022 to read as follows:

 

§ 121. Number of judges

The family court within the city of New York shall consist of  sixty judges, effective January first, two thousand  twenty-three. There shall be at least one family court judge resident in each county of the city of New York. (NY Legis 365 (2022), 2022 Sess. Law News of N.Y. Ch. 365)

 

 

Laws of 2022, Ch 365, § 3, amended Family Court Act § 131(d) and (g) effective June 30, 2022 to read as follows:

 

(d) In the county of Nassau there shall be  nine family court judges and the number of such judges now existing in said county is hereby increased accordingly.

 

(g) There shall be a separate office of judge of the family court for the counties of Oswego and Sullivan and the compensation payable for each such separate office of judge of the family court shall be twenty-five thousand dollars per annum. In the county of Saratoga there shall be  two additional family court  judges and the number of such judges now existing in such county is hereby increased accordingly. The compensation of such additional family court judge shall be the same as the compensation of the existing family court judge in such county. (NY Legis 365 (2022), 2022 Sess. Law News of N.Y. Ch. 365)

 

 

Laws of 2022, Ch 479, § 7 amended Domestic Relations Law, 115, subdivision 5 effective July 26, 2022 to delete the words “mentally retarded” and replace them with the words “developmentally disabled.” It now reads:

 

5. Where the petition alleges that either or both of the birth parents of the child have been deprived of civil rights or are mentally ill or  developmentally disabled, proof shall be submitted that such disability exists at the time of the proposed adoption.(NY Legis 479 (2022), 2022 Sess. Law News of N.Y. Ch. 479)

 

Laws of 2022, Ch 479, § 17 amended Family Court Act § 115(b) effective July 26, 2022 to delete the words “mentally defective or retarded” and replace them with the words “developmentally disabled’. It now reads:

 

(b) The family court has such other jurisdiction as is set forth in this act, including jurisdiction over habeas corpus proceedings and over applications for support, maintenance, a distribution of marital property and custody in matrimonial actions when referred to the family court by the supreme court, conciliation proceedings, and proceedings concerning physically handicapped and  developmentally disabled children. (NY Legis 479 (2022), 2022 Sess. Law News of N.Y. Ch. 479)

 

Laws of 2022, Ch 479, § 6 amended the third undesignated paragraph Domestic Relations Law, 13–d, subdivision 1 effective July 26, 2022 to delete the words “mental retardation” and replace them with the words “developmental disability. It now reads:

 

Rubella infection poses a grave threat to the unborn child, especially during the first four months of pregnancy. It can lead to miscarriage, stillbirth, or one or all of the tragic defects such as deafness, blindness, crippling congenital heart disease,  developmental disability and muscular and bone defects. (NY Legis 479 (2022), 2022 Sess. Law News of N.Y. Ch. 479)

 

CPLR 4549 Added

 

     The civil practice law and rules was amended by adding CPLR 4549, a new exception to the rule against hearsay. This was intended to relax the common law exclusion of the hearsay statement of a party's agent or employee, provided that the statement was on a matter within the scope of that employment or agency relationship, and made during the existence of the relationship. The amendment is intended to change the extent of authority that a proponent must show in order to make the hearsay statement of an opposing party's agent or employee admissible. While under current law it appears clear that a hearsay statement will be admissible if there was actual authority to speak on behalf of the party, such authority often may be shown only by implication in light of the circumstances of the employment or agency relationship. In practice, this tends to limit "speaking authority" to only the high levels of management. See 2021 NY Legis Memo 833.

 

            CPLR § 4549 provides that an “statement offered against an opposing party shall not be excluded from evidence as hearsay if made by a person whom the opposing party authorized to make a statement on the subject or by the opposing party's agent or employee on a matter within the scope of that relationship and during the  existence of that relationship.  Laws of 2021, Ch 833, effective December 31, 2021

 

 

 

Laws of 2022, Ch 219, § 5 amended CPLR 3102 (e) effective June 13, 2022  to read as follows:

 

(e) Action pending in another jurisdiction. Except as provided in section three thousand one hundred nineteen of this article, when under any mandate, writ or commission issued out of any court of record in any other state, territory, district or foreign jurisdiction, or whenever upon notice or agreement, it is required to take the testimony of a witness in the state, he or she may be compelled to appear and testify in the same manner and by the same process as may be employed for the purpose of taking testimony in actions pending in the state. The supreme court or a county court shall make any appropriate order in aid of taking such a deposition; provided that no order may be issued under this section in connection with an out-of-state proceeding relating to any abortion services or procedures which were legally performed in this state, unless such out-of-state proceeding (1) sounds in tort or contract, or is based on statute, (2) is actionable, in an equivalent or similar manner, under the laws of this state, and (3) was brought by the patient who received reproductive healthcare, or the patient's legal representative.

 

 

Laws of 2022, Ch 219, § 4 amended CPLR 3119 by adding a new subdivision  (g) effective June 13, 2022  to read as follows:

 

(g) Out-of-state abortion proceedings. Notwithstanding any other provisions of this section or any other law, no court or county clerk shall issue a subpoena under this section in connection with an out-of-state proceeding relating to any abortion services or procedures which were legally performed in this state, unless such out-of-state proceeding (1) sounds in tort or contract, or is based on statute, (2) is actionable, in an equivalent or similar manner, under the laws of this state, and (3) was brought by the patient who received reproductive healthcare, or the patient's legal representative.

 

 

 

 

July 27, 2022

 

Appellate Division, Second Department


A court acting pursuant to the UCCJEA which communicates with a court of another state on substantive matters, if the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.

            In Matter of Touchet v Horstman, --- N.Y.S.3d ----, 2022 WL 2823157, 2022 N.Y. Slip Op. 04633 (2d Dept.,2022) the Appellate Division pointed out that when a court acting pursuant to the UCCJEA communicates with a court of another state on substantive matters, it must make a record of the communication, promptly inform the parties of the communication, and grant the parties access to the record (see Domestic Relations Law § 75–i[4]). The court may, in its discretion, allow the parties to participate in the communication, but “[i]f the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made” (Domestic Relations Law § 75–i[2]). Here,  the Family Court correctly determined that, in light of the pending proceedings in California, it was required to communicate with the California court (see Domestic Relations Law §§ 76–e, 77–f). However, after providing that information to the parties, who had not participated in the communication, the court immediately announced its decision on the issue of jurisdiction, without affording the parties an opportunity to present facts and legal arguments. This did not comport with the requirements of Domestic Relations Law § 75–i(2), and, under the circumstances of this case, required reversal.

 

 

July 20, 2022

 

New and Revised Uniform Rules Applicable in Matrimonial Actions as of July 1, 2022

 

Administrative Order AO/141/22 adopted revisions to 22 NYCRR 202.16 and 202.16-b (Matrimonial Rules) effective July 1, 2022.   The Administrative Order makes most of 22 NYCRR Part 202, which includes the recently enacted Commercial Division Rules, applicable to matrimonial actions and proceedings, except as otherwise provided 22 NYCRR 202.16 and in 22 NYCRR 202.16-a , 202.16-b,  and 202.18,  which sections control in the event of conflict.   Click here to download copies of the 31 new and revised rules Copies of the revised Preliminary Conference form may be downloaded from our website at www.nysdivorce.com

The Uniform Rules which are incorporated into the matrimonial rules include the following  rules which were added  to 22 NYCRR Part 202 effective February 1, 2021: 22 NYCRR 202.8-a; 22 NYCRR 202.8-b; 22 NYCRR 202.8-c; 22 NYCRR 202.8-d; 22 NYCRR 202.8-e; 22 NYCRR 202.8-f and 22 NYCRR 202.8-g; 22 NYCRR 202.10; 22 NYCRR 202.11; 22 NYCRR 202.20; 22 NYCRR 202.20-a; 22 NYCRR 202.20-b; 22 NYCRR 202.20-c; 22 NYCRR 202.20-d; 22 NYCRR 202.20-e; 22 NYCRR 202.20-f; 22 NYCRR 202.20-g; 22 NYCRR 202.20-h; 22 NYCRR 202.20-I; 22 NYCRR 202.20-j; 22 NYCRR 202.23; 22 NYCRR 202.29; 22 NYCRR 202.34; and 22 NYCRR 202.37.

            In addition, the Uniform Rules which are incorporated into the matrimonial rules  include the following rules which were amended: 22 NYCRR 202.1, Added (f) & (g) on Dec. 29. 2020, effective February 1, 2021; 22 NYCRR 202.5, Amended (a)(1) & added (a)(2) on Dec. 29. 2020, effective February 1, 2021; 22 NYCRR 202.5-a, Amended (a) & (b) on Dec. 29. 2020, effective February 1, 2021; 22 NYCRR 202.6, Amended (b) on Jan. 7, 2022, effective February 1, 2022; 22 NYCRR 202.26 , Amended on Dec. 29. 2020, effective February 1, 2021; and 22 NYCRR 202.28, Amended (a) & (b) on Dec. 29. 2020, effective February 1, 2021.  Go to our website at www.nysdivorce.com for copies of all of the revised rules.

 

 

Appellate Division, Second Department

Family Court Act does not provide for dismissal of a proceeding on the ground of improper or inconvenient venue

 

            In Matter of Vandunk v. Bonilla, --- N.Y.S.3d ----, 2022 WL 2709352 (Mem), 2022 N.Y. Slip Op. 04554 (2d Dept.,2022) the Appellate Division held that the Family court erred in dismissing the family offense petition on the ground that the proceeding was commenced in the wrong county. A family offense proceeding may be originated in the county in which the act or acts referred to in the petition allegedly occurred or in which the family or household resides or in which any party resides ” (FCA § 818). Since the mother resided in Rockland County, the mother commenced this proceeding in a proper venue. The Appellate Division noted that even if the mother had commenced this proceeding in an improper venue, that would not have been a basis for dismissing the petition. The Family Court Act does not provide for dismissal of a proceeding on the ground of improper or inconvenient venue. The proper remedy when the venue of a proceeding is placed in an improper or inconvenient county is to transfer the proceeding to the proper or more convenient county pursuant to Family Court Act § 174.

 

           

The  right to due process encompasses a meaningful opportunity to be heard at a fact-finding hearing on a neglect petition and to present evidence relevant to the proceedings

 

            In Matter of Serena G,  --- N.Y.S.3d ----, 2022 WL 2709345, 2022 N.Y. Slip Op. 04547 (2d Dept.,2022) the Appellate Division held that the Family Court improperly made findings of fact without a hearing on the derivative neglect petition. On the second day of the fact-finding hearing on the neglect petition as to Serena, the court described the proceeding as a “continuing trial,” and made no reference on the record to the newly-filed derivative neglect petition as to Vincent (see Family Ct Act § 1041[a]). On the third day of the fact-finding hearing, the court again made no reference to Vincent. The only reference in the available record to the Family Court directing a joint hearing or consolidation of the two petitions occurred at the commencement of the dispositional hearing, at which time the court confirmed that it had consolidated the petitions for purposes of its decision dated October 9, 2020. It held that the  right to due process encompasses a meaningful opportunity to be heard at a fact-finding hearing on a neglect petition and to present evidence relevant to the proceedings. The proceeding with respect to Vincent had to be remitted to the Family Court, for a fact-finding hearing, in order to afford the parties an opportunity to introduce evidence relevant to the petition to adjudicate Vincent a derivatively neglected child.

 

 

July 13, 2022

 

 

New and Revised Uniform Rules Applicable in Matrimonial Actions as of July 1, 2022

 

Administrative Order AO/141/22 adopted revisions to 22 NYCRR 202.16 and 202.16-b (Matrimonial Rules) effective July 1, 2022.   The Administrative Order makes most of 22 NYCRR Part 202, which includes the recently enacted Commercial Division Rules, applicable to matrimonial actions and proceedings, except as otherwise provided 22 NYCRR 202.16 and in 22 NYCRR 202.16-a , 202.16-b,  and 202.18,  which sections control in the event of conflict.   Click here to download copies of the 31 new and revised rules Copies of the revised Preliminary Conference form may be downloaded from our website at www.nysdivorce.com

The Uniform Rules which are incorporated into the matrimonial rules include the following  rules which were added  to 22 NYCRR Part 202 effective February 1, 2021: 22 NYCRR 202.8-a; 22 NYCRR 202.8-b; 22 NYCRR 202.8-c; 22 NYCRR 202.8-d; 22 NYCRR 202.8-e; 22 NYCRR 202.8-f and 22 NYCRR 202.8-g; 22 NYCRR 202.10; 22 NYCRR 202.11; 22 NYCRR 202.20; 22 NYCRR 202.20-a; 22 NYCRR 202.20-b; 22 NYCRR 202.20-c; 22 NYCRR 202.20-d; 22 NYCRR 202.20-e; 22 NYCRR 202.20-f; 22 NYCRR 202.20-g; 22 NYCRR 202.20-h; 22 NYCRR 202.20-I; 22 NYCRR 202.20-j; 22 NYCRR 202.23; 22 NYCRR 202.29; 22 NYCRR 202.34; and 22 NYCRR 202.37.

            In addition, the Uniform Rules which are incorporated into the matrimonial rules  include the following rules which were amended: 22 NYCRR 202.1, Added (f) & (g) on Dec. 29. 2020, effective February 1, 2021; 22 NYCRR 202.5, Amended (a)(1) & added (a)(2) on Dec. 29. 2020, effective February 1, 2021; 22 NYCRR 202.5-a, Amended (a) & (b) on Dec. 29. 2020, effective February 1, 2021; 22 NYCRR 202.6, Amended (b) on Jan. 7, 2022, effective February 1, 2022; 22 NYCRR 202.26 , Amended on Dec. 29. 2020, effective February 1, 2021; and 22 NYCRR 202.28, Amended (a) & (b) on Dec. 29. 2020, effective February 1, 2021.  Go to our website at www.nysdivorce.com for copies of all of the revised rules.

ew and Revised Uniform Rules Applicable in Matrimonial Actions as of July 1, 2022

 

Administrative Order AO/141/22 adopted revisions to 22 NYCRR 202.16 and 202.16-b (Matrimonial Rules) effective July 1, 2022.   The Administrative Order makes most of 22 NYCRR Part 202, which includes the recently enacted Commercial Division Rules, applicable to matrimonial actions and proceedings, except as otherwise provided 22 NYCRR 202.16 and in 22 NYCRR 202.16-a , 202.16-b,  and 202.18,  which sections control in the event of conflict.   Copies of the 31 new and revised rules (with Appendix A and Appendix B) and revised Preliminary Conference form may be downloaded by clicking the links above or from our website at www.nysdivorce.com

 

        The Uniform Rules which have been incorporated into the matrimonial rules encourage appearances for the argument of motions and for conferences by electronic means. 22 NYCRR  202.8-f provides that oral arguments may be conducted by the court by electronic means and requires each court or court part to adopt a procedure governing requests for oral argument of motions.  In the absence such a procedure by a particular court or part, any party may request oral argument of a motion by letter accompanying the motion papers.  Notice of the date selected by the court must  be given, if practicable, at least 14 days before the scheduled oral argument.  22 NYCRR 202.10 (a) provides that any party may request to appear at a conference by electronic means. Where feasible and appropriate, the court is encouraged to grant such requests.

Administrative Order AO/141/22 also  adopted a revised Preliminary Conference Stipulation/Order-Contested Matrimonial Form (“PC Order”) for use in matrimonial matters effective July 1, 2022 which may be downloaded from the Divorce Resources website under Statewide Official Forms at effective July 1, 2022.  

            The new rules which are incorporated into the matrimonial rules include the following  rules which were added  to 22 NYCRR Part 202 effective February 1, 2021: Section 202.8-a; 202.8-b; 202.8-c;202.8-d;202.8-e; 202.8-f and 202.8-g; 202.10; 202.11; 202.20; 202.20-a; 202.20-b; 202.20-c; 202.20-d; 202.20-e; 202.20-f; 202.20-g; 202.20-h; 202.20-I; 202.20-j; 202.23; 202.29; 202.34; 202.37 Added on Dec. 29. 2020, effective February 1, 2021

            In addition, they include the following rules which were amended as follows: Section 202.1 Added (f) & (g) on Dec. 29. 2020, effective February 1, 2021; Section 202.5 Amended (a)(1) & added (a)(2) on Dec. 29. 2020, effective February 1, 2021;Section 202.5-a Amended (a) & (b) on Dec. 29. 2020, effective February 1, 2021;Section 202.6 Amended (b) on Jan. 7, 2022, effective February 1, 2022;Section 202.26 Amended on Dec. 29. 2020, effective February 1, 2021; and Section 202.28 Amended (a) & (b) on Dec. 29. 2020, effective February 1, 2021.

             Revised 22 NYCRR 202.16 and 202.16-b follow:

Section 202.16 Application of Part 202 and Section 202.16. Matrimonial actions; calendar control of financial disclosure in actions and proceedings involving alimony, maintenance, child support and equitable distribution; motions for alimony, counsel fees pendente lite, and child support; special rules

(a)        Applicability of Part 202 and Section 202.16.

(1) Part 202 shall be applicable to civil actions and proceedings in the Supreme Court, including, but not limited to, matrimonial actions and proceedings, except as otherwise provided in this section 202.16 and in sections 202.16-a, 202.16-b, and 202.18, which sections shall control in the event of conflict.

(2) This section shall be applicable to all contested actions and proceedings in the Supreme Court in which statements of net worth are required by section 236 of the Domestic Relations Law to be filed and in which a judicial determination may be made with respect to alimony, counsel fees, pendente lite, maintenance, custody and visitation, child support, or the equitable distribution of property, including those referred to Family Court by the Supreme Court pursuant to section 464 of the Family Court Act.

(b)       Form of Statements of Net Worth.

Sworn statements of net worth, except as provided in subdivision (k) of this section, exchanged and filed with the court pursuant to section 236 of the Domestic Relations Law, shall be in substantial compliance with the Statement of Net Worth form contained in  appendix A of this Part.

(c)        Retainer Agreements

(1)        A signed copy of the attorney's retainer agreement with the client shall accompany the statement of net worth filed with the court, and the court shall examine the agreement to assure that it conforms to Appellate Division attorney conduct and disciplinary rules. Where substitution of counsel occurs after the filing with the court of the net worth statement, a signed copy of the attorney's retainer agreement shall be filed with the court within 10 days of its execution.

(2)        An attorney seeking to obtain an interest in any property of his or her client to secure payment of the attorney's fee shall make application to the court for approval of said interest on notice to the client and to his or her adversary. The application may be granted only after the court reviews the finances of the parties and an application for attorney's fees.

(d)       Request for Judicial Intervention.

A request for judicial intervention shall be filed with the court by the plaintiff no later than 45 days from the date of service of the summons and complaint or summons with notice upon the defendant, unless both parties file a notice of no necessity with the court, in which event the request for judicial intervention may be filed no later than 120 days from the date of service of the summons and complaint or summons with notice upon the defendant. Notwithstanding section 202.6(a) of this Part, the court shall accept a request for judicial intervention that is not accompanied by other papers to be filed in court.

(e)        Certification of  Paper and Obligations of Counsel Appearing Before the Court

(1) Every paper served on another party or filed or submitted to the court in a matrimonial action shall be signed as provided in section 130-1.1a of this Title.

(2) Counsel who appear before the court must be familiar with the case with regard to which they appear and be fully prepared and authorized to discuss and resolve the issues which are scheduled to be the subject of the appearance. Failure to comply with this rule may be treated as a default for purposes of Rule 202.27 and/or may be treated as a failure to appear for purposes of Rule 130.21, provided that, in matrimonial actions and proceedings, consistent with applicable case law on defaults in matrimonial actions, failure to comply with this rule may, either in lieu of or in addition to any other direction, be considered in the determination of any award of attorney fees or expenses.

(f)        Preliminary Conference.

(1)        In all actions or proceedings to which this section of the rules is applicable, a preliminary conference shall be ordered by the court to be held within 45 days after the action has been assigned. Such order shall set the time and date for the conference and shall specify the papers that shall be exchanged between the parties. These papers must be exchanged no later than 10 days prior to the preliminary conference, unless the court directs otherwise. These papers shall include:

(i)         statements of net worth, which also shall be filed with the court no later than 10 days prior to the preliminary conference;

(ii)        all paycheck stubs for the current calendar year and the last paycheck stub for the immediately preceding calendar year;

(iii)       all filed State and Federal income tax returns for the previous three years, including both personal returns and returns filed on behalf of any partnership or closely held corporation of which the party is a partner or shareholder;

(iv)       all W-2 wage and tax statements, 1099 forms, and K-1 forms for any year in the past three years in which the party did not file State and Federal income tax returns;

(v)        all statements of accounts received during the past three years from each financial institution in which the party has maintained any account in which cash or securities are held;

. (vi) the statements immediately preceding and following the date of commencement of the matrimonial action pertaining to:

(a)        any policy of life insurance having a cash or dividend surrender value; and

(b)       any deferred compensation plan of any type or nature in which the party has an interest including, but not limited to, Individual Retirement Accounts, pensions, profit- sharing plans, Keogh plans, 401(k) plans and other retirement plans.

(1-a) Where both parties are represented by counsel, counsel shall consult with each other prior to the preliminary conference to discuss the matters set forth in paragraph (2) below and in NYCRR §202.11 in a good faith effort to· reach agreement on such matters. Notwithstanding NYCRR §202.11, no prior consultation is required where either or both of the parties is self­ represented. Counsel shall, prior to or at the conference, submit to the court a writing with respect to any resolutions reached, which the court shall "so order" if approved and in proper form.

(1-b) Both parties personally must be present in court at the time of the conference, and the judge personally shall address the parties at some time during the conference.

(2)        The matters to be considered at the conference may include, among other things:

(i)         applications for pendente lite relief, including interim counsel fees;

(ii)        compliance with the requirement of compulsory financial disclosure, including the exchange and filing of a supplemental statement of net worth indicating material changes in any previously exchanged and filed statement of net worth, and, including the number and length of depositions, the number of interrogatories, and agreement of the parties to comply with Guidelines on Electronically Stored Information. Unless otherwise stipulated by the parties or ordered by the court, interrogatories shall be no more than 25 in number including subparts; and depositions shall be no more than 7 hours long. The Provisions of NYCRR §202.20-b(a)(l) limiting the number of depositions taken by plaintiffs, or by defendants, or by third-party defendants, shall not apply to matrimonial actions.

(iii)       simplification and limitation of the issues;

(iv)       the establishment of a timetable for the completion of all disclosure proceedings, provided that all such procedures must be completed and the note of issue filed within six months from the commencement of the conference, unless otherwise shortened or extended by the court depending upon the circumstances of the case;

(v)        the completion of a preliminary conference order substantially in the form contained in Appendix "G" to these rules, with attachments; and

(vi)       any other matters which the court shall deem appropriate.

(3)        At the close of the conference, the court shall direct the parties to stipulate, in writing or on the record, as to all resolved issues, which the court then shall "so order," and as to all issues with respect to fault, custody and finance that remain unresolved. Any issues with respect to fault, custody and finance that are not specifically described in writing or on the record at that time may not be raised in the action unless good cause is shown. The court shall fix a schedule for discovery as to all unresolved issues and, in a noncomplex case, shall schedule a date for trial not later than six months from the date of the conference. The court may appoint an attorney for

the infant children, or may direct the parties to file with the court, within 30 days of the conference, a list of suitable attorneys for children for selection by the court. The court also may direct that a list of expert witnesses be filed with the court within 30 days of the conference from which the court may select a neutral expert to assist the court. The court shall schedule a compliance conference unless the court dispenses with the conference based upon a stipulation of compliance filed by the parties.

(4) Unless the court excuses their presence, the parties personally must be present in court at the time of the compliance conference. If the parties are present in court, the judge personally shall address them at some time during the conference. If the parties are present in court, the judge personally shall address them at some point during the conference. Where both parties are represented by counsel, counsel shall consult with each other prior to the compliance conference in a good faith effort to resolve any outstanding issues. Notwithstanding NYCRR §202.11, no prior consultation is required where either or both of the parties is self-represented. Counsel shall, prior to or at the compliance conference, submit to the court a writing with respect to any resolutions reached, which the court shall "so order" if approved and in proper form.

(5)        In accordance with Section 202.20-c (f), ,absent good cause, a party may not use at trial or otherwise any document which was not produced in response to a request for such document or category of document, which request was not objected to, or, if objected to, such objection was overruled by the court, provided, however, the court may exercise its discretion to impose such other, further, or additional penalty for non-disclosure as may be authorized by law and which may be more appropriate in a matrimonial action than preclusion or where there is a continuing obligation to update (e.g., updated tax returns, W-2 statements, etc.).

(6)        The Court shall alert the parties to the requirements of 22 NYCRR § 202.20-c regarding requests for documents;§ 202.20-e regarding adherence to discovery schedule, and§ 202.20-f regarding discovery disputes, and shall address the issues of potential for default, preclusion, denial of discovery, drawing inferences, or deeming issues to be true, as well as sanctions and/or counsel fees in the event default or preclusion or such other remedies are not appropriate in a matrimonial action.

(g)       Expert Witnesses and Other Trial Matters.

(1)        Responses to demands for expert information pursuant to CPLR section 3101(d) shall be served within 20 days following service of such demands.

(2)        Each expert witness whom a party expects to call at the trial shall file with the court a written report, which shall be exchanged and filed with the court no later than 60 days before the date set for trial, and reply reports, if any, shall be exchanged and filed no later than 30 days before such date. Failure to file with the court a report in conformance with these requirements may, in the court's discretion, preclude the use of the expert. Except for good cause shown, the reports exchanged between the parties shall be the only reports admissible at trial. Late retention of experts and consequent late submission of reports shall be permitted only upon a showing of good cause as authorized by CPLR 3101(d)(l)(i). In the discretion of the court, written reports may be used to substitute for direct testimony at the trial, but the reports shall be submitted by the expert under oath, and the expert shall be present and available for cross- examination. In the discretion of the court, in a proper case, parties may be bound by the expert's report in their direct case.

(3)        Pursuant to NYCRR §202.26, in cases in which both parties are represented by counsel and each party has called, or intends to call, an expert witness on issues of finances (e.g., equitable · distribution. maintenance, child support), the court may direct that, prior to, or during trial, counsel consult in good faith to identify those aspects of their respective experts' testimony that are not in dispute. The court may further direct that any agreements reached in this regard shall be reduced to a written stipulation. Such consultation shall not be required where one or both parties is self-represented or where the expert testimony relates to matters of child custody or parental access, domestic violence, domestic abuse, or child neglect or abuse.

(4)        The provisions of section 202.20-a regarding privilege logs shall not apply to matrimonial actions and proceedings unless the court orders otherwise.

(5)        Parties and non-parties should adhere to the Electronically Store Information ("ESI") Guidelines set forth in an Appendix to the Uniform Civil Rules

(6)        At the commencement of the trial or at such time as the court may direct, each party shall  identify in writing for the court the witnesses it intends to call, the order in which they shall testify and the estimated length of their testimony, and shall provide a copy of such witness list to opposing counsel. Counsel shall separately identify for the court only a list of the witnesses who may becalled solely for rebuttal or with regard to credibility. The court may permit for good cause shown and in the absence of substantial prejudice, a party to call a witness to testify who was not identified on the witness list submitted by that party. The estimates of the length of testimony and the order of witnesses provided by counsel are advisory only and the court may permit witnesses to be called in a different order and may permit further testimony from a witness notwithstanding that the time estimate for such witness has been exceeded.

(h)       Statement of Proposed Disposition.

(1)        Each party shall exchange a statement setting forth the following:

(i)         the assets claimed to be marital property;

(ii)        the assets claimed to be separate property;

(iii)       an allocation of debts or liabilities to specific marital or separate assets, where appropriate;

(iv)       the amount requested for maintenance, indicating and .elaborating upon the statutory factors forming the basis for the maintenance request;

(v)        the proposal for equitable distribution, where appropriate, indicating and elaborating upon the statutory factors forming the basis for the proposed distribution;

(vi)       the proposal for a distributive award, if requested, including a showing of the need for a distributive award;

(vii)      the proposed plan for child support, indicating and elaborating upon the statutory factors upon which the proposal is based; and

(viii)     the proposed plan for custody and visitation of any children involved in the proceeding, setting forth the reasons therefor.

(2)        A copy of any written agreement entered into by the parties relating to financial arrangements or custody or visitation shall be annexed-to the statement referred to in paragraph (1) of this subdivision.

(3)        The statement referred to in paragraph (1) of this subdivision, with proof of service upon the other party, shall, with the note of issue, be filed with the court. The other party, if he or she has not already done so, shall file with the court a statement complying with paragraph (1) of this subdivision within 20 days of such service.

(i)         Filing of Note of Issue.

No action or proceeding to which this section is applicable shall be deemed ready for trial unless there is compliance with this section by the party filing the note of issue and certificate of readiness.

j) Referral to Family Court.

In all actions or proceedings to which this section is applicable referred to the Family Court by the Supreme Court pursuant to section 464 of the Family Court Act, all statements, including supplemental statements, exchanged and filed by the parties pursuant to this section shall be transmitted _to the Family Court with the order of referral.

(k) Motions for Alimony, Maintenance, Counsel Fees Pendente Lite and Child support (other than under section 237(c) or 238 of the Domestic Relations Law).

Unless, on application made to the court, the requirements of this subdivision be waived for good cause shown, or unless otherwise expressly provided by any provision of the CPLR or other statute, the following requirements shall govern motions for alimony, maintenance, counsel fees (other than a motion made pursuant to section 237(c) or 238 of the Domestic Relations Law for counsel fees for services rendered by an attorney to secure the enforcement of a previously granted order or decree) or child support or any modification of an award thereof:

(1)        Such motion shall be made before or at the preliminary conference, if practicable.

(2)        No motion shall be heard unless the moving papers include a statement of net worth in the official form prescribed by subdivision (b) of this section.

(3)        No motion for counsel fees and expenses shall be heard unless the moving papers also include the affidavit of the movant's attorney stating the moneys, if any, received on account of such attorney's fee from the movant or any other person on behalf of the movant, the hourly amount charged by the attorney, the amounts paid, or to be paid, to counsel and any experts, and any additional costs, disbursements or expenses, and the moneys such attorney has been promised by, or the agreement made with, the movant or other persons on behalf of the movant, concerning or in payment of the fee. Fees and expenses of experts shall include appraisal, accounting, actuarial, investigative and other fees and expenses (including costs for processing of NYSCEF documents because of the inability of a self-represented party that desires to e-file to have computer access or afford internet accessibility) to enable a spouse to carry on or defend a matrimonial action or proceeding in the Supreme Court.

(4)        The party opposing any motion shall be deemed to have admitted, for the purpose of the motion but not otherwise, such facts set forth in the moving party's statement of net worth as are not controverted in:

(i)         a statement of net worth, in the official form prescribed by this section, completed and sworn to by the opposing party, and made a part of the answering papers; or

(ii)        other sworn statements or affidavits with respect to any fact which is not feasible to controvert in the opposing party's statement of net worth.

(5)        The failure to comply with the provisions of this subdivision shall be good cause, in the discretion of the judge presiding, either:

(i)         to draw an inference favorable to the adverse party with respect to any disputed fact or issue affected by such failure; or

(ii)        to deny the motion without prejudice to renewal upon compliance with the provisions of this section.

(6)        The notice of motion submitted with any motion for or related to interim maintenance or child support shall contain a notation indicating the nature of the motion. Any such motion shall be determined within 30 days after the motion is submitted for decision.

(7)        Upon any application for an award of counsel fees or fees and expenses of experts made prior to the conclusion of the trial of the action, the court shall set forth in specific detail, in writing or on the record, the factors it considered and the reasons for its decision.

(l)         Hearings or trials pertaining to temporary or permanent custody or visitation shall proceed from day to day conclusion. With respect to other issues before the court, to the extent feasible, trial should proceed from day to day to conclusion.

(m)      The court may, for good cause, relieve the parties and counsel from the requirements of 22 NYCRR §202.34 regarding pre-marking of exhibits and 22 NYCRR §202.20-h. regarding pre­ trial memoranda and Exhibit Books.

(n)       Upon request of a party, the court may permit direct testimony of that party's own witness in a non-jury trial or evidentiary hearing shall be submitted in affidavit form, provided, however, that the opposing party shall have the right to object to statements in the direct testimony affidavit, and the court shall rule on such objections, just as if the statements had been made orally in open court. Where an objection to a portion of a direct testimony affidavit is sustained, the court may direct that such portion be stricken. The submission of direct testimony in affidavit form shall not affect any right to conduct cross-examination or re-direct examination of the witness. Notwithstanding the foregoing, in an action for custody, visitation, contempt, order of protection or exclusive occupancy, however. except as provided in NYCRR §202.18, a party or a party's own witness may not testify on direct examination by affidavit.

\(O)  Omission or Redaction of Confidential Personal Information from Matrimonial Decisions.

(1) Except as otherwise provided by rule or law or court order, and whether or not a sealing order is or has been sought, prior to submitting any decision, order, judgment, or combined decision and order or judgment in a matrimonial action for publication, the court shall redact the following confidential personal information:

i. the taxpayer identification number of an individual or an entity, including a social security number, an employer identification number, and an individual taxpayer identification number, except the last four digits thereof;

ii. the actual home address of the parties to the matrimonial action and their children;

iii. the full name of an individual known to be a minor under the age of eighteen (18) years of age, except the minor's initials or the first name of the minor with the first initial of the minor’s last name; provided that nothing herein shall prevent the court from granting a request to use only the minor’s initials or only the word “Anonymous;”;

iv. the date of an individual’s birth (including the date of birth of minor children), except the year of birth;

v. the full name of either party where there are allegations of domestic violence, neglect, abuse, juvenile delinquency or mental health issues, except the party’s initials or the first name of the party with the first initial of the party’s last name; provided that nothing herein shall prevent the court from granting a request to use only the party’s initials or only the word “Anonymous;”; and

vi. a financial account number, including a credit and/or debit card number, a bank account number, an investment account number, and/or an insurance account number (including a health insurance account number), except the last four digits or letters thereof.

(2) Nothing herein shall require parties to omit or redact personal confidential information as described herein or 22NYCRR § 202.5(e) in papers submitted to the court for filing.

(3) Nothing herein shall prevent the court from omitting or redacting more personal confidential information than is required by this rule, either upon the request of a party or sua sponte.

Amended effective July 1, 2022

 

Section 202.16-b Submission of Written Applications in Contested Matrimonial Actions.

(1) Applicability. This section shall be applicable to all contested matrimonial actions and proceedings in Supreme Court authorized by subdivision (2) of Part B of section 236 of the Domestic Relations Law.

(2) Unless otherwise expressly provided by any provision of the CPLR or other statute, and in addition to the requirements of 22 NYCRR §202.16 (k) where applicable, the following rules and limitations are required for the submission of papers in all applications (including post judgment applications) for alimony, maintenance, counsel fees, child support, exclusive occupancy, custody and visitation unless said requirements are waived by the judge for good cause shown:

(i) Applications that are deemed an emergency must comply with 22 NYCRR§202.8 (e) and provide for notice, where applicable, in accordance with same. These emergency applications shall receive a preference by the clerk for processing and the court for signature. Designating an application as an emergency without good cause may be punishable by the issuance of sanctions pursuant to Part 130 of the Rules of the Chief Administrative Judge. Any application designated as an emergency without good cause shall be processed and considered in the ordinary course of local court procedures.

(ii) Where practicable, all orders to show cause, motions or cross-motions for relief should be made in one order to show cause or motion or cross-motion. The utilization of the requirement to move by order to show cause or notice of motion shall be governed by local part rule.

(iii) Length of Papers: Parties shall comply with the word limitations in subsections (a)-(f) of 22 NYCRR §202.8(b) as amended.

(iv) Form of Papers: Parties shall comply with the requirements of 22 NYCRR §202.5(a) as amended.

(v) Notwithstanding 22 NYCRR §202.5 -a, papers and correspondence may be transmitted to the court by fax by a self-represented party without prior court approval unless prohibited by a local part rule or judicial order.

(vi) Self-represented litigants may submit handwritten applications provided that the handwriting is legible and otherwise in conformity with all applicable rules

(vii) Except for affidavits of net worth (pursuant to 22 NYCRR §202.16 (b)), retainer agreements (pursuant to Rule 1400.3 of the Joint Rules of the Appellate Division), maintenance guidelines worksheets and/or child support worksheets, or counsel fee billing statements or affirmations or affidavits related to counsel fees (pursuant to Domestic Relations Law §237 and 22 NYCRR §202.16(k)), all of which may include attachments thereto, all exhibits annexed to any motion, cross motion, order to show cause, opposition or reply may not be greater than three (3) inches thick without prior permission of the court. All such exhibits must contain exhibit tabs.

Amended effective July 1, 2022

 

 

Appellate Division, Second Department

 

 

It is error as a matter of law to make an order respecting custody in a pendente lite context based on controverted allegations without having had the benefit of a full hearing

 

            In Chukwuemeka v Chukwuemeka, --- N.Y.S.3d ----, 2022 WL 2443815 (Mem), 2022 N.Y. Slip Op. 04287 (2d Dept.,2022) the parties were married in January 2017 and had one child, born in 2017. In August 2019, the plaintiff commenced the action for a divorce. Supreme Court, among other things, granted the plaintiff’s motion, in effect, for temporary primary residential custody of the parties’ child, without conducting a hearing. The Appellate Division reversed and remitted for an expedited hearing. It held that custody determinations should generally be made ‘only after a full and plenary hearing and inquiry. While the general right to a hearing in custody cases is not absolute, where facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required. Moreover, while temporary custody may generally be properly fixed without a hearing where sufficient facts are shown by uncontroverted affidavits, it is error as a matter of law to make an order respecting custody, even in a pendente lite context, based on controverted allegations without having had the benefit of a full hearing. The record demonstrated disputed factual issues so as to require a hearing on the plaintiff’s motion, in effect, for temporary primary residential custody of the child.

 

 

Failure to obtain a marriage license has no effect on the validity of the marriage

             

            In Joseph v Singh, --- N.Y.S.3d ----, 2022 WL 2335753 (Mem), 2022 N.Y. Slip Op. 04158 (2d Dept.,2022) an action for a divorce the Appellate Division rejected the defendants argument that the Supreme Court had no authority to enter a judgment of divorce, because the parties never entered into a valid marriage with each other. The evidence before the Supreme Court established that, on October 13, 1995, the parties took part in a Hindu wedding ceremony, conducted by a Hindu religious leader and attended by several guests. Despite the defendant’s assertion that the parties never intended to be married, the parties solemnly declared in the presence of a clergyman and at least one witness that they took each other as husband and wife and, thus, they entered into a valid marriage. Contrary to the defendant’s contention, the parties’ failure to obtain a marriage license had no effect on the validity of their marriage (see Domestic Relations Law § 25).

 

 

What qualifies as an “intimate relationship” within the meaning of FCA§ 812(1)(e)  is based upon consideration of the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship.

           

            In  Matter of Charter v Allen, --- N.Y.S.3d ----, 2022 WL 2335734, 2022 N.Y. Slip Op. 04167 (2d Dept.,2022) the petitioner commenced a family offense proceeding against her sister’s partner (respondent). Family Court dismissed the petition for lack of subject matter jurisdiction. The Appellate Division reversed. It pointed out that Family Court Act article 8 applies to persons who are or have been in an intimate relationship regardless of whether such persons have lived together at any time” (FCA. § 812[1][e]). Although Family Court Act § 812(1)(e) expressly excludes a “casual acquaintance” and “ordinary fraternization between two individuals in business or social contexts” from the definition of “intimate relationship,” “the legislature left it to the courts to determine on a case-by-case basis what qualifies as an intimate relationship within the meaning of Family Court Act § 812(1)(e) based upon consideration of factors such as ‘the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. The record demonstrated that the petitioner knew the respondent for more than 20 years, and the respondent and the petitioner’s sister held themselves out as husband and wife. During that period of time, the petitioner and the respondent engaged in general social activities at each other’s homes, attended holiday and birthday celebrations together, and traveled together. The petitioner’s sister and the respondent had a daughter together who identified the petitioner as her aunt. The petitioner resided in one of the units of a three-family home. The petitioner’s sister, the respondent, and their daughter, who was approximately 18 years old at the time of the hearing, resided in one of the other units of that three-family home. The home was owned by the mother of the petitioner and the petitioner’s sister. Under the circumstances, the Family Court should have denied the respondent’s application to dismiss the petition for lack of subject matter jurisdiction (see Family Ct Act § 812[1]).

 

 

Appellate Division, Third Department

 

 

Party seeking to modify a separation agreement that was incorporated, without merger, into a divorce decree after 2010 Amendments has the burden of establishing a substantial change in circumstances. Must be  “sound and substantial support in the record for imputation of income.

 

            In Yezzi v Small, --- N.Y.S.3d ----, 2022 WL 2346962, 2022 N.Y. Slip Op. 04198(3d Dept.,2022) Plaintiff ( father) and defendant (mother) were married in 1993 and had two children, born in 2004 and 2006. In 2012, the parties signed a separation agreement.  In 2014, the father commenced the action for divorce and Supreme Court issued a judgment of divorce that incorporated, but did not merge, the separation agreement. The mother moved for modification of the custody and child support arrangements. Following a hearing, the court issued an order imputing income to the father and, inter alia, ordering him to pay child support.

 

            The Appellate Division observed that the mother, as the party seeking to modify a separation agreement that was incorporated, without merger, into a divorce decree, bore the burden of establishing a substantial change in circumstances (see Domestic Relations Law § 236[B][9][b][2][i]). The separation agreement provided that, because the parties were entering into “a true 50/50 custodial arrangement” and the children’s needs were adequately being met in each household, there would be no child support payment but, instead, the parties would contribute to a joint checking account in proportion to their respective incomes to cover the children’s expenses each month, with the father contributing $520 and the mother contributing $780. The parties also indicated that the proportions of their respective contributions could be adjusted based upon changes in their incomes.  In 2018, the previous 50/50 custodial arrangement changed, as reflected in a stipulated order in which the parties agreed to a significant reduction in the father’s parenting time to only two days per week and one weekend per month for 10 months of the year. Further, the mother testified at the hearing that the father had not consistently contributed to the joint account, and she submitted an email from the father in which he stated that he would no longer make monthly contributions to the account because he did not deem them necessary. According to the mother, she now had to pay for many of the children’s expenses on her own and was unable to afford such things as braces and summer camp for the children, while the father continued to enjoy a lavish lifestyle. The Appellate Division found that the mother demonstrated a substantial change in circumstances to justify a modification of child support.

 

            Supreme Court calculated that the father’s total annual income was $170,014. It dismissed as not credible the father’s assertion that his income averaged only $9,162 per year, noting that the father had, by his own admission, received significant benefits from his farm business that he did not report as income. The court properly imputed income to the father in several categories. The court noted that personal expenses of the father had been paid by the business. The court added these expenses together and then conservatively attributed only two thirds of the total, or $34,309, as income to the father. The court also included in the father’s income $73,705, constituting the father’s draw from the business, and $12,000 as the value of rent that could have been received from his aunt’s apartment.  The Appellate Division held that to the extent that the father testified that some of the expenses were attributable to the business, the court was under no obligation to credit this aspect of his testimony, particularly given that the father had inconsistently reported his income on tax returns and various credit applications.         

           

            The Appellate Division held that Supreme Court’s determination to impute an additional $50,000 in income to the father based upon his earning potential as a result of having obtained a Juris Doctorate degree and a Master’s degree in public health was an abuse of discretion. There must be “sound and substantial support in the record for such imputation. According to the father’s testimony, he had never practiced law, and the last time he held a job that was directly related to his Master’s degree was in 2004. The record was devoid of any evidence providing a basis for Supreme Court’s finding that the father could earn $50,000 by entering the job market with these advanced degrees. Moreover, the father was not obligated to utilize his degrees when, as here, he was pursuing a plausible means of support by running his farm business, and there was no proof that the father could have used his degrees to earn $50,000 in additional income while simultaneously operating the farm, as the court’s order contemplated. The record  lacked a sufficient basis beyond mere speculation for imputing this income.

 

 

Dismissal of juvenile delinquency proceeding in the furtherance of justice is an extraordinary remedy that must be employed only in those rare cases where there is a compelling factor which clearly demonstrates that prosecution would be an injustice.

 

       In Matter of James JJ., 168 N.Y.S.3d 584, 2022 N.Y. Slip Op. 03555 (3d Dept.,2022) a juvenile delinquency proceeding the Appellate Division reversed an order which dismissed the proceeding in the furtherance of justice. It held that dismissal in the furtherance of justice is an extraordinary remedy that must be employed sparingly, that is, only in those rare cases where there is a compelling factor which clearly demonstrates that prosecution would be an injustice. In determining such a motion, the statutory factors which must be considered, individually and collectively, are as follows: “(a) the seriousness and circumstances of the crime; (b) the extent of harm caused by the crime; (c) any exceptionally serious misconduct of law enforcement personnel in the investigation and arrest of the respondent or in the presentment of the petition; (d) the history, character and condition of the respondent; (e) the needs and best interest of the respondent; (f) the need for protection of the community; and (g) any other relevant fact indicating that a finding would serve no useful purpose” (Family Court Act § 315.2[1]). At least one of these factors must be readily identifiable and sufficiently compelling to support the dismissal.  According to the sworn statement of the victim – the mother of respondent’s child on the date in question, respondent threw a full, eight-ounce baby bottle at the victim, which hit her in the face, when she asked him to feed the child, who was crying. The victim stated that, although she was bleeding heavily, respondent and his father discouraged her from seeking medical attention. When she eventually did go to the hospital the next day, a cut on her face was glued shut by a doctor and she was told to return for X rays after the swelling had abated. The victim indicated that she felt unsafe living with the child in the home of respondent and his father. In reaching its determination, Family Court placed emphasis on the fact that respondent was only charged with an act that would constitute a misdemeanor if committed by an adult. However, this was nevertheless a violent act, and the victim’s allegations reflected “a trend in which respondent’s propensity towards violence had escalated. The fact that the victim moved out of respondent’s home with the child on the date of the incident not only underscored the seriousness of respondent’s alleged conduct, but also belied Family Court’s finding that the victim was not in need of protection. Family Court’s dismissal of the petition in furtherance of justice was an improvident exercise of its discretion. The record did not support the court’s determination “that a finding of delinquency or continued proceedings would constitute or result in injustice” (Family Ct Act § 315.2[1]).

 

 

In a neglect proceeding, the imminent threat of danger to the children must be near or impending, not merely possible. It is  focused on the existence of  serious harm or potential harm to the children, not just on what might be deemed undesirable parental behavior

            In Matter of Hakeem, --- N.Y.S.3d ----, 2022 WL 2346960, 2022 N.Y. Slip Op. 04214 (3d Dept.,2022) the Appellate Division reversed a finding, that respondent neglected the children by excessively consuming alcohol in such a way that caused her to lose consciousness while the children were in her care. It pointed out that in a neglect proceeding, while actual injury or impairment is not necessary, the imminent threat of danger to the children must be near or impending, not merely possible.  Said differently, the inquiry is focused on the existence of  serious harm or potential harm to the children, not just on what might be deemed undesirable parental behavior. Respondent testified that she and the children were living in a private room in a homeless shelter in Schenectady at the time of the incident. After the children had gone to sleep, respondent went into the bathroom and began drinking a bottle of brandy while talking on the phone with a family member. According to respondent, the bathroom was accessible through a small vestibule next to her private room, and she had left the door partially open so she could see the children while they slept. At some point, respondent fell asleep while seated on the toilet in the bathroom. She was later awoken by shelter staff in the early morning hours, and staff contacted an ambulance to respond. The report from the ambulance service indicated that the responding ambulance crew encountered respondent in the bathroom and concluded that she was intoxicated. Respondent was transported to Ellis Hospital in Schenectady . The Appellate Division found that the record contained sufficient evidence establishing that respondent failed to exercise a minimum degree of care when she became intoxicated while the children were under her care and, in effect, left them unsupervised for a brief period. However, petitioner failed to establish that respondent’s ill-advised conduct placed the children at risk of anything beyond, “at most, possible harm”.  Respondent testified that her youngest children were in age-appropriate sleeping arrangements that presented no inherent danger resulting from respondent’s inebriated state. Although there was a period when the children were no longer supervised by respondent when she was taken to the hospital, the testimony revealed that shelter staff were watching the children until petitioner’s supervisor arrived and took custody of them, and there was  no indication that they were in any danger during this period of time . Finally, the record was devoid of any proof that the children were upset or suffered any emotional harm at any point during the incident. The record failed to provide any indication that the children were awake during the entirety of the period that respondent was drinking alcohol and the ensuing period when respondent was asleep in the bathroom across from their private room .While respondent’s conduct was far from ideal and it is possible to speculate about the various ways that events could have turned out differently for the children, petitioner failed to meet its burden to sufficiently put forth evidence establishing that the children were in imminent danger.

 

 

Party arguing that he was deprived on meaningful appellate review as a result of incomplete hearing transcript must identify the substance of this testimony, and demonstrate its importance or relevance to the issues raised on appeal.

 

            In Matter of Webster v Larbour, --- N.Y.S.3d ----, 2022 WL 2498951, 2022 N.Y. Slip Op. 04333 (3d Dept.,2022) a family offense proceeding the Appellate Division rejected the husband’s argument that he was deprived of the right to meaningful appellate review as a result of an incomplete hearing transcript. Although it appeared from the transcript and accompanying log that, due to an audio equipment malfunction in Family Court, a portion of the cross-examination and all of the redirect examination of the husband were not recorded, the husband’s full direct examination, including the testimony he gave concerning his theory as to the wife’s motivation for commencing the proceeding, was contained in the record for  review. As for the missing cross-examination and redirect examination, the husband did not identify the substance of this testimony, nor had he demonstrated its importance or relevance to the issues he now raised on appeal. As such, it found that the missing information was neither material to the determination nor of such significance as to preclude meaningful review.

 

 

A party challenging an acknowledgment of paternity more than 60 days after its execution must initially prove that it “was signed under fraud, duress, or due to a material mistake of fact.” Only after the petitioner meets this burden will the Family Court entertain further inquiry into whether that party should be equitably estopped.

 

            In Matter of Daniel FF., v. Alicia GG., --- N.Y.S.3d ----, 2022 WL 2500279, 2022 N.Y. Slip Op. 04342(3d Dept.,2022) Respondent (mother) gave birth to a child in 2017 while she was in a relationship with petitioner, who signed an acknowledgment of paternity less than two weeks after the child’s birth. They separated around April 2019. . In March 2021, petitioner commenced a proceeding to vacate the acknowledgment of paternity. Following a fact-finding hearing Family Court determined that it was in the child’s best interests to equitably estop petitioner from denying paternity and dismissed the petition. The Appellate Division affirmed on different grounds. Family Ct Act § 516–a (b) generally provides that a party seeking to challenge an acknowledgment of paternity more than 60 days after its execution must initially prove that it “was signed under fraud, duress, or due to a material mistake of fact” (Family Ct Act § 516–a [b][iv]). Only after the petitioner meets this burden will the Family Court entertain further inquiry into whether that party should be equitably estopped from challenging paternity. Petitioner commenced this proceeding well beyond the 60–day statutory deadline and, therefore, Family Court erred in prematurely considering the equitable estoppel defense. This error was academic as it found that petitioner failed to satisfy his initial burden of proof in challenging the voluntary paternity acknowledgment. He made no reference in the petition to the specific statutory ground upon which he sought vacatur. To the extent that petitioner’s claim of infidelity on the mother’s part could be construed as an allegation of a material mistake of fact or fraud, he failed to plead sufficient facts to warrant rescission of the paternity acknowledgment on either basis.

 

 

 

Appellate Division, Fourth Department

 

 

Supreme Court has the power to direct equitable distribution of the irrevocable choice of a survivor pension benefit made during the marriage.

 

In Ulrich v Ulrich, --- N.Y.S.3d ----, 2022 WL 2382909, 2022 N.Y. Slip Op. 04242 (4^th Dept.,2022) the parties were married in August 2004. By that time, defendant had been working as a state correction officer for 16 ½ years. In 2015, while the parties were still married, defendant retired, having accrued 27 ½ years of pension credit. At that time, defendant chose a “pop up” pension payment option that provided that either he or plaintiff would continue to receive a pension upon the other’s death but that, should plaintiff die first, defendant’s pension payment would at that time change to the single life allowance amount. Plaintiff commenced the divorce action in November 2019. The Appellate Division held that Supreme Court did not abuse its discretion with respect to the equitable distribution of defendant’s pension benefit. It held that the court has the power to direct equitable distribution of the irrevocable choice of a survivor pension benefit made during the marriage. It affirmed the judgment which confirmed the report of the Referee, who properly set forth the relevant statutory factors that she considered and the reasons for her decision with respect to the pension benefit, The record reflected that plaintiff made significant contributions to the parties’ marriage to the extent that she cared for their shared home and both of their children from prior marriages.

 

 

In custody proceeding by a non-parent the extraordinary circumstances analysis must consider the cumulative effect of all issues present in a given case and not view each factor in isolation

 

            In Matter of Byler v Byler, --- N.Y.S.3d ----, 2022 WL 2382450, 2022 N.Y. Slip Op. 04253 (4^th Dept., 2022) the Appellate Division affirmed an order which awarded respondent paternal aunt sole custody of the children upon finding that children’s aunt established extraordinary circumstances and that it was in the best interests of the children to remain in the care of the aunt. It rejected the mother’s assertion that the court improperly relied upon the approximately five-year separation between the mother and the children. The child may be so long in the custody of the nonparent’ that separation from the natural parent amounts to an extraordinary circumstance, especially when ‘the psychological trauma of removal is grave enough to threaten destruction of the child. Conversely, when “the separation between the natural parent and child is not in any way attributable to a lack of interest or concern for the parental role, that separation does not amount to an extraordinary circumstance and, deserves little significance. Here, while the mother characterized her filing of more than 85 petitions as legitimate attempts to regain custody of the children during the approximately five years that they were living with the aunt, the court found that the mother’s numerous petitions, constituted abusive and harassing litigation that unfairly burdened the aunt by requiring her to appear to avoid default, thereby justifying its imposition of judicial screening for any future petitions. The mother’s numerous petitions were appropriately viewed as abusive and vexatious litigation rather than serious attempts to regain custody or resume a parental role in the children’s lives. It noted that the extraordinary circumstances analysis must consider the cumulative effect of all issues present in a given case and not view each factor in isolation. It concluded that the aunt met her burden of establishing that extraordinary circumstances existed based upon the cumulative effect of, among other things, the mother’s voluntary relinquishment of physical custody of the children, the subsequent protracted separation between the mother and the children, the psychological bonding of the children to the aunt and potential harm to the children if removed from the aunt’s custody, the mother’s failure to adequately address her ongoing mental health issues and, importantly, the series of incidents in which the mother engaged in erratic, unstable, threatening, and psychologically abusive behavior and communication directed at the children that justifiably rendered the children fearful of the mother

 

            The credible evidence that the mother’s prior in-person supervised visitation was   already discontinued, coupled with the mother’s erratic and threatening behaviors, including repeatedly appearing uninvited at the aunt’s house while approaching or communicating with the children in a manner that caused them genuine fear, provided a sound and substantial basis supporting the court’s determination to limit the mother’s visitation to weekly supervised video or electronic communication only.

 

 

Where Plaintiff testified concerning her diagnosis of multiple sclerosis and its debilitating effects, and submitted voluminous medical records corroborating her testimony and defendant never disputed plaintiff’s diagnosis and medical condition, plaintiff was not required to call an expert medical witness at trial to establish her inability to work.

 

            In Anastasi v Anastasi, --- N.Y.S.3d ----, 2022 WL 2582269, 2022 N.Y. Slip Op. 04452 (4^th Dept, 2022) the Appellate Division held that where, as here, the trial court gave appropriate consideration to the factors enumerated in Domestic Relations Law § 236 (B) (former [6] [a]), the Court will not disturb the determination of maintenance absent an abuse of discretion. It found that the record supported the court’s determination that plaintiff was “ ‘unable to work to support herself financially,’ now or at any point in the future. Plaintiff testified concerning her diagnosis of multiple sclerosis and its debilitating effects, and submitted voluminous medical records corroborating her testimony. Under the circumstances, and considering that defendant never disputed plaintiff’s diagnosis and medical condition, plaintiff was not required to call an expert medical witness at trial to establish her inability to work. The court considered the relevant factors in Domestic Relations Law § 236 (B) (former [6] [a]) in determining the amount and duration of maintenance considering plaintiff’s reasonable needs and predivorce standard of living in the context of the other enumerated statutory factors’. It noted that plaintiff had not worked outside the home since 1998 and that the parties enjoyed a lifestyle commensurate with a substantial income during the marriage.

 

 

Res judicata  does not require dismissal of complaint to set aside agreement where the issues in this action were not identical to those raised by plaintiff in her prior motion and, plaintiff could have pursued her current claims in the 2018 motion; plaintiff could not have pursued her claims in the prior motion since a plenary action is required to set aside a settlement agreement

 

            In Nagi v Ahmed, --- N.Y.S.3d ----, 2022 WL 2582390, 2022 N.Y. Slip Op. 04461(4^th Dept., 2022) the Plaintiff commenced an  action seeking to vacate in part an amended judgment of divorce entered in 2018 and to set aside the parties’ property settlement agreement), which was incorporated but not merged into the amended judgment of divorce. The complaint alleged, among other things, that plaintiff signed the agreement due to “extraordinary duress and pressure” exerted on her by defendant, among other people, and that the terms of the agreement are so favorable to defendant as to render it unconscionable and thus unenforceable. Supreme Court granted defendants cross-motion for summary judgment on his affirmative defenses. It dismissed the complaint on the grounds of collateral estoppel and ratification concluding that plaintiff was collaterally estopped from challenging the agreement because she sought similar relief by way of a motion she filed in July 2018 seeking to modify certain provisions of the agreement and to enforce others. It held that Collateral estoppel applies when (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits.

 

            The Appellate Division found that the motion that plaintiff filed in July 2018 did not seek to vacate the amended judgment of divorce or to set aside the agreement. The issues in this action were not identical to those raised by plaintiff in her motion, and defendant thus failed to meet his initial burden on his cross motion of establishing that collateral estoppel precludes plaintiff from challenging the agreement.

 

            It rejected defendants argument that this action was barred by res judicata because plaintiff could have pursued her current claims in the 2018 motion. A party seeking to set aside a settlement agreement must do so in a plenary action. Such relief cannot be obtained on motion. Moreover, although plaintiff did commence a plenary action in August 2018 to set aside the agreement on grounds of fraud, duress, and overreaching, she abandoned that action, and a final judgment was never entered on it. The doctrine of res judicata requires, among other things, “a valid final judgment” on a prior action between the parties which was lacking here. There never had been a determination on the merits of plaintiff’s claims that she signed the agreement under duress and that the agreement is unconscionable.

 

            The Appellate Division rejected defendant’s contention that the court properly granted the cross motion because plaintiff ratified the agreement by acquiescing in it and receiving the benefits under it for a considerable period of time. A divorce settlement tainted by duress is void ab initio, not merely voidable, and is, therefore, not subject to ratification by the mere passage of time. It noted that plaintiff received only meager benefits under the agreement, which awarded sole custody of the parties’ children to defendant and awarded no maintenance to plaintiff despite a long-term marriage. Although plaintiff was not obligated to pay child support under the agreement, she was unemployed at the time of the divorce action, and thus her child support obligation would have been minimal. In return for her share of two family businesses and the marital residence, which was valued at $149,000 with no encumbrances, plaintiff received a lump sum payment of $15,000. The only other asset received by plaintiff through equitable distribution was a seven-year-old used motor vehicle.

 

 

A court cannot issue a QDRO encompassing rights not provided in the underlying stipulation, or one that is more expansive than the stipulation

 

          In Gay v Gay, --- N.Y.S.3d ----, 2022 WL 2586496, 2022 N.Y. Slip Op. 04480(4^th Dept., 2022) a postjudgment matrimonial proceeding, plaintiff appealed from a qualified domestic relations order (QDRO) that directed the New York State and Local Police and Fire Retirement System to pay defendant her marital share of plaintiff’s pension pursuant to the Majauskas formula. The Appellate Division agreed with Plaintiff that Supreme Court erred by deviating from the terms of the parties’ oral stipulation, which was incorporated but not merged into the judgment of divorce, because the stipulation provided that the numerator of the Majauskas formula would be 253 months for plaintiff’s police service during the marriage, but the court nonetheless added 36 months attributable to plaintiff’s purchase of three additional years of credit for military service. A proper QDRO obtained pursuant to a stipulation of settlement can convey only those rights to which the parties stipulated as a basis for the judgment. An alternative result would undermine litigants’ freedom of contract by allowing QDROs to create new rights, or litigants to generate new claims, unexpressed in the settlement stipulation. Thus, a court cannot issue a QDRO encompassing rights not provided in the underlying stipulation, or one that is more expansive than the stipulation. It found that  the stipulation unambiguously contemplated including no more than plaintiff’s police service credit during the marriage as the numerator of the Majauskas formula and did not contemplate the inclusion of any additional service credits. The stipulation clearly referred to the numerator as consisting exclusively of plaintiff’s 21 years and 1 month of police service during the marriage, which amounted to 253 months.

 

 

June 29, 2022

United States Supreme Court

 

[Italy][Petition granted][Ameliorative measures] [Vacated and remanded]

 

In Golan v. Saada, ___U.S.___,  (Supreme Court, June 15, 2022) Petitioner Narkis Golan was a citizen of the United States. She met respondent Isacco Saada, an Italian citizen, while attending a wedding in Milan, Italy, in 2014. Golan soon moved to Milan, and the two wed in August 2015. Their son, B. A. S., was born the next summer in Milan, where the family lived for the first two years of B. A. S.’ life.  The two fought on an almost daily basis and, during their arguments, Saada would sometimes push, slap, and grab Golan and pull her hair. Saada also yelled and swore at Golan and frequently insulted her and called her names, often in front of other people. Saada once told Golan’s family that he would kill her. Much of Saada’s abuse of Golan occurred in front of his son. In July 2018, Golan flew with B. A. S. to the United States to attend her brother’s wedding. Rather than return as scheduled in August, however, Golan moved into a domestic violence shelter with B. A. S. In September, Saada filed in Italy a criminal complaint for kidnapping and initiated a civil proceeding seeking sole custody of B. A. S.

         Saada also filed a petition under the Convention and ICARA in the U. S. District Court for the Eastern District of New York, seeking an order for B. A. S.’ return to Italy. The District Court granted Saada’s petition after a 9-day bench trial. As a threshold matter, the court determined that Italy was B. A. S.’ habitual residence and that Golan had wrongfully retained B. A. S. in the United States in violation of Saada’s rights of custody. The court concluded, however, that returning B. A. S. to Italy would expose him to a grave risk of harm. The court observed that there was “no dispute” that Saada was “violent—physically, psychologically, emotionally, and verbally—to” Golan and that “B. A. S. was present for much of it.” The court described some of the incidents B. A. S. had witnessed as “chilling.”  While B. A. S. was not “the target of violence,” undisputed expert testimony established that “domestic violence disrupts a child’s cognitive and social-emotional development, and affects the structure and organization of the child’s brain.”  Records indicated that Italian social services, who had been involved with the couple while they lived in Italy, had also concluded that “ ‘the family situation entails a developmental danger’ for B. A. S.”  The court found that Saada had demonstrated no “capacity to change his behavior,” explaining that Saada “minimized or tried to excuse  his violent conduct” during his testimony and that Saada’s “own expert said . . . that [Saada] could not control his anger or take responsibility for his behavior.” 

         The court nonetheless ordered B. A. S.’ return to Italy based on Second Circuit precedent obligating it to “ ‘examine the full range of options that might make possible the safe return of a child to the home country’ ” before it could “ ‘deny repatriation on the ground that a grave risk of harm exists.’ ”  The Second Circuit based this rule on its view that the Convention requires return “if at all possible.” Blondin I, 189 F. 3d, at 248. To comply with these precedents, the District Court had required the parties to propose “ ‘ameliorative measures’ ” that could enable B. A. S.’ safe return. Saada had proposed that he would provide Golan with $30,000 for expenses pending a decision in Italian courts as to financial support, stay away from Golan until the custody dispute was resolved, pursue dismissal of the criminal charges he had filed against Golan, begin cognitive behavioral therapy, and waive any right to legal fees or expenses under the Convention. The court concluded that these measures, combined with the fact that Saada and Golan would be living separately, would “reduce the occasions for violence,” thereby ameliorating the grave risk to B. A. S. sufficiently to require his return. 

The Second Circuit vacated the return order, finding the District Court’s ameliorative measures  insufficient. Because the record did not support concluding that no sufficient ameliorative measures existed, the Second Circuit remanded for the District Court to consider whether such measures, in fact, existed. After an examination over nine months, the District Court identified new ameliorative measures and again ordered B. A. S.’ return. The Second Circuit affirmed.

The Supreme Court, in a unanimous opinion by Justice Sotomayor held that a court is not categorically required to examine all possible ameliorative measures before denying a Hague Convention petition for return of a child to a foreign country once the court has found that return would expose the child to a grave risk of harm. The discretion to courts under the Convention and ICARA includes the discretion to determine whether to consider ameliorative measures that could ensure the child’s safe return. Justice Sotomayor found that the Second Circuit’s rule, by instructing district courts to order return “if at all possible,” improperly elevated return above the Convention’s other objectives. Blondin I, 189 F. 3d, at 248. The Convention does not pursue return exclusively or at all costs. Rather, the Convention “is designed to protect the interests of children and their parents,” Lozano, 572 U. S., at 19 (Alito, J., concurring), and children’s interests may point against return in some circumstances. Courts must remain conscious of this purpose, as well as the Convention’s other objectives and requirements, which constrain courts’ discretion to consider ameliorative measures in at least three ways. 

First, any consideration of ameliorative measures must prioritize the child’s physical and psychological safety. A court may decline to consider imposing ameliorative measures where it is clear that they would not work because the risk is so grave. Sexual abuse of a child is one  example of an intolerable situation. Other physical or psychological abuse, serious neglect, and domestic violence in the home may also constitute an obvious grave risk to the child’s safety that could not readily be ameliorated. A court may also decline to consider imposing ameliorative measures where it reasonably expects that they will not be followed.

Second, consideration of ameliorative measures should abide by the Convention’s requirement that courts addressing return petitions do not usurp the role of the court that will adjudicate the underlying custody dispute. A court ordering ameliorative measures in making a return determination should limit those measures in time and scope to conditions that would permit safe return, without purporting to decide subsequent custody matters or weighing in on permanent arrangements.

 

Third, any consideration of ameliorative measures must accord with the Convention’s requirement that courts act expeditiously in proceedings for the return of children. Timely resolution of return petitions is important in part because return is a “provisional” remedy to enable final custody determinations to proceed.  A requirement to “examine the full range of options that might make possible the safe return of a child,” is in tension with this focus on expeditious resolution. Consideration of ameliorative measures should not cause undue delay in resolution of return petitions.

         Justice Sotomayor summarized the Courts holding as follows: “ …although nothing in the Convention prohibits a district court from considering ameliorative measures, and such consideration often may be appropriate, a district court reasonably may decline to consider ameliorative measures that have not been raised by the parties, are unworkable, draw the court into determinations properly resolved in custodial proceedings, or risk overly prolonging return proceedings. The court may also find the grave risk so unequivocal, or the potential harm so severe, that ameliorative measures would be inappropriate. Ultimately, a district court must exercise its discretion to consider ameliorative measures in a manner consistent with its general obligation to address the parties’ substantive arguments and its specific obligations under the Convention. A district court’s compliance with these requirements is subject to review under an ordinary abuse-of-discretion standard.”

In this case, the District Court made a finding of grave risk, but never had the opportunity to inquire whether to order or deny return under the correct legal standard. It was appropriate to allow the District Court to apply the proper legal standard in the first instance, see Monasky v. Taglieri, 589 U. S. ___, ___. The Court held that the District Court should determine whether the measures considered are adequate to order return in light of the District Court’s factual findings concerning the risk to B. A. S., bearing in mind that the Convention sets as a primary goal the safety of the child. The order of the Second Circuit was vacated and the case remanded.

 

Court of Appeals

 

Authenticated Screen Shots Properly Admitted into Evidence. Proper foundation may be established through testimony that the screen shot accurately represents the subject matter depicted.

In People v Rodriguez, 2022 NY Slip Op 03307 (2022) the  charges against defendant  included sending numerous text messages containing sexual content to the 15-year-old victim, a player on his volleyball team. Text messages that defendant sent to the victim came to light when the victim's 16-year-old boyfriend observed them on her phone, took screenshots of messages that were sexual in nature, and forwarded the screenshots to the victim's mother and himself. The Court of Appeals held that the trial court acted within its discretion in determining that the People properly authenticated the screenshots.  It observed that technologically generated documentation is ordinarily admissible under standard evidentiary rubrics and this type of ruling may be disturbed by this Court only when no legal foundation has been proffered or when an abuse of discretion as a matter of law is demonstrated.  The Court noted that it had recently held that for digital photographs, like traditional photographs, "the proper foundation [may] be established through testimony that the photograph accurately represents the subject matter depicted" (People v Price, 29 N.Y.3d 472, 477 [2017] It  reiterated that "[r]arely is it required that the identity and accuracy of a photograph be proved by the photographer" which would be the boyfriend here. Rather, "any person having the requisite knowledge of the facts may verify" the photograph "or an expert may testify that the photograph has not been altered." Here, the testimony of the victim, a participant in and witness to the conversations with defendant, sufficed to authenticate the screenshots. She testified that all of the screenshots offered by the People fairly and accurately represented text messages sent to and from defendant's phone. The boyfriend also identified the screenshots as the same ones he took from the victim's phone on November 7. Telephone records of the call detail information for defendant's subscriber number corroborated that defendant sent the victim numerous text messages during the relevant time period. Under these circumstances, there was no abuse of discretion as a matter of law in the court's determination that the screenshots of the texts messages were sufficiently authenticated or in admission of the screenshots into evidence.

 

 

Appellate Division, First Departent

 

 

No increase in pendente lite child support award was warranted Where Defendant failed to establish that the pendente lite child support award was insufficient

 

            In Anonymous v Anonymous,--- N.Y.S.3d ----, 2022 WL 2308862 (Mem), 2022 N.Y. Slip Op. 04114 (1^st Dept.,2022) the Appellate Division affirmed an order that awarded pendente lite child support. It held that no increase was warranted as Defendant failed to establish that the pendente lite child support award was insufficient. She argued that the award was inadequate in light of plaintiff’s wealth, but not that it was insufficient to meet the child’s actual needs or to support a lifestyle appropriate for the child (see DeNiro v. DeNiro, 185 AD3d 465 [1st Dept 2020]; Sykes v. Sykes, 43 Misc.3d 1220[A], 2014 N.Y. Slip Op 50731[U], *22 [Sup Ct, N.Y. County 2014] ).

 

 

A single instance of domestic violence may be a proper basis for a finding of neglect.       

 

            In Matter of Esther N., --- N.Y.S.3d ----, 2022 WL 2308871, 2022 N.Y. Slip Op. 04126 (1^st Dept.,2022) the Appellate Division affirmed a finding that respondent father neglected the four subject children. The findings of neglect were supported by a preponderance of the evidence that the father committed acts of domestic violence in the presence of two of the children and while the other two children were in the apartment (see Family Ct Act §§ 1012[f][i][B]; 1046[b][i]) The credited testimony of the mother and the caseworker at the fact-finding hearing demonstrated that the father punched the mother with a closed fist while he was arguing with her about the family’s expenses in the living room where two of the children were present, and then continued fighting with her behind a closed bedroom door, leading the children to ask him to stop and to summon the police. The two children’s out-of-court statements that after they saw the father punch the mother with a closed fist, the eldest daughter summoned the police to stop the altercation as testified to by the caseworker was supported by the mother’s testimony about the incident. A single instance of domestic violence may be a proper basis for a finding of neglect. The record, including the mother’s testimony that those children told her that they summoned the police because they were scared of what he was going to do to her, supported the finding that the two older children were in danger of or were emotionally impaired by the domestic violence that he inflicted upon the mother while they were present. The two younger children, who were in their own bedroom when the incident occurred, were in imminent danger of physical impairment due to their proximity to the violence directed at the mother even in the absence of evidence that they were aware of the incident or emotionally affected by it

 

 

Support Magistrate’s determination that respondent’s failure to pay child support as ordered was not willful affirmed where it rested largely on his credibility findings, to which great deference is owed

 

            In Matter of Laura R., v. Christopher B., --- N.Y.S.3d ----, 2022 WL 2164235, 2022 N.Y. Slip Op. 03978 (1^st Dept.,2022) the Appellate Division affirmed an order that, inter alia,  determined that respondent father’s failure to pay child support was not willful. It held that the Support Magistrate’s determination that respondent’s failure to pay child support as ordered was not willful rested largely on his credibility findings, to which great deference is owed. The Support Magistrate found that respondent testified credibly that he could not have sought regular employment because of his parenting responsibilities. The parties’ three children lived with him full time during most or all of the relevant period. Before the COVID–19 pandemic started, he shuttled them between home in New Jersey and school in New York City, and after the pandemic started he supervised the children, who all had Individual Education Programs, in their remote learning at home. He spent the summer of 2020 with them, taking them to baseball practice and games. Petitioner had shown no reason to disturb the Magistrate’s findings that this testimony was credible. Petitioner’s reliance on cases in which a party could have sought employment but did not do so was therefore misplaced.

 

 

Finding of Neglect due to the mother’s long-standing history of mental illness and resistance to treatment, notwithstanding the absence of a definitive diagnosis       

 

            In Matter of Siri V. --- N.Y.S.3d ----, 2022 WL 2163064 (Mem), 2022 N.Y. Slip Op. 03982 (1^st Dept.,2022) the Appellate Division found that a preponderance of the evidence supported Family Court’s finding that the children’s physical, mental, or emotional condition was in imminent danger of becoming impaired as a result of the mother’s long-standing history of mental illness and resistance to treatment, notwithstanding the absence of a definitive diagnosis The finding of neglect was supported by the hospital records concerning the mother’s disturbing behavior with her newborn daughter, which indicated that the mother continued to suffer from the mental health issues that had resulted in a previous finding of neglect in 2016  Indeed, after the neglect finding in 2016, the mother’s two oldest children were removed from her care after she failed to seek mental health treatment and take her prescribed medication as ordered by Family Court, and the 2016 finding was not too remote in time from this proceeding to support a reasonable conclusion that the condition still existed.

 

 

Appellate Division, Second Department

 

 

The hearing court must state in its decision the facts it deems essential’ to its determination (CPLR 4213[b]). Custody order reversed where  Family Court did not identify the facts adduced at the hearing that supported its denial of the mother’s custody modification petition and Appellate Division made its own findings.

 

            In Smith v Francis, --- N.Y.S.3d ----, 2022 WL 2232129, 2022 N.Y. Slip Op. 04026 (2d Dept.,2022) the Appellate Division reversed an order of the Family Court made after a hearing which denied the mothers petition to modify a 2018 custody order to award her residential custody of the child. After the  court conducted a hearing it  concluded that the mother had failed to prove that there had been a change in circumstances warranting a modification of the existing custody arrangement. The Appellate Division found it lacked a sound and substantial basis in the record. It pointed out that to facilitate effective appellate review, the hearing court “must state in its decision ‘the facts it deems essential’ to its determination” (CPLR 4213[b]). Here, the Family Court did not identify the facts adduced at the hearing that supported its denial of the mother’s petition. The evidence at the hearing showed that, on numerous occasions after the issuance of the 2018 custody order, the father, in the child’s presence, denigrated the mother and behaved inappropriately toward her. He consistently failed to make the child available for telephone and video calls with the mother as required by the original custody order, routinely ignored the mother’s attempted communications with the child, and repeatedly failed to adhere to the court-ordered parental access schedule. The father not only refused to foster a good relationship between the mother and the child, he expressly testified that he did not believe he had an obligation to do so, but actively sought to thwart such a relationship. Parental alienation of a child from the other parent is an act so inconsistent with the best interests of the child as to, per se, raise a strong probability that the offending party is unfit to act as custodial parent. In addition, during the period following the issuance of the custody order, the father demonstrated a lack of interest in the child’s education and development by, among other things, refusing to have the child evaluated for learning disabilities or treated for his speech impediment. Moreover, the father failed to respond to the mother’s inquiries about the child’s health, education, and safety.

 

 

Pendente lite awards affirmed where defendant failed to establish the existence of any exigent circumstances warranting a modification of these awards, and any perceived inequity could best be remedied by a speedy trial

 

            In Safir v Safir, --- N.Y.S.3d ----, 2022 WL 2136811, 2022 N.Y. Slip Op. 03917(2d Dept.,2022) the parties were married in August 2003 and had four children together. In or about July 2020, the plaintiff commenced this action for a divorce. The plaintiff moved for an award of pendente lite relief, including, among other things, sole physical custody of the parties’ children. The defendant cross-moved for pendente lite relief, including, among other things, sole physical custody of the children and to direct the plaintiff to pay an equal share of all household expenses. Supreme Court denied those branches of the  motions which sought temporary custody of the children. However, for the purpose of pendente lite child support, the court determined that the plaintiff was the “de facto” custodial parent of the children because, inter alia, the children were residing with the plaintiff in the marital residence at the time, while the defendant was residing elsewhere. Thus, the court concluded that the defendant was obligated to pay pendente lite child support to the plaintiff, and awarded the plaintiff $6,000 per month for pendente lite child support. Based upon the parties’ lifestyle during the marriage, the cost of maintaining the marital residence, the plaintiff’s absence from the work force, and the defendant’s payment of all marital expenses during the marriage, the court directed the defendant to maintain the status quo by continuing to pay, pendente lite, 100% of the carrying charges for the marital residence, including the costs of the real estate taxes, homeowner’s insurance, homeowner’s association dues, and repairs associated with that property; 100% of the carrying charges, maintenance costs, and other expenses attributable to the Florida property; and 74% of the cost of employing two housekeepers. In doing so, the court, in effect, imputed income to the defendant, finding that he had voluntarily reduced his income by moving to a part-time employment schedule shortly before the commencement of the action, and utilized the plaintiff’s base salary as her annual gross income. The court also directed the parties to pay, pendente lite, their pro rata share of the costs of the summer camp, education, tutoring, and extracurricular activities for the children, and directed the parties to pay their pro rata share of the cost of tennis lessons for the children, if the parties agreed to continue such lessons. If the parties could not agree on whether to continue tennis lessons for the children, or the form thereof, the court directed that “either party may choose to pay 100% of the cost of the type of tennis lesson they prefer.” The court further determined that the defendant was “undoubtedly the monied spouse,” given that his “reduced, part-time income is more than twice the Plaintiff’s current salary,” and that he had “access to substantial amounts of separate assets.” As a result, the court directed the defendant to pay interim counsel fees for the plaintiff of $30,000.

 

            The Appellate Division affirmed. It pointed out that modifications of pendente lite awards should rarely be made by an appellate court and then only under exigent circumstances, such as where a party is unable to meet his or her financial obligations, or justice otherwise requires. It held that the Supreme Court did not improvidently exercise its discretion in directing the pendente lite awards. The court providently, in effect, imputed income to him and determined the plaintiff’s income, at that point in time, based solely upon her base salary. The defendant failed to establish the existence of any exigent circumstances warranting a modification of these awards, and any perceived inequity could best be remedied by a speedy trial, at which the parties’ financial circumstances could be fully explored For the same reason, the court properly denied the defendant’s cross motion.

 

 

Error to deny without a hearing, the mother’s motion to modify custody where, among other things,  she alleged that although the plaintiff had been awarded residential custody, the parties and the children had continued to live together as a family in the marital home for nearly four years and that she had been the children’s primary caregiver

 

            In O’Mahoney v. O’Mahoney, --- N.Y.S.3d ----, 2022 WL 2136807, 2022 N.Y. Slip Op. 03901(2d Dept.,2022) the plaintiff and the defendant were married in 2004. The parties’ children were born in 2011. The parties were divorced by a judgment dated May 4, 2016. Pursuant to the judgment of divorce, the parties were awarded joint legal custody of the children, the plaintiff was awarded residential custody, with parental access to the defendant, and the defendant was to pay child support. . In September 2020, the defendant moved, inter alia, to modify the custody provisions of the judgment of divorce. Supreme Court denied the defendant’s motion. The Appellate Division held that the Supreme Court erred in denying, without a hearing, the defendant’s motion to modify the custody provisions in the judgment of divorce. The defendant alleged that although the plaintiff had been awarded residential custody, the parties and the children had continued to live together as a family in the marital home for nearly four years after the divorce and that the defendant had been the children’s primary caregiver. The defendant also provided evidence that the plaintiff had interfered with her right to joint legal custody of the children and her “reasonable rights of visitation” as provided for in the judgment of divorce. Finally, the plaintiff and the defendant raised specific, contested allegations as to the other’s fitness to serve as the custodial parent. Accordingly, the defendant made an evidentiary showing of changed circumstances requiring a change of custody to ensure the best interests of the children, and a hearing was necessary to determine whether the custody provisions in the judgment of divorce should be modified. It remitted the matter to the Supreme Court for the appointment of an attorney for the children, a hearing and a new determination.

 

 

Motion to vacate  default granted where the Family Court, granted the father’s oral application and modified the order of custody and visitation to grant relief which far exceeded that requested in his petition, without first receiving any testimony or other admissible evidence upon which it could determine whether modification was required

 

            In Matter of Hogan v Smith,  --- N.Y.S.3d ----, 2022 WL 2136773 (Mem), 2022 N.Y. Slip Op. 03894 (2d Dept., 2022) the Appellate Division reversed an order which denied the mother’s motion to vacate the final order of custody and visitation which was granted upon her default. It found that upon the conclusion of the proceedings on May 6, 2021, the Family Court, inter alia, granted the father’s oral application and modified the order of custody and visitation dated October 6, 2020, so as to grant the father relief which far exceeded that requested in his petition, without first receiving any testimony or other admissible evidence in the matter upon which it could determine whether modification was required to protect the best interests of the children. Under these circumstances, and in light of the policy favoring resolutions on the merits in child custody proceedings, the court improvidently exercised its discretion in denying the mother’s motion to vacate the final order of custody and visitation. It reversed the order, granted the mother’s motion and remitted the matter to the Family Court for further proceedings on the father’s petition.

 

 

Support Magistrate’s failure to explain in the order of disposition the reasoning for her determination to deny the mother’s request for a purge payment or weekend incarceration did not constitute a violation of Family Court Act § 454(4).

 

            In Matter of Santman v. Schoenfeldt,--- N.Y.S.3d ----, 2022 WL 2136768 (Mem), 2022 N.Y. Slip Op. 03897 (2d Dept.,2022) the Support Magistrate found that the father’s failure to pay child support was willful, directed the father to pay the mother child support arrears of $20,204 at a rate of $250 per month, and denied the mother’s request to commit the father for a period of incarceration unless he paid a purge amount. The Appellate Division held, inter alia, that contrary to the mother’s contention, the Support Magistrate’s failure to explain in the order of disposition the reasoning for her determination to deny the mother’s request for a purge payment or weekend incarceration did not constitute a violation of Family Court Act § 454(4). The Support Magistrate complied with the statute by setting forth the facts upon which the determination was based. Any purported failure to specifically address the mother’s requests does not amount to a statutory violation requiring remand for further proceedings.

 

 

Imputation of income to the father based upon the free housing and use of vehicles he received was not supported by the record, where the Support Magistrate conducted her own research to estimate the value of the father’s housing and adopted the mother’s unsubstantiated estimate of the value of the father’s vehicle use.      

 

            In Matter of Sorscher v. Auerbach --- N.Y.S.3d ----, 2022 WL 2136784, 2022 N.Y. Slip Op. 03898 --- N.Y.S.3d ----, 2022 WL 2136784, 2022 N.Y. Slip Op. 03898 (2d Dept.,2022) the Appellate Division pointed out that while a Support Magistrate is afforded considerable discretion in determining whether to impute income to a parent, a determination to impute income will be rejected where the amount imputed was not supported by the record, or the imputation was an improvident exercise of discretion. Here, as the Family Court determined, the Support Magistrate’s imputation of income to the father based upon the free housing and use of vehicles he received was not supported by the record, as the Support Magistrate set forth in her findings of fact that she conducted her own research to estimate the value of the father’s housing and adopted the mother’s unsubstantiated estimate of the value of the father’s vehicle use. Although it agreed with the Support Magistrate’s initial determination to impute an income to the father based upon his housing and vehicle use, the Family Court should have remitted the matter to the Support Magistrate to determine the appropriate value, if any, to be imputed to the father for his free housing and vehicle use. It remitted the matter to the Family Court for a hearing to be conducted concerning the limited issue of whether a value can be ascertained for the father’s free housing and vehicle use, and a new determination, if necessary, of the father’s income.

 

June 15, 2022

 

Appellate Division, Second Department

 

Relocation to Georgia permitted mother who was the primary caregiver where the father was not involved in the child’s day-to-day life, education, or healthcare, and kept in contact with the child more through phone and FaceTime calls, rather than in-person visits.

 

            In Matter of Thomas v Mobley, --- N.Y.S.3d ----, 2022 WL 2057827, 2022 N.Y. Slip Op. 03731 (2d Dept.,2022) the parties had one child together, who was born in July 2008. In an order dated April 30, 2015 which was entered upon the agreement of the parties, the parties were awarded joint legal custody of the child, the mother was awarded residential custody, and the father was awarded parenting time. The custody order specified that neither party was permitted to relocate with the child outside of Nassau or Suffolk Counties without consent of the other party or of the court. By petition dated March 12, 2019, the mother sought to modify the custody order to permit her to relocate with the child to Georgia. Family Court granted the mother’s petition and directed that the father have parenting time with the child in Georgia on 10 days’ notice to the mother. The Appellate Division found that the mother demonstrated a change in circumstances, providing a sufficient basis to conduct a hearing. She presented evidence that, since the custody order was issued, the safety in her neighborhood had declined, requiring her to move to protect the child’s safety, which led to a drastic increase in her living expenses. She also presented evidence that she had a job opportunity in Georgia with a higher salary than what she could earn in New York and that her living expenses would be lower in Georgia than they were in New York. The mother established by a preponderance of the evidence that relocating to Georgia was in the child’s best interests . The mother had sound reasons for wanting to relocate, including providing the child with a better environment and increased financial stability. The Family Court’s determination to credit the mother’s testimony as to how the move would improve her finances was entitled to deference. As to the father’s relationship with the child, who was 11 years old at the time of the hearing, the evidence demonstrated that the mother was the primary caregiver; that the father was not involved in the child’s day-to-day life, education, or healthcare; and that the father kept in contact with the child more through phone and FaceTime calls, rather than through in-person visits, which he could continue if the child moved to Georgia. The evidence demonstrated that the child liked the area where the mother sought to move, he had extended family in Georgia, several of the mother’s family members who saw the child regularly in New York were also moving to Georgia, and the child could visit the father during school breaks. It remitted the matter to the Family Court, to set forth a more detailed schedule for parental access, which must specify how the parties are to pay for the travel associated with the schedule.

 

 

 

Appellate Division, Third Department

           

In determining whether a parent’s belief regarding the need to use physical force to maintain discipline was reasonable, the trier of fact must consider whether a reasonable person in the same position as the parent would have believed that such force was necessary

 

 

            In Matter of Nicole J v Joshua J,--- N.Y.S.3d ----, 2022 WL 2068682, 2022 N.Y. Slip Op. 03780 (3d Dept.,2022) a custody modification and family offense proceeding, the evidence established that, in addition to perpetrating acts of domestic violence against the mother, the father, who had supervised visitation, frequently became frustrated with the child and would yell and curse at her. During the incident that prompted the mother to file the family offense petition, the father had difficulty managing the then two-year-old child’s desire to play with toys in an adjoining room. The father “yelled” and, according to the initial supervisor, “grabbed the child by the arm and threw her on a chair pretty aggressively, causing her to cry for an extended period of time. The father then cursed at the child, called her names and likened her to her mother in a disparaging way. There was evidence that the father had been similarly impatient and physically aggressive with the mother’s other children. The interim report resulting from a Family Ct Act § 1034 investigation, which was admitted into evidence, stated that there were child protective concerns related to the father’s temper. In independently reviewing  the record to determine whether a fair preponderance of the evidence supported a finding that the father committed one of the qualifying family offenses the Appellate Division found that the proof established that the father committed the family offense of harassment in the second degree and that he was not entitled to a justification defense. As relevant here, a person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person he or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same (Penal Law § 240.26[1]; see Family Ct Act § 812[1]). However, a child’s caretaker may use reasonable physical force for the purpose of discipline (Penal Law § 35.10[1]). In determining whether a parent’s belief regarding the need to use physical force to maintain discipline was reasonable, the trier of fact must consider whether a reasonable person in the same position as the parent would have believed that such force was necessary. The evidence demonstrated that the father used an aggressive amount of physical force to grab the two-year-old child by her arm and throw her in a chair, after which he yelled profane and disparaging insults at the child. The father’s conduct and language toward the child, which did not constitute reasonable disciplinary measures, evinced an intent to alarm the child. It found that the proof adduced at the hearing sufficiently established, by a preponderance of the evidence, that the father committed the family offense of harassment in the second degree (Penal Law § 240.26[1]; Family Ct Act § 812[1]).

 

 

Appellate Division, Fourth Department

 

A father who has promptly taken every available avenue to demonstrate that he is willing and able to enter into the fullest possible relationship with his under-six-month-old child should have an equally fully protected interest in preventing termination of the relationship, even if he has not as yet actually been able to form that relationship.

            In Matter of Adoption of William,  --- N.Y.S.3d ----, 2022 WL 2092955, 2022 N.Y. Slip Op. 03831 (4^th Dept.,2022) the Appellate Division affirmed an order that determined that the consent of respondent-petitioner Douglas W.M. (father) was required for the adoption of William, his biological son and awarded custody of the child to the father. It found a sound and substantial basis to support the determination that the father demonstrated “his willingness to take parental responsibility” (Matter of Raquel Marie X., 76 N.Y.2d 387[1990]. It held that a father who has promptly taken every available avenue to demonstrate that he is willing and able to enter into the fullest possible relationship with his under-six-month-old child should have an equally fully protected interest in preventing termination of the relationship by strangers, even if he has not as yet actually been able to form that relationship. It found that the  father did everything possible to manifest and establish his parental responsibility’ under the circumstances. He publicly acknowledged his paternity from the outset of the pregnancy, and, although he did not pay any expenses in connection with the pregnancy or the birth, he testified that all of those expenses were paid by the military. Prior to the child’s birth, the father pursued paternity testing and requested and received from the mother a commitment that he could have custody of the child, and actively began purchasing “items” in anticipation of obtaining custody of the child upon birth. Based on the mother’s commitment, the father enlisted the help of his military commanding officers to obtain custody of his child, and made plans for relatives or family friends to help care for the child until his enlistment in the military ended. It found that the father established his ability to assume custody of the child. Custody and housing are separate and distinct concepts. A parent who lacks housing for a child is not legally precluded from obtaining custody. Certainly, active military members should not lose custody of a child due to their service to our country. Many parents enlist the aid of family members to help them provide housing, including single parents who serve in the military. That temporary inability to provide housing should not preclude them from asserting their custodial rights to the children where, as here, they have established their intent to embrace their parental responsibility. The father reasonably and sincerely believed that the biological mother would not surrender the child for adoption, and she frustrated his efforts to become involved with the child. The evidence at the hearing established that the mother lied to the father, telling him that she would give him custody of the child; misled petitioners into believing that the father did not want the child, even though she knew that he was aggressively pursuing custody; and misled the courts by filing a false affidavit stating that no one was holding himself out as the father.

 

 

 

 

 

 

 

 

 

June 8, 2022

 

Appellate Division, First Department

 

Finding of neglect based solely on use of marijuana, without a finding of actual or imminent impairment of the child’s physical or emotional condition, is inconsistent with public policy legalizing marijuana

 

            In Matter of Saaphire A.W., 204 A.D.3d 488, 166 N.Y.S.3d 627, 2022 N.Y. Slip Op. 02382 (1^st Dept.,2022) the Appellate Division held that the evidence that the mother smoked marijuana while pregnant with her youngest daughter, and that the mother and child both tested positive for marijuana at the time of the birth, was insufficient, in and of itself, to sustain a finding that the child was physically, mentally or emotionally impaired, or was in imminent danger of being impaired. There was no evidence that the mother’s marijuana use impacted her judgment or behavior, or that the child was impaired or placed in imminent risk of impairment by the mother’s drug use. Furthermore, the finding of neglect based solely on use of marijuana, without a finding of actual or imminent impairment of the child’s physical or emotional condition, is inconsistent with this State’s public policy legalizing marijuana, as reflected in the amendment to the Family Court Act (Family Court Act § 1046[a][iii] [L 2021, ch 92, § 58, eff March 31, 2021]).

 

 

 

Appellate Division, Third Department

 

 

 

Family Ct Act § 1046(a)(iii) specifically forecloses a prima facie neglect finding based solely upon the use of marihuana

 

            In  Matter of Micah S.--- N.Y.S.3d ----, 2022 WL 1786627, 2022 N.Y. Slip Op. 03554 (3 Dept.,2022) the Appellate Division observed in a footnote that the Marihuana Regulation and Taxation Act (L 2021, ch 92) amended Family Ct Act § 1046(a)(iii), in pertinent part, by specifically foreclosing a prima facie neglect finding based solely upon the use of marihuana, while still allowing for consideration of the use of marihuana to establish neglect, provided “that there is a separate finding that the child’s physical[,] mental or emotional condition was impaired or is in imminent danger of becoming impaired.”

 

 

Appeal by Nonrespondent mother in Neglect Proceeding dismissed where the arguments advanced by the mother did not directly pertain to a custody determination made within this proceeding.

 

 

            In Matter of Andreija N., 2022 WL 1786662 (3d Dept.,2022) Respondent and Tiffany O. (mother) were the parents of a child (born in 2012). In July 2018, the petitioner commenced this proceeding alleging that respondent had abused, severely abused and repeatedly abused the child by committing sex offenses against her. The petition also alleged that respondent neglected the child by threatening to harm the mother and others, purportedly causing the child to experience fear and emotional distress. Family Court determined that petitioner failed to meet its burden to demonstrate that respondent abused or neglected the child and, dismissed the petition. Petitioner and the mother appealed. The Appellate Division dismissed the mothers appeal noting that the mother was not a proper party to this appeal. A nonrespondent parent in a child protective proceeding has a limited statutory role and narrow rights under Family Ct Act § 1035(d) related to issues of custody: to (1) pursue temporary custody of his or her child/children during fact-finding; and (2) seek permanent custody during the dispositional phase. It has been observed that the notice requirements of that statute are designed to ensure that the nonrespondent parent, often the noncustodial parent, is notified of the proceedings and allowed to intervene and be heard on temporary or permanent custody more often as alternative custodians for a child rather than foster care placements. Family Ct Act § 1035(d) was amended the year after its enactment to clarify the narrow role of nonrespondent parents,  limiting their participation to arguments and hearings at fact-finding insofar as they affect the temporary custody of the child and to all phases of a dispositional hearing. Thus, the role of a nonrespondent parent in a Family Ct Act article 10 proceeding has been carefully circumscribed, and the scope of a nonrespondent parent’s participation on appeal in such a proceeding is therefore similarly narrow. There is no question that the mother has an interest in the child’s welfare. However, allowing her to participate with full party status would significantly expand the intended role of a nonrespondent parent in this type of proceeding. As the arguments advanced by the mother did not directly pertain to a custody determination made within this proceeding, her appeal was dismissed.

 

 

 

June 1, 2022

 

 

The court is not required to hold a hearing on this interim fee application

 

            In Adler v Adler, --- N.Y.S.3d ----, 2022 WL 1739077, 2022 N.Y. Slip Op. 03468 (1^st Dept.,2022) the Appellate Division affirmed an order which awarded the plaintiff wife, pendente lite, custody-related counsel fees totaling $600,000. It observed that as  reflected in the legal bills at issue and counsel’s description of the work to be done imminently, a significant portion of legal fees were incurred and will be incurred in connection with specific custody-related matters not addressed in the parties’ prenuptial agreement, and that could not even have been contemplated by the parties when they executed the agreement, before the first of their four children was born. These included disputes over visitation and parenting time, efforts to resolve such disputes via stipulation, matters concerning the Attorney for the Children and appointed forensics, therapy issues and communications with the children’s pediatrician, parenting issues arising from the COVID pandemic, issues surrounding one child’s graduation, and disputes concerning the children’s activities such as tennis lessons and art classes. The prenuptial agreement did not address these matters, and thus the counsel fee waiver did not apply. The court was not required to hold a hearing on this interim fee application (see Matter of Balber v. Zealand, 169 AD3d 500 [1st Dept 2019]). The court carefully considered the bills and the issues, as shown by its reduction of the wife’s $900,000 interim counsel fee request to $600,000. The husband did not show the court failed to consider whether the billing was excessive or redundant, or that it miscalculated the extent to which the fees awarded were, in fact, custody-related. As the award is subject to reallocation at the end of the case, a hearing would be premature and an unnecessary expenditure of resources in an already heavily litigated case.

 

 

 

First Department holds that (1) its precedents support a smaller percentage distribution to the nontitled spouse of the value of a business created and managed by the titled spouse; (2) Because of the tax consequence it was appropriate to award plaintiff a smaller distribution of assets for which defendant will have to sell property awarded to her in equitable distribution in order to pay him; and (3) appreciation in value of defendant’s pre-marital business, during the marriage constituted marital property subject to distribution where appreciation was due to defendant’s active efforts and that there was “some nexus” between plaintiff’s limited indirect contributions as a supportive spouse and active parent, and the success of defendant’s business. The nontitled spouse is not required to quantify the connection between the titled spouse’s efforts and the increase in value of separate property during the marriage “with mathematical, causative or analytical precision.

 

             In Culman v Boesky, --- N.Y.S.3d ----, 2022 WL 1670167, 2022 N.Y. Slip Op. 03440(1^st Dept.,2022) the parties appealed from a judgment of divorce, valuing the subject art work by including the “buyer’s premium,” awarding plaintiff 7.5% of the appreciation in value of defendant’s business, Art Works Inc., during the marriage, 10% of the marital value of M&E, LLC, without awarding defendant a separate property credit, 10% of the marital value of the real property located in the Chelsea property, 20% of the marital value of the parties’ condominium in Aspen, Colorado, 20% of the appreciation in the cash surrender value of defendant’s AXA life insurance policy, 10% of the marital value of defendant’s personal art collection, and 50% of the remaining assets, including the value of the parties’ club memberships, vehicles, wine collection, bank accounts, and investment and retirement funds, directing defendant to pay plaintiff his equitable share of illiquid assets within four years of judgment at 3% interest, and awarding plaintiff $320,000 in counsel fees.

 

            Plaintiff commenced this divorce action on January 19, 2016. The parties stipulated that they would identify and evaluate marital assets as of May 15, 2015. At the time of trial, plaintiff was 51 and defendant was 52. They met in 2001 and married on June 28, 2003. They had one child born in 2004.   At the date of marriage, plaintiff was employed in the financial industry, and defendant was the owner of an art gallery, incorporated as Art Works, Inc. (AWI), which she had established in 1995. Throughout the marriage, the parties paid their living expenses primarily with defendant’s income, and did so exclusively after 2008, when plaintiff left his employment. Plaintiff then engaged in several business ventures, some of which were funded by defendant, but none of which were remunerative. After 2008, he did not contribute economically, either to defendant’s business or the parties’ living expenses, except for a deposit of $200,000 into the AWI account from an inheritance he received in 2011. However, plaintiff was primarily responsible for managing the payment of the family’s expenses. Both parties participated in parenting their daughter, with the assistance of a nanny five days per week. The nanny also accompanied the family on trips to Aspen and Nantucket. The trial court found that there was “some evidence” that plaintiff helped care for the child when defendant was traveling without the child, and on Saturdays from September to June when defendant was at work, which included taking the child to classes and skiing on Saturdays in the winter, starting in 2011. Plaintiff took the child to school and activities when the nanny did not. However, the trial court also found that plaintiff “engaged in conduct that was potentially detrimental” to the child when defendant was away on business. Plaintiff attended events with defendant related to her gallery, but he was not involved with the day-to-day work of defendant’s business. The trial court found that plaintiff’s contributions to the marriage, both economic and non-economic, began to diminish beginning in or about 2008, to the extent that, after 2012 or 2013, “he failed to make any significant contributions to the marriage.” Plaintiff executed the contract of sale for the Chelsea property on November 5, 2004, and the closing took place in January 2005. The Chelsea property was owned by an LLC formed for that purpose on October 28, 2004. Initially, defendant owned 100% of the LLC, but in 2011, she transferred 20% of it to a trust of which the parties’ daughter is the beneficiary. While defendant used some of her separate property funds to acquire the property, she also used some marital funds to pay the costs of the construction and renovation. In 2007, construction was completed on the residential portion of the building, which then became the marital residence. The majority of the Chelsea property was used by the gallery, and the residence occupied approximately 10% of the building. AWI had a lease with the LLC pursuant to which it paid rent to the LLC. The parties resided in the residential portion of the building rent-free.

 Plaintiff objected  globally to the trial court’s distribution of assets on the grounds that he was awarded only 10.2% of the marital estate, according to his calculations. Plaintiff complained that the overall distribution of assets to him constitutes a de minimis percentage of the parties’ total assets. However, equitable distribution does not require equal distributions. Its  precedents support a smaller percentage distribution to the nontitled spouse of the value of a business created and managed by the titled spouse. In a situation like this, where the complex marital estate is composed of multiple assets of varying natures, many of which cannot be distributed in kind, the court must carefully consider the equitable distribution of each asset based on the applicable statutory equitable distribution factors, which frequently leads to an unequal distribution that is nevertheless equitable.

 

            As defendant’s business was the parties’ largest asset, the application of the general principle that business assets are generally less evenly divided than other assets results in a greater overall distribution in defendant’s favor. Plaintiff failed to account for the tax consequences that defendant will bear in paying plaintiff his distributive award. In order for defendant to pay plaintiff its increased award to him of 15% of the marital portion of AWI, she would have to liquidate approximately 30% of the marital portion of AWI’s value,. Accordingly, taking into account the tax impact of the distribution to plaintiff, defendant would retain not 85% of the marital value of AWI, but closer to 70%. On the other hand, it affirmed the distribution to plaintiff of 50% of those marital assets that can be distributed in kind without any tax impact, including the value of the parties’ vehicles, wine collection, bank accounts, and investment and retirement funds. Because of the tax consequence it was appropriate to award plaintiff a smaller distribution of assets for which defendant will have to sell property awarded to her in equitable distribution in order to pay him.

 

            The Appellate Division held that  plaintiff met his burden to show that the appreciation in value of defendant’s pre-marital business, AWI, during the marriage constituted marital property subject to distribution. The record, including defendant’s own testimony, supported the trial court’s determination that the appreciation was due to defendant’s active efforts and that there was “some nexus” between plaintiff’s limited indirect contributions as a supportive spouse and active parent, at least in the early years of the marriage, and the success of defendant’s business. The nontitled spouse is not required to quantify the connection between the titled spouse’s efforts and the increase in value of separate property during the marriage “with mathematical, causative or analytical precision” (Citing Price v. Price, 69 N.Y.2d 8 (1986) and Hartog v. Hartog, 85 N.Y.2d 36 (1995)).

 

            The Appellate Division found that an award to plaintiff of significantly less than half of the marital portion of AWI was justified by the following facts: defendant started her business years before she met plaintiff; plaintiff was not involved with defendant’s acquisition or sale of art; plaintiff’s conduct was at times problematic and even a hindrance to defendant’s business success; plaintiff’s contributions to the marriage diminished over time; and defendant would bear substantial tax consequences when she sells art to pay plaintiff a distributive award (see Domestic Relations Law § 236[B][5][d][7], [8], [11]). However, the trial court’s distribution of only 7.5% of the marital appreciation in AWI to plaintiff was an improvident exercise of discretion, given the court’s findings that plaintiff made indirect contributions to defendant’s business as a supportive spouse and parent, at least in the early years of the marriage, and deposited $200,000 into the AWI account from an inheritance he received in 2011. He also attended many events with her, and provided occasional assistance, particularly following Hurricane Sandy. It found that plaintiff’s share of AWI’s appreciation during the marriage should be 15%, or $3,486,821.

 

            The Appellate Division held that with respect to M&E, an entity established during the marriage and partly owned by a trust benefitting the parties’ daughter, the award of 10% of the marital value to the plaintiff was an improvident exercise of discretion; instead, it found that his share should be 15%. Defendant’s role as sole arbiter of the acquisition and disposition of artwork held by M&E, plaintiff’s lack of any direct contribution to this asset, and his diminishing indirect contributions as a spouse and parent over time, as well as the tax consequences to defendant from selling assets to pay plaintiff’s distributive award justified a relatively small award to plaintiff of this asset (see Klauer v. Abeliovich, 149 A.D.3d 617 [1st Dept. 2017], supra). However, the trial court found that plaintiff made indirect contributions as a spouse and parent in the early years of the marriage.

 

            The Appellate Division further found that defendant was entitled to a separate property credit for art that was gifted to her, valued at $991,400, as detailed in tax returns (see Domestic Relations Law § 236B[1][d][1]). The stipulated value of the art held by M&E, taking into account the buyer’s premium, was $10,529,638. After deducting defendant’s separate property credit and the 33 1/3% interest of the trust benefitting the parties’ child, the amount subject to equitable distribution was $6,359,143, of which plaintiff was entitled to 15%, or $953,871.45.

 

            For similar reasons, the Appellate Division found that the award to plaintiff of 10% of the value of defendant’s personal art collection was an improvident exercise of discretion and that the distribution to him should be 15%, or $215,812.50, with the buyer’s premium.

           

            The Appellate Division held that   trial court’s award to plaintiff of only 10% of the marital value of the Chelsea property, which housed defendant’s art gallery and the parties’ former marital residence, was an improvident exercise of discretion. The award did not give sufficient weight to the facts that marital funds were used to construct, renovate, maintain, and operate the building and that plaintiff was involved during the construction process. On the other hand, after 2008, plaintiff ceased to earn an income and therefore did not contribute financially, and the parties did not pay rent or a mortgage to live in the marital residence since it was situated in a commercially zoned space. Considering all of these facts, it found that plaintiff was entitled to 30% of the marital value, or $3,708,233.28.

 

            Similarly, plaintiff was entitled to 40% of the marital value of the parties’ condominium in Aspen, instead of the 20% awarded by the trial court. The parties purchased and renovated this property during the marriage. The record showed that, although plaintiff was not earning income to contribute financially, he paid the bills associated with the property and handled the occasional summer rental.

 

          The Appellate Division held that trial court providently exercised its discretion in awarding plaintiff 50% of the value of the parties’ vehicles and the cost of their club membership fees. Defendant’s use of the cash proceeds from the sale of her separate property art to help fund these purchases did not render them her separate property, because those funds were commingled with marital funds in her account and used for the parties’ joint benefit.(see generally Mahoney-Buntzman v. Buntzman, 12 N.Y.3d 415, 421, 881 N.Y.S.2d 369, 909 N.E.2d 62 [2009]).

 

            The Appellate Division held that the court providently exercised its discretion in giving defendant four years to pay plaintiff his distributive award of the non-liquid assets, at 3% postjudgment interest, and 60 days to pay him his share of liquid assets, given the illiquid nature of the assets to be sold, the related tax consequences, and the effect of the pandemic on the economy in general and the art market in particular, of which the trial court took judicial notice

 

            The judgment of divorce was modified, on the law and the facts, to award plaintiff 15% of the marital appreciation of Art Works Inc., 15% of the marital value of M&E LLC after awarding defendant a separate property credit of $991,400, 30% of the marital value of the Chelsea property, 40% of the marital value of the condominium in Aspen, Colorado, 0% of the appreciation in the cash surrender value of defendant’s AXA life insurance policy, and 15% of the marital value of defendant’s personal art collection, and otherwise affirmed

 

           

Evidence of an offer to purchase is generally inadmissible at trial to show fair market value.

 

In Lauren S v Alexander S., --- N.Y.S.3d ----, 2022 WL 1668835, 2022 N.Y. Slip Op. 03443 (1^st Dept.,2022) the Appellate Division found that the Supreme Court erred in imposing a minimum value on the parties Southampton marital property based on a purchase offer of $20 million rejected by defendant, as evidence of an offer to purchase is generally inadmissible at trial to show fair market value.

 

           

 

 

 

Relocation to Ireland permitted wife and young child where meaningful extended vacations could compensate for the loss of regular visitation

            In Lavery v O’Sullivan, --- N.Y.S.3d ----, 2022 WL 1653929, 2022 N.Y. Slip Op. 03378 (2d Dept.,2022) plaintiff, who was a dual citizen of the United States and Ireland, and the defendant, who was a citizen of Ireland, married in 2015, and lived and worked in New York. They hade one child, who was born in 2016. Both parties had traveled frequently to Ireland to visit extended family. In October 2019, the plaintiff commenced this action seeking, inter alia, a judgment of divorce. Supreme Court, inter alia, awarded the plaintiff sole legal and physical custody of the child and permitted her to relocate with the child to Ireland. The Appellate Division affirmed. It found Supreme Court’s determination to be supported by a sound and substantial basis in the record. “ The Supreme Court found credible the plaintiff’s testimony that she was the child’s primary caregiver, that the defendant had engaged in alcohol abuse and subjected the plaintiff to instances of domestic violence and verbal abuse, and that if she were permitted to relocate with the child to Ireland, the child’s quality of life would be improved. In Ireland, the plaintiff and the child could live cost free in a guest house on the maternal grandparents’ property, the cost of living in the town was less than it is in New York, where the parties were struggling financially, and in Ireland the plaintiff had been offered a job as a clerical administrator in a nursing home. In addition, the plaintiff would have her parents, siblings, and cousins in the vicinity to offer her support, as well as the defendant’s extended family. The court properly concluded that, while relocation would disrupt the defendant’s regular contact with the child, meaningful extended vacations could compensate for the loss of regular visitation

 

 

Family Court did not improvidently exercise its discretion in denying the father’s motion to vacate the finding of neglect under Family Court Act § 1051(c), as the motion was made after the disposition and was, therefore, untimely.

 

 

            In Matter of  Yarelis E. --- N.Y.S.3d ----, 2022 WL 1653962 (Mem), 2022 N.Y. Slip Op. 03385 (2d Dept.,2022) a finding of neglect was entered against the father and after an order of disposition was issued, the father moved, inter alia,  pursuant to Family Court Act §§ 1051(c) to vacate the finding of neglect and to dismiss the petition. Family Court denied the father’s motion. The Appellate Division affirmed. It held that  Family Court did not improvidently exercise its discretion in denying the father’s motion to vacate the finding of neglect and to dismiss the petition under Family Court Act § 1051(c), as the motion was made after the disposition and was, therefore, untimely. In any event, the father failed to demonstrate that the aid of the court was not required (see Family Ct Act § 1051[c]).

 

 

May 25, 2022

 

 

Before entering judgment upon the husband’s default, there should have been an inquiry into whether a guardian ad litem was necessary where court explicitly acknowledged that the husband’s absence was likely attributable to his mental health

 

 

           In Buck v Buck, --- N.Y.S.3d ----, 2022 WL 1572173 (Mem), 2022 N.Y. Slip Op. 03335 (1^st Dept.,2022) Judgment was entered in this divorce proceeding after the husband, pro se, failed to appear for an inquest. At the time of the inquest, both the wife and Supreme Court were aware that the husband had been diagnosed with a significant mental health condition, which resulted in episodes during which the husband was demonstrably unable to care for himself or otherwise protect his interests. At the conclusion of the inquest, the court explicitly acknowledged that the husband’s absence was likely attributable to his mental health. The Appellate Divisoin held that  before entering judgment upon the husband’s default, there should have been an inquiry into whether a guardian ad litem was necessary (see CPLR 1201, 1203)  Because there was no inquiry, it vacated the judgment and the matter remanded for further proceedings, including, if necessary, an inquiry into the husband’s current capacity. The earlier decision of the court was recalled and vacated.

 

May 18, 2022

 

 

Family Court providently exercised its discretion in granting the father’s motion for an attorneys’ fees, since it was reasonable for the court to conclude that the mother’s repetitive motions and other dilatory tactics were undertaken primarily to delay or prolong the resolution of the litigation

            In the Matter of Aponte v Jagnarain, --- N.Y.S.3d ----, 2022 WL 1481726, 2022 N.Y. Slip Op. 03111 (2d Dept.,2022) the mother moved to vacate the final order of protection, entered upon her default, and to change venue from Nassau County to New York County, where the child resided. After that motion was denied, the mother made a successive motion for the same relief, and the father cross-moved for an award of attorneys’ fees. Family Court denied the mother’s motions and granted the father’s cross motion and awarded him attorneys’ fees of $2,200. The Appellate Divison affirmed. It held that the mother failed to provide a reasonable excuse for her failure to appear on the day the hearing was scheduled to resume. The mother had discharged her attorney on the eve of the continued hearing, and the court had denied her request for an adjournment, which was a provident exercise of discretion, particularly since the mother had previously discharged counsel under similar circumstances. The mother had no reason to believe that her request for an adjournment had been granted, and despite the court’s numerous attempts to reach the mother by telephone over the course of two days before proceeding with the hearing, the mother did not respond to any of the detailed voicemail messages left by the court for the mother and her sister. It also held that the Family Court providently exercised its discretion in granting the father’s cross motion for an award of attorneys’ fees, since it was reasonable for the court to conclude that the mother’s repetitive motions and other dilatory tactics were “undertaken primarily to delay or prolong the resolution of the litigation” (citing 22 NYCRR 130–1.1[c][2]; see Matter of Mancuso, 48 A.D.3d 570, 849 N.Y.S.2d 909; Ofman v. Campos, 12 A.D.3d 581, 582, 788 N.Y.S.2d 115).

 

 

 A witness’s testimony in a prior proceeding may be incorporated into a later proceeding if it was given under oath, referred to the same subject-matter, and was heard in a tribunal where the other side was represented and allowed to cross-examine.

 

 

            In Matter Aponte v Jagnariain, --- N.Y.S.3d ----, 2022 WL 1481731, 2022 N.Y. Slip Op. 03112 (2d Dept.,2022) the factual and procedural background was set forth in Matter of Aponte v. Jagnarain, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2022 WL 1481726 [decided herewith]). There the Family Court conducted a fact-finding hearing in the family offense proceeding, in which the father alleged that the mother had committed the family offense of harassment in that she repeatedly had falsely accused him of sexually abusing the parties’ child, and, upon the mother’s failure to appear at the hearing, issued a final order of protection directing the mother to stay away from the child except for supervised parental access. Thereafter, the Family Court conducted a hearing on the father’s petition to modify the prior orders of custody and parental access issued in this matter by limiting the mother’s parental access with the child to supervised parental access. At the hearing, the court heard testimony from the father, and incorporated the testimony of a witness who, at the hearing in the family offense proceeding, had recounted the accusations made by the mother against the father. In an order dated March 9, 2021, the court, among other things, in effect, granted the father’s petition to modify the prior orders of custody and parental access, and directed the mother to stay away from the child, except for supervised parental access. The Family Court determined that there had been a change in circumstances sufficient to warrant a modification of parental access based on evidence that the mother repeatedly made unfounded allegations that the father had sexually abused the child, and that those accusations required the child, at the age of four, to be subjected to intrusive physical examinations. This Appellate Division affirmed. It  held, inter alia,  that the Family Court did not err in incorporating into the record of the custody and parental access proceeding the testimony of the witness who had testified at the hearing in the family offense proceeding. A witness’s testimony may be incorporated into a later proceeding if “it was given under oath, referred to the same subject-matter, and was heard in a tribunal where the other side was represented and allowed to cross-examine” (Fleury v. Edwards, 14 N.Y.2d 334, 338–339). Here, the prior testimony was given under oath and referred to the same subject matter, and the mother was allowed to cross-examine the witness at the earlier hearing, but declined to avail herself of that opportunity when she voluntarily absented herself from that hearing. In addition, the mother had the opportunity to call the witness to testify at the hearing in the custody and parental access proceeding, and, if necessary, to request that the court deem her to be a hostile witness so that the mother could impeach her, but she failed to do so.

           

 

 

While an isolated incident cannot support a finding of harassment under Penal Law § 240.26(3) a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose can support such a finding.

 

            In Matter of Breval v Martinez, --- N.Y.S.3d ----, 2022 WL 1481748 (Mem), 2022 N.Y. Slip Op. 03113 (2d Dept.,2022) the  petitioner filed a family offense petition alleging that the respondent had committed various family offenses. After a hearing, the court determined, inter alia, in effect, that the petitioner failed to establish by a fair preponderance of the evidence the elements of a family offense and, in effect, denied the petition and dismissed the proceeding. The Appellate Division affirmed. It observed that as relevant here, a person commits the family offense of harassment in the second degree when, with intent to harass, annoy, or alarm another person, he or she ‘engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose’ ” (Penal Law § 240.26[3]). While there is no question that an isolated incident cannot support a finding of harassment, a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose can support such a finding. It held that the Family Court properly found that the evidence adduced at the hearing failed to identify more than an isolated incident. The court’s determination was based on its credibility assessments and supported by the record.

 

 

 

In a termination of parental rights proceeding on the ground of abandonment authorized by Social Services Law § 384–b(4)(b) while a parent’s conduct outside the abandonment period is not determinative in an abandonment proceeding, it may be relevant to assessing parental intent.

 

 

        In Matter of Grace  --- N.Y.S.3d ----, 2022 WL 1481401, 2022 N.Y. Slip Op. 03119 (2d Dept.,2022) the Appellate Division reversed an order which terminated the mothers parental rights on the ground of abandonment. It observed that termination of parental rights is authorized by Social Services Law § 384–b(4)(b). In order to demonstrate that the mother abandoned the children, the petitioner was required to demonstrate by clear and convincing evidence that during the six months prior to the petitions being filed, the mother evinced an intent to forego her parental rights, as manifested by her failure to visit or communicate with the children or the petitioner although able to do so and not prevented or discouraged from doing so by the petitioner (see id. § 384–b[3][g][i]; [4][b]; [5]). It found that the petitioner failed to establish by clear and convincing evidence that the mother evinced an intent to forego her parental rights. The record demonstrated that, during the six-month abandonment period, the mother visited with the children on two occasions, saw the children on at least one additional occasion at a family gathering, purchased clothing for the children, spoke with the case worker on the phone multiple times, and objected to the goal for the children’s placement changing to a kinship adoption rather than returning the children to the mother. Under these circumstances, the Family Court should have denied the petitions on the merits, insofar as asserted against the mother. It  noted that the record contained testimony from a case worker that, during family visits subsequent to the filing of the petitions, the mother’s interactions with the children were “very positive.” While a parent’s conduct outside the abandonment period is not determinative in an abandonment proceeding, it may be relevant to assessing parental intent.

 

 

May 11, 2022

 

Appellate Division, First Department

 

Submission of the retainer agreement with Mother’s reply papers was not fatal to her  motion for counsel fees, since the Family Court Act is clear that an award of  counsel fees is mandatory

 

            In Bernadette R v Anthony V.L., --- N.Y.S.3d ----, 2022 WL 1462648, 2022 N.Y. Slip Op. 03087 (1^st Dept.,2022) the Appellate Division held that Family Court properly concluded that the submission of the retainer agreement with petitioner mother’s reply papers was not fatal to her motion for counsel fees, since the Family Court Act is clear that an award of the counsel fees is mandatory, not discretionary (Family Court Act §§ 454[3]; 438[b]). However, the entry of a money judgment when no order directing payment of counsel fees had been entered was inconsistent with the procedure established by Family Court Act § 460, since the father was not in default in payment of an order.

 

           

A pendente lite award may be modified where a court awards an impermissible double shelter allowance resulting from directing the payment of both a child support award under the Child Support Standards Act and the carrying costs on the marital residence.       

 

 

            In Levin v Levin, --- N.Y.S.3d ----, 2022 WL 1414967 (Mem), 2022 N.Y. Slip Op. 03050 (1^st Dept.,2022) on a motion for pendente lite support Supreme Court directed plaintiff to pay $4,750 per month for child support, plus 57% of add-on expenses, $60,000 for defendant’s interim counsel fees, and $6,085 per month for the majority of carrying costs for the marital home. The Appellate Division modified the order and remitted  the matter to Supreme Court to clarify and recalculate the amount of child support and/or carrying costs for the marital residence. It held that  a pendente lite award should only be modified rarely and the general rule is that an aggrieved party’s remedy for perceived inequities in a pendente lite award is a speedy trial. However, a pendente lite award may be modified where a court awards an impermissible double shelter allowance resulting from directing the payment of both a child support award under the Child Support Standards Act and the carrying costs on the marital residence.  It held that here, the pendente lite award should be modified as the court directed the plaintiff to pay both child support as well as the majority of the carrying costs on the marital residence, resulting in a double shelter allowance. The court did so even though neither party sought a directive regarding carrying costs on the marital residence and the court failed to provide any explanation as to why it was awarding both child support and carrying costs on the marital residence. It declined to reach the merits of plaintiff’s argument that the pendente lite award should be modified with respect to plaintiff’s obligation to pay retroactive child support and defendant’s counsel fees because plaintiff’s remedy for such perceived inequities is a speedy trial.

 

 

 

Appellate Division, Second Department

Improper to direct parties to equally share the costs of supervised parental access, without evaluating the parties’ economic realities, including ability to pay and the actual cost of each visit

 

            In Matter of Gray v Tyson --- N.Y.S.3d ----, 2022 WL 1414933, 2022 N.Y. Slip Op. 02998 (2d Dept.,2022)  the Appellate Division held that  the Family Court should not have directed the parties to equally share the costs of the mother’s supervised parental access, without evaluating the parties’ economic realities, including the mother’s ability to pay and the actual cost of each visit. It remitted the matter to the Family Court, for a hearing to resolve those issues, and a determination thereafter regarding the parties’ respective shares of the costs for the mother’s supervised parental access.

 

 

Where life insurance is appropriate, it should be set in an amount sufficient to prevent financial injury

 

         

      In Shvalb v Rubinshtein,  --- N.Y.S.3d ----, 2022 WL 1231633, 2022 N.Y. Slip Op. 02827 (2d Dept.,2022) the parties were married in 2007 and had two children born in 2010. The Appellate Division observed that a  party’s obligation to pay maintenance and child support terminates upon that party’s death. The death of a payor spouse, however, may cause financial injury to a former spouse or children who, but for the payor spouse’s death, would have continued to receive maintenance, a distributive award, or child support. Accordingly, the legislature has provided that a court may require a payor spouse to maintain life insurance to prevent that financial injury (see Domestic Relations Law § 236[B][8][a ). Thus, where life insurance is appropriate, it should be set in an amount sufficient to achieve that purpose. Here, the Supreme Court should have directed the plaintiff to maintain a life insurance policy for the benefit of the parties’ children until their emancipation. It remitted the matter to the Supreme Court, for a determination of the amount of life insurance sufficient to secure the plaintiff’s child support obligations.

                                               

 

 

Where a child justifiably relies on the representations of a man that he is his or her father with the result that he or she will be harmed by the man’s denial of paternity, the man may be estopped from making such a denial where it is in the Childs best interest

 

            In Mitches- Lewis v. Lewis, --- N.Y.S.3d ----, 2022 WL 1231541, 2022 N.Y. Slip Op. 02787 (2d Dept.,2022) the parties were married on April 18, 2008. On August 21, 2008, the subject child was born. In August 2018, the plaintiff commenced this action for a divorce. Thereafter, the plaintiff moved, inter alia, for an award of interim counsel fees and to direct the defendant to pay pendente lite child support for the child. The defendant cross-moved to direct the parties and the child to submit to genetic marker testing, asserting that he was not the biological father of the child. Supreme Court, awarded interim counsel fees of $7,000. In a separate order the court denied the defendant’s cross motion to direct the parties and the child to submit to genetic marker testing. The Appellate Division affirmed.  It pointed out that where a child justifiably relies on the representations of a man that he is his or her father with the result that he or she will be harmed by the man’s denial of paternity, the man may be estopped from making such a denial. However, before a party can be estopped from denying paternity or from obtaining a DNA test that may establish that he is not the child’s biological parent, the court must be convinced that applying equitable estoppel is in the child’s best interest’ . Here, the Supreme Court providently exercised its discretion in determining that the defendant should be equitably estopped from denying paternity. While the defendant was not present for the child’s birth because he was on overseas military duty at the time, the defendant has not refuted the plaintiff’s assertion that his mother was present for the child’s birth. The defendant was named as the child’s father on the child’s birth certificate, and the child was given the defendant’s surname. Although the parties ended their relationship in September 2008, shortly after the child’s birth, the defendant acknowledged that he voluntarily provided financial support for the needs of the child for around nine years prior to the time he first denied paternity in May 2018. The defendant made no effort to deny his status as the child’s father until after he received a letter in March or April 2018 from a child support enforcement office. The defendant also indicated that he received military benefits for the child since the child’s birth, and provided for health, vision, and dental insurance for the child. Moreover, the child, who was now 13 years old, had only ever known the defendant to be his father. Under the circumstances, the court providently exercised its discretion in determining that it was in the best interest of the child to apply the doctrine of equitable estoppel. 

 

 

Appellate Division, Third Department

 

 

Where agreement requires appraisal from licensed appraisers, if appraiser does not substantially comply with the mandatory USPAP standards his appraisal should not be considered

 

 

In Martin v Martin --- N.Y.S.3d ----, 2022 WL 1243095, 2022 N.Y. Slip Op. 02840 (3D Dept., 2022) the parties agreement provided that "the parties . . . shall obtain three (3) appraisals, from licensed appraisers, and the arithmetic mean of these appraisals shall be considered the fair market value of the premises." In a post-judgment enforcement proceeding the husband argued that one appraisal had to  be disregarded because the appraiser did not comply with the provisions and standards set forth in the Uniform Standards of Professional Appraisal Practice. The agreement specifically required appraisals from licensed appraisers. The Appellate Division pointed out that pursuant to Executive Law article 6-E, the Board of Real Estate Appraisal adopts regulations establishing standards for appraisals and prescribing the form and content of appraisal reports (see Executive Law § 160-d [1] [d]; [2], [3]). Under these regulations, every appraisal by a certified or licensed real estate appraiser must comply with the provisions and standards set forth in the Uniform Standards of Professional Appraisal Practice (hereinafter USPAP) (see 19 NYCRR 1106.1 [a]), a -4- 532482 document "published by the Appraisal Foundation, which is authorized by the United States Congress as the source of appraisal standards" (19 NYCRR 1106.1 [b]). Thus, a reasonable implication of the agreement was that the parties, by specifying that the appraisers be licensed, intended for the appraisers to comply with appraisal standards mandated for state licensed and certified appraisers. It noted that there is a distinction between state certified real estate appraisers and state licensed real estate appraisers (see e.g., Executive Law §§ 160; 160-a [6] [a], [b]; 160-b [1]; 160-h); certified appraisers have met higher training standards.  The Appellate Division held that if it was  established that appraiser did not substantially comply with the mandatory USPAP standards (see 19 NYCRR 1106.1 [a]), his appraisal should not be considered as one of the three appraisals required by the parties' agreement. However, if the court determines following this hearing that he substantially complied with USPAP standards in compiling his appraisal report and reaching an opinion on the value of the property, his appraisal should be considered along with those of the other two appraisers, and the husband must pay the wife to purchase her share of equity in the property based upon the mean of those three appraisals.

 

 

Although none of judicial surrender documents expressly prohibit contacting the child, such a condition is necessarily included by implication in a  judicial surrender which states that Family Court informed respondent that the surrender would result in her “giving up all rights to have custody, visit with, speak with, write or learn about the child, forever,” unless respondent and the local social services agency agreed upon different terms.

          In Matter of Riley XX, --- N.Y.S.3d ----, 2022 WL 1243115, 2022 N.Y. Slip Op. 02839 (3d Dept.,2022) the Appellate Division held that enforcement of the post adoption contract agreement was not  in the child’s best interests. It found  a sound and substantial basis in the record for Family Court’s conclusions that the child’s best interests would be served by prohibiting respondent from contacting the child and that an order of protection was necessary to do so. Further, as respondent was attempting to inappropriately initiate contact with the child and repeatedly posting her pictures in public spaces despite the stated objections of petitioners, the court did not abuse its discretion in refusing to enforce the condition of the post-adoption contact agreement requiring petitioners to provide respondent with pictures and updates.  Although none of the documents expressly prohibited respondent from contacting the child, the Appellate Division found such a condition is necessarily included by implication in a  judicial surrender which states that Family Court informed respondent that the surrender would result in her “giving up all rights to have custody, visit with, speak with, write or learn about the child, forever,” unless respondent and the local social services agency agreed upon different terms as specified therein. The surrender also stated that it is subject to conditions contained in an attachment, which notes – under a heading of post-adoption communication or contact – that respondent “will receive updates and pictures at least twice per year.” No visitation or other contact with the child is mentioned. If parties to a contract omit terms – particularly, terms that are readily found in other, similar contracts — the inescapable conclusion is that the parties intended the omission”. Thus, by negative implication, the limited affirmative condition in the agreement indicated that no other type of contact had been agreed upon. Family Court apparently recognized that an appropriate method for petitioners to present their concerns about respondent’s attempts to contact the child would have been by a petition for enforcement of the post adoption contact agreement, pursuant to Domestic Relations Law § 112–b (4) (see Social Services Law § 383–c [2][b]). That statutory subdivision provides that “[a]n order incorporating an agreement regarding [postadoption] communication or contact ... may be enforced by any party to the agreement or the attorney for the child by filing a petition in the family court in the county where the adoption was approved. Such petition shall have annexed to it a copy of the order approving the agreement regarding communication or contact. The court shall not enforce an order under this section unless it finds that the enforcement is in the child’s best interests” (Domestic Relations Law § 112–b [4]). Although petitioners did not directly follow that procedural path, they nonetheless met the underlying requirements; they filed their motions in the proper court, attached a copy of the agreement and adoption order, and clearly stated the relief that they requested. Family Court expressly found that respondent “had notice of the relief sought, [was] well aware of the issues, and had the full opportunity to present evidence and argument[s]” at the hearing. Thus, respondent did not demonstrate prejudice arising from the manner in which this matter was initiated. Courts are permitted to ignore a defect in the form of a proceeding, and to convert a motion into a special proceeding (see CPLR 103[c]; 2001; Family Ct Act § 165[a]). It  expressly deemed petitioners’ filings to be an application for enforcement of the postadoption contact agreement.

 

           

Where upon finding of neglect the child was  “directly placed” with Kaline S it was error to dismiss neglect petition upon ground child had not been “in the care of an authorized agency for a period of at least one year prior to [petitioner] filing a permanent neglect petition.” Direct placement authorized by Family Court fell within the purview of Social Services Law § 384–b(1)(b)

 

 

            In Matter of Frank Q., --- N.Y.S.3d ----, 2022 WL 1243176, 2022 N.Y. Slip Op. 02843 (3d Dept.,2022) the Appellate Division reversed an order which dismissed petitioner’s application, in a proceeding pursuant to Social Services Law § 384–b, to adjudicate the subject child to be permanently neglected. Respondent was the mother of the subject child (born in 2018). Several months after the child’s birth, petitioner commenced a Family Ct Act article 10 proceeding alleging that the child was neglected by respondent and the child’s father. Thereafter, the parties consented to a temporary order of removal of the child and placement with Kaline S., a suitable person known to them. By order of Family Court, a permanency hearing was scheduled for June 2019 “if the child remains in foster care or is directly placed pursuant to [Family Ct Act §§ ] 1017 or 1055.” Thereafter, respondent consented to a finding of neglect and Family Court issued an order of fact-finding and disposition in May 2019, which ordered, pursuant to Family Ct Act § 1055, that the child is “directly placed” with Kaline S. In December 2019, while the child was still in a direct placement with Kaline S., petitioner commenced this permanent neglect proceeding seeking to terminate respondent’s parental rights, alleging that the child had been in the “care of an authorized agency” for a continuous one-year period. Following a five-day fact-finding hearing, although Family Court found “overwhelming evidence” of respondent’s neglect, it dismissed the petition on the ground that the child had not been “in the care of an authorized agency for a period of at least one year prior to [petitioner] filing a permanent neglect petition.” Family Court reasoned that, based on the language in Family Ct Act § 1017(2)(a), there was a clear distinction between a “direct release to a suitable person” like Kaline S. and a “placement with an authorized agency” like petitioner. Although the word “care” is not defined by statute, Family Court held that petitioner’s actions in providing services for the benefit of the child did not rise to that level, such as to “bathe, feed, cloth, educate or do any of the things required to care for the child.” Family Court distinguished this case from Matter of Dale P., 84 N.Y.2d 72, 614 N.Y.S.2d 967, 638 N.E.2d 506 (1994), and noted that the legislative intent of Social Services Law § 384–b was to prevent children from languishing in the foster care system, and it was undisputed that the child had never been in foster care. Petitioner appealed.

 

            The Appellate Division found that Family Court’s interpretation of Social Services Law § 384–b too narrow and calling for a result that is “unnecessarily circuitous”, and ultimately contrary to the stated legislative intent. Regarding the phrase “care of an authorized agency,” courts have consistently held that a direct placement authorized by Family Court, like the order of fact-finding and disposition issued in May 2019 pursuant to Family Ct Act § 1055, falls within the purview of Social Services Law § 384–b. In Matter of Dale P., 84 N.Y.2d at 75–76, 78–79, 614 N.Y.S.2d 967, 638 N.E.2d 506, the Court of Appeals rejected the argument that a child had to be formally placed in foster care, where a finding of abandonment had been made and a child’s care had been with a suitable person pursuant to Family Ct Act § 1055. Similarly, this Court had rejected the “narrow definitional approach” adopted by Family Court that a child who was directly placed with a suitable person was not within the “care of an authorized agency. Other Departments of the Appellate Division have also embraced the validity of a direct placement to satisfy Social Services Law § 384–b (see Matter of Hannah D., 292 A.D.2d 867, 867, 740 N.Y.S.2d 537 [4th Dept. 2002] [holding that “we reject the contention of (the mother) that the proceeding to terminate her parental rights on the ground of permanent neglect could not be maintained where, as here, the children had been placed directly with relatives”]; Matter of Anthony Julius A., 231 A.D.2d 462, 462, 647 N.Y.S.2d 212 [1st Dept. 1996] [finding “no merit to (the mother’s) contention that her parental rights could not be terminated unless the child had first been placed in the care of an authorized agency. Direct placement authorized by the Family Court can also be a predicate for a termination of parental rights proceeding”]). The Court agreed here  that the child had been in the care of petitioner to satisfy the statute. Petitioner evaluated Kaline S., performing a background check and interview, before ultimately approving her as a suitable person to care for the child. Although Kaline S. declined a foster care subsidy, she agreed to comply with monitoring and the requests of petitioner, and she further submitted to Family Court’s jurisdiction, consenting to “cooperate with respect to making the child available for court-ordered visitation with respondent[ ], siblings and others, appointments with the child’s attorneys and clinicians and other individuals or programs providing services to the child[ ], [and] visits (including home visits) by the child protective agency.” The record reflected close involvement and coordination between petitioner and Kaline S. during the pendency of this matter. Accordingly, it found that, in further consideration of Social Services Law § 384–b (1)(b), Family Court erred in dismissing the petition on the basis that the child had not been in the “care of an authorized agency.”

 

 

 

An allegation in petition that the parent wanted more parenting time with the child so that they could participate in more activities did not constitute a change in circumstances warranting a hearing as to whether modification would serve the child’s best interests.

           

            In Matter of Joshua KK., v. Jaime.--- N.Y.S.3d ----, 2022 WL 1243133, 2022 N.Y. Slip Op. 02847 (3d Dept.,2022) the Appellate Division reversed an order granted the fathers petition and awarded the father additional parenting time, including overnight visits. It held that the father, as the party seeking modification of a prior custody order, had the threshold burden of showing a change in circumstances since the entry of that prior order so as to trigger an examination as to whether modification would serve the child’s best interests. As a change in circumstances, the father alleged in the petition that he wanted more parenting time with the child so that they could participate in more activities. The father likewise testified at the hearing about the activities that he engaged in with the child during his parenting time and what he would do with her if given more parenting time.  Family Court found that a change in circumstances existed – namely, that the father wanted to have a closer relationship with the child and the amount of parenting time provided in the January 2019 order was insufficient to develop that relationship. Even crediting the father’s testimony, the father’s mere dissatisfaction with the amount of parenting time provided in the January 2019 order and the desire for more time did not constitute a change in circumstances.

 

 

 

Where transcript of family offense hearing included in the record on appeal reflected that counsel posed over 80 questions to respondent’s mother and that the parties and Family Court could hear the witness’s answer to only four of those questions, with 77 answers reported as “inaudible” meaningful review was impossible and new hearing ordered.

 

 

            In Matter of Jereline Z v Joseph A, 2022 WL 1243172 (3d Dept.,2022)  Family Court issued an order finding that respondent had committed family offenses and determined that the appropriate disposition was a one-year order of protection in favor of petitioner and the child. Respondent appealed from that order, arguing, among other things, that meaningful review was impossible because the transcript of the fact-finding hearing omitted potentially significant testimony. The Appellate Division observed that the hearing was recorded by an electronic recording system – not a court reporter – and the transcript provided in the record was prepared over seven months later by a commercial transcription service. One of the witnesses called at the hearing was respondent’s mother, who witnessed a November 2019 incident and testified as to what she observed. Although the transcript of the hearing included in the record on appeal reflected that counsel posed over 80 questions to respondent’s mother and that the parties and Family Court could hear her resulting answers, the transcript provides the witness’s answer to only four of those questions, with 77 answers reported as “inaudible.” Petitioner suggested that the absence of that testimony was immaterial, as respondent’s mother testified with regard to a November 2019 incident and Family Court only found that respondent had committed family offenses during an April 2020 incident. The Appellate Division found that it could not assess that argument without the testimony of respondent’s mother, which therefore constituted “a potentially significant portion of the transcript” . As the absence of that testimony made meaningful appellate review an impossibility, it reversed and remitted for a new hearing.

 

 

 

Fathers visitation with child terminated where evidence established that the child’s health and safety were compromised while in the father’s custody, and that continuing risk to her was detrimental to her welfare.

 

 

            In  Matter of Jared MM.,  v. Mark KK., --- N.Y.S.3d ----, 2022 WL 1414524, 2022 N.Y. Slip Op. 03032 (3d Dept.,2022)  the Appellate Division affirmed an order which terminated the fathers visitation where  the father routinely failed to avail himself of the parenting time that he was afforded, requiring the grandfather (who was awarded custody) and his wife to distract the child or simply not tell her about possibly seeing the father so as to avoid her confusion or disappointment when he ultimately failed to show up. The father was also the only person to testify at the hearing that he and the child enjoyed a relationship that was in any way beneficial to her. Most significantly, the credible evidence at the hearing demonstrated, by a preponderance of the evidence that the child’s health and safety were compromised while in the father’s custody, and that continuing risk to her was detrimental to her welfare.

 

            The Appellate Division pointed out in a footnote that as a consequence of an order which vacated the father’s prior judicial consent to a private placement adoption because no adoption had taken place it was required to treat his claim to the child as that of a parent. Contrary to the conclusion of Family Court the father was not required to himself establish extraordinary circumstances to proceed on his own petition.

 

 

 

Not every petition to modify custody is automatically entitled to a hearing, including where the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and Family Court has sufficient information to undertake a comprehensive independent review of the child’s best interests.

 

            In the Matter of Nathan PP.,  v. ANGELA PP., --- N.Y.S.3d ----, 2022 WL 1414475, 2022 N.Y. Slip Op. 03031 (3d Dept.,2022) the Appellate Division affirmed Family Court’s order granting the mother’s motion to dismiss the father amended petition to modify custody. It held that generally, in order to survive a motion to dismiss, the petitioner is required to establish a change in circumstances warranting an inquiry into whether the best interests of the child would be served by modifying the existing custody arrangement. However, parties to a custody proceeding may, like here, stipulate that either party can later seek modification of the custody order without demonstrating a change in circumstances. Despite eliminating that threshold burden of demonstrating a change in circumstances, a party still show that modification of the underlying order is necessary to ensure the child’s continued best interests. Although an evidentiary hearing is generally necessary, not every petition in a Family Court Act article 6 proceeding is automatically entitled to a hearing, including where the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and Family Court has sufficient information to undertake a comprehensive independent review of the child’s best interests.

 

 

           

The Appellate Division cannot treat a document as a notice of appeal when nothing in it suggests that it was intended to be one

           

            In  Matter of Washington County Department of Social Services on Behalf of Vernon v. Oudekerk, --- N.Y.S.3d ----, 2022 WL 1414592 (Mem), 2022 N.Y. Slip Op. 03038 (3d Dept.,2022)  the Appellate Division pointed out that the power of an appellate court to review a judgment or order is subject to an appeal being timely taken. An appeal is taken from a Family Court order by filing an original notice of appeal with the clerk of the family court in which the order was made and from which the appeal is taken, then serving that notice upon any adverse party as provided for in CPLR 5515(1) and upon the child’s attorney, if any, within the time allowed by Family Ct Act § 1113 (Family Ct Act § 1115). Where an appealing party fails to complete both steps by timely filing a notice of appeal in the proper court and by serving it on the individuals entitled to notice the Court lacks subject matter jurisdiction to hear the appeal. The record did not  contain a notice of appeal, with the father instead providing a “notice of poor person requesting permission to proceed” that served the different purposes of requesting poor person relief and the assignment of counsel in anticipation of an appeal from one or more of the January 2021 orders. It held that although a mistake, omission, defect or irregularity in a notice of appeal may be disregarded (CPLR 2001), and it may deem a notice of appeal to be valid where it is premature or contains an inaccurate description of the judgment or order appealed from (CPLR 5520[c]), it cannot treat a document as a notice of appeal when nothing in it suggests that it was intended to be one. Further, the record gave  no indication that the document was served upon petitioner as required for a notice of appeal. As the record was devoid of proof that a notice of appeal was filed or served in a timely manner, the appeal was dismissed.

 

 

 

April 27, 2022

 

Appellate Division, Second Department

 

 

Parent’s disrespect for the court’s authority is not a sufficient basis to modify custody.

 

            In  Matter of Corcoran v Liebowitz, --- N.Y.S.3d ----, 2022 WL 1160899 (Mem), 2022 N.Y. Slip Op. 02542 (2d Dept.,2022) the Appellate Division reversed an order which, without a hearing, granted the mother’s motion to award her sole legal custody of the children and remitted for a new hearing before a different judge. It held that in  order to modify an existing court-sanctioned custody or parental access agreement, there must be a showing that there was a sufficient change in circumstances so that modification is required to protect the best interests of the child. Although a parent seeking a change of custody is not automatically entitled to a hearing custody determinations should generally’ be made ‘only after a full and plenary hearing and inquiry. Where facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute,’ a hearing is required. The record did not demonstrate the absence of unresolved factual issues so as to render a hearing unnecessary. The record suggested that the award of sole legal custody to the mother served more as a punishment to the father for his misconduct than as an appropriate custody award in the children’s best interests. While the Family Court’s determination was initially limited to awarding the mother only decision-making authority as to education for the parties’ youngest child, the court abruptly awarded sole legal custody of both children to the mother in response to the father stating that the court’s decision was “ridiculous” and “demand[ing] we go to trial.” The court advised the father that his interjections “[c]hanged my mind,” and that “I was going to give you the option ... to remain a joint custodian, but ... you didn’t let me even finish my thought.” While the father’s disrespect for the court’s authority should not be countenanced, this was not a sufficient basis to modify custody.

 

 

Direction in parental access order, in effect allowing father to determine when the  child can have parental access time with the mother is improper delegation of authority

            In Felgueiras v Cabral --- N.Y.S.3d ----, 2022 WL 1097247, 2022 N.Y. Slip Op. 02410 (2d Dept.,2022) the Appellate Division vacated that part of an order which after  modifying custody to award custody to the father and provide the mother with parental access, directed that in the event that the mother ceases attending a Personalized Recovery Oriented Services (PROS) program before being successfully discharged, or has any unsupervised parental access with the child without prior court approval, parental access shall be immediately suspended. It held that these provisions did not appear to give the mother the opportunity to judicially challenge the father’s determinations concerning her compliance with the Personalized Recovery Oriented Services (PROS) program or whether she had unsupervised parental access with the child, and, consequently, constituted an improper delegation of authority by the Family Court to the father to determine when the child can have parental access time with the mother.

 

 

 

Where the court possesses information sufficient to afford a comprehensive, independent review, a hearing pursuant to Family Court Act § 1061is not required

 

            In the Matter of Sebastian P., --- N.Y.S.3d ----, 2022 WL 1097215 (Mem), 2022 N.Y. Slip Op. 02415 (2d Dept.,2022) the Appellate Division pointed out  that pursuant to Family Court Act § 1061, the Family Court may set aside, modify, or vacate any order issued in the course of an article 10 proceeding for “good cause shown. This statute expresses the strong Legislative policy in favor of continuing Family Court jurisdiction over the child and family so that the court can do what is necessary in the furtherance of the child’s welfare. The conducting of a hearing under section 1061 is not mandated, but is left entirely to the Family Court’s discretion. Where the court possesses information sufficient to afford a comprehensive, independent review, a hearing is not required .The Family Court was not required to conduct a hearing before determining the mother’s motion pursuant to Family Court Act § 1061, since the material facts underlying the motion were not in dispute.”

 

 

Appellate Division, Fourth Department

 

 

 

The Court has the power to impose restrictions on the childs interactions with third parties during visitation if it is in the child’s best interests to do so

 

          In Matter of Hall v Velez, --- N.Y.S.3d ----, 2022 WL 1196681 (Mem), 2022 N.Y. Slip Op. 02676 (4^th Dept., 2022) the Appellate Division affirmed an order that, among other things, modified a prior order of custody and visitation by prohibiting any contact between the parties’ children and the mother’s male friend. It observed that Family Court is ‘afforded wide discretion in crafting an appropriate visitation schedule’ ... and ‘has the power to impose restrictions on [the children’s] interactions with third parties during visitation if it is in the child[ren]’s best interests to do so. The evidence in the record established that the mother’s friend engaged in acts of violence in the presence of the children, repeatedly used drugs with the mother and, along with the mother, frequently and flagrantly violated the court’s temporary order that the children not be in his presence. Consequently, the court properly determined that allowing the mother’s friend to have contact with the children created an unnecessary risk to their health and well-being. It concluded that the court’s determination that it is in the children’s best interests to have no contact with the mother’s friend had a sound and substantial basis in the record.

 

 

 

Recent Legislation (new matter underlined)

 

Domestic Relations Law 13-b

 

Laws of 2022, Ch 56,§ 39 amended Domestic Relations Law 13-b to read as follows:

   § 13-b. Time within which marriage may be solemnized. A marriage shall

   not be solemnized within twenty-four hours after  the  issuance  of  the

   marriage  license, unless authorized by an order of a court of record as

   hereinafter provided, nor shall it be solemnized after sixty  days  from

   the  date  of  the  issuance  of  the marriage license unless authorized

   pursuant to section ten of the 

   veterans'  services  law.  Every  license to marry hereafter issued by a

   town or city clerk, in addition to other requirements specified by  this

   chapter, must contain a statement of the day and the hour the license is

   issued  and  the  period during which the marriage may be solemnized. It

   shall be the duty of the clergyman or magistrate performing the marriage

   ceremony, or if the marriage is solemnized by written contract,  of  the

   judge  before  whom the contract is acknowledged, to annex to or endorse

   upon the marriage license the date and hour the marriage is  solemnized.

   A  judge  or  justice  of  the supreme court of this state or the county

   judge of the county in which either party to be married resides, or  the

   judge  of  the  family  court of such county, if it shall appear from an

   examination of the license and any other proofs submitted by the parties

   that one of the parties is in danger of imminent death, or by reason  of

   other  emergency  public interest will be promoted thereby, or that such

   delay will work irreparable injury or great hardship upon the  contract-

   ing  parties, or one of them, may, make an order authorizing the immedi-

   ate  solemnization  of  the marriage and upon filing such order with the

   clergyman or magistrate performing the  marriage  ceremony,  or  if  the

   marriage  is to be solemnized by written contract, with the judge before

   whom the contract is acknowledged,  such  clergyman  or  magistrate  may

   solemnize  such  marriage, or such judge may take such acknowledgment as

   the case may be, without waiting for such three day period  and  twenty-

   four hour period to elapse. The clergyman, magistrate or judge must file

   such  order  with  the  town or city clerk who issued the license within

   five days after the marriage is solemnized. Such town or city clerk must

   record and index the order in the book required to be kept by him or her

   for recording affidavits, statements, consents and licenses, and when so

   recorded the order shall become a public record  and  available  in  any

   prosecution  under this section. A person who shall solemnize a marriage

   in violation of this section shall be guilty of a misdemeanor  and  upon

   conviction thereof shall be punished by a fine of fifty dollars for each

   offense,  and  in  addition  thereto,  his  or  her right to solemnize a

   marriage shall be suspended for ninety days.

 

 

Domestic Relations Law § 14-a (3)(a)

 

Laws of 2022, Ch 56, § 3.Amended Domestic Relations Law § 14-a (3)(a) to read as follows:

 

     a.  No  fee  shall be charged for any certificate when required by the

   United States department  of  veterans  affairs  or  by  the  

   department  of veterans' services of the state of New York to be used in

   determining the eligibility of any person to participate in the benefits

   made available by the United States department of veterans affairs or by

   the state of New York.

 Domestic Relations Law §19(1)

  Laws of 2022, Ch 56, § 4. amended Domestic Relations Law §19(1)to read as follows:

     1. Each town  and  city  clerk  hereby  empowered  to  issue  marriage

   licenses shall keep a book supplied by the state department of health in

   which  such clerk shall record and index such information as is required

   therein, which book shall be kept and preserved as a part of the  public

   records  of  his  or  her  office. Whenever an application is made for a

   search of such records the city or town clerk, excepting the city  clerk

   of  the city of New York, may make such search and furnish a certificate

   of the result to the applicant upon the payment of a fee of five dollars

   for a search of one year and a further fee of one dollar for the  second

   year  for  which such search is requested and fifty cents for each addi-

   tional year thereafter, which fees shall be  paid  in  advance  of  such

   search.  Whenever an application is made for a search of such records in

   the city of New York, the city clerk of the city of New  York  may  make

   such  search  and  furnish  a certificate of the result to the applicant

   upon the payment of a fee of five dollars for a search of one year and a

   further fee of one dollar for  the  second  year  for  which  search  is

   requested and fifty cents each additional year thereafter. Notwithstand-

   ing any other provision of this article, no fee shall be charged for any

   search  or  certificate when required by the United States department of

   veterans affairs or by the department of  veterans'  services

   of  the  state  of New York to be used in determining the eligibility of

   any person to participate in the benefits made available by  the  United

   States  department  of veterans affairs or by the state of New York. All

   such affidavits, statements and consents, immediately upon the taking or

   receiving of the same by the town or city clerk, shall be  recorded  and

   indexed  as  provided  herein  and  shall  be public records and open to

   public inspection whenever the same may be  necessary  or  required  for

   judicial  or  other  proper  purposes. At such times as the commissioner

   shall direct, the said town or city clerk, excepting the city  clerk  of

   the  city  of New York, shall file in the office of the state department

   of health the original of each affidavit, statement, consent, order of a

   justice  or  judge  authorizing  immediate  solemnization  of  marriage,

   license and certificate, filed with or made before such clerk during the

   preceding  month.  Such  clerk shall not be required to file any of said

   documents with the state department  of  health  until  the  license  is

   returned  with  the  certificate showing that the marriage to which they

   refer has been actually performed.

     The county clerks of the counties comprising  the  city  of  New  York

   shall  cause  all  original  applications and original licenses with the

   marriage solemnization statements thereon heretofore  filed  with  each,

   and  all  papers and records and binders relating to such original docu-

   ments pertaining to marriage licenses issued  by  said  city  clerk,  in

   their  custody  and possession to be removed, transferred, and delivered

   to the borough offices of the city clerk in each of said counties.

     

Domestic Relations Law §20-c

Laws of 2022, Ch 57, §1 added Section 20-c to the Domestic Relations Law to read as follows:

 

     §  20-c.  Certification of marriage; new certificate in case of subse-

   quent change of name or gender. 1. A new marriage certificate  shall  be

   issued  by the town or city clerk where the marriage license and certif-

   icate was issued, upon receipt of proper proof of a change  of  name  or

   gender designation. Proper proof shall consist of: (a) a judgment, order

   or  decree  affirming  a  change of name or gender designation of either

   party to a marriage; (b) an amended birth  certificate  demonstrating  a

   change  of  name  or  gender designation; (c) in the case of a change of

   gender designation, a notarized affidavit from the individual  attesting

   to their change of gender designation; or (d) such other proof as may be

   established by the commissioner of health.

     2.  When  a new marriage certificate is made pursuant to this section,

   the town or city clerk shall substitute such  new  certificate  for  the

   marriage  certificate  then  on  file,  if any, and shall send the state

   commissioner of health a digital copy of the new marriage certificate in

   a format prescribed by the commissioner, with the exception of the  city

   clerk  of  New  York who shall retain their copy. The town or city clerk

   shall make a copy of the new marriage certificate for the  local  record

   and  hold the contents of the original marriage certificate confidential

   along with all supporting documentation, papers  and  copies  pertaining

   thereto.  It shall not be released or otherwise divulged except by order

   of a court of competent jurisdiction.

     3. The town or city clerk shall be entitled to a fee  of  ten  dollars

   for  the  amendment  and  certified  copy of any marriage certificate in

   accordance with the provisions of this section.

     4. The state commissioner of health may, in their  discretion,  report

   to  the  attorney  general  any  town or city clerk that, without cause,

   fails to issue a new marriage certificate upon receipt of  proper  proof

   of  a  change  of  name  or  gender  designation in accordance with this

   section. The attorney general shall thereupon, in the name of the  state

   commissioner of health or the people of the state, institute such action

   or  proceeding  as  may  be necessary to compel the issuance of such new

   marriage certificate.

 

      (§2 of the Act provides that this provision is effective six months

   After it shall have  become a law.)

Family Court Act §302.1(4)

Laws of 2022, Ch 56 § 1 amended Family Court Act §302.1 by adding   a new subdivision 4 to read as follows:

   4. Where a proceeding had been commenced in the youth part of a  supe-

   rior court for an act alleged to have been committed prior to his or her

   eighteenth birthday and then had been removed to family court, the fami-

   ly court shall exercise jurisdiction under this article, notwithstanding

   the  fact  that  the respondent may be over the age of eighteen prior to

   the proceeding having commenced in the family court.

 

Family Court Act § 302.2 

 

Laws of 2022, Ch  56, § 2 amended Family Court Act § 302.2  to read as follows:

  § 302.2. Statute of limitations.  A  juvenile  delinquency  proceeding

   must  be commenced within the period of limitation prescribed in section

   30.10 of the criminal procedure law or, unless  the  alleged  act  is  a

   designated  felony  as  defined in subdivision eight of section 301.2 of

   this part or is an act allegedly committed when the respondent was  aged

   sixteen  years  or  older,  commenced before the respondent's eighteenth

   birthday, whichever occurs earlier, provided  however,  that  consistent

   with  subdivision  four  of  section  302.1 of this part,   a proceeding

   commenced for an act allegedly committed when the  respondent  was  aged

   sixteen  years  or  older  shall be considered timely if it is commenced

   within such period of limitation prescribed  in  section  30.10  of  the

   criminal  procedure law or prior to the respondent's twentieth birthday,

   whichever  occurs  earlier,  regardless  of  whether  the   action   had

   originally  been commenced prior to the respondent's eighteenth birthday

   in a youth part of a superior court. When the alleged act constitutes  a

   designated  felony  as  defined in subdivision eight of section 301.2 of

   this part or is an act allegedly committed when the respondent was  aged

   sixteen  years  or  older, such proceeding must be commenced within such

   period of limitation or  before  the  respondent's  twentieth  birthday,

   whichever occurs earlier.

 

Family Court Act §309.1

Laws of 2022, Ch 56, §  3 amended the Family Court Act by adding a new section 309.1 to read as follows:

     § 309.1. Community based  treatment  referrals.  1.  A  youth  who  is

   released  prior  to  the filing of a petition shall be made aware of and

   referred to community based organizations  offering  counseling,  treat-

   ment,  employment, educational, or vocational services in which they may

   voluntarily enroll or participate. Such services shall be separate  from

   and  in addition to any adjustment services provided under section 308.1

   of this part, where applicable.

     2. The youth shall be advised that the  service  referrals  are  being

   made  as  a  resource  and  participation  in them is voluntary and that

   refusal to participate will not negatively impact any  aspect  of  their

   pending  case.  Provided, however, nothing shall preclude the youth from

   voluntarily providing information, after consulting with their attorney,

   demonstrating  successful  enrollment,  participation,  and  completion,

   where  applicable,  of  any  such services. The court shall consider any

   information provided by the youth regarding such  participation  in  the

   case proceedings including but not limited to dispositional or placement

   determinations.  The  court may require supporting documentation for any

   such consideration that the youth requests, provided however, that  such

   information  shall  be maintained as confidential in accordance with any

   applicable state or federal law.

     3. No statements made to probation when discussing any service  refer-

   rals under this section shall be admissible in a fact-finding hearing.

     (§ 4 of the Act provides.  This  act  shall take effect immediately;  provided that section three of this act shall apply to offenses committed  on  or  after  such    date  and  to  offenses for which the statute of limitations that was in effect prior to such date has not elapsed as of such date.)

 

 

 

Juvenile Delinquincy Amendments  (new matter underlined)

Laws of 2022 Ch 38 approved February 24, 2022, effective December 29, 2022

amended  Chapter 810 of the laws of 2021 by making technical changes related to the law defining the age in which a youth would be considered a juvenile delinquent. The amendment takes effect one year after it shall have become a law.

 

Family Court Act § 117 (b) opening paragraph:

 

    Laws of 2022, Ch 38, Section 1 amended Family Court Act § 117 (b) opening    paragraph to read as follows:

 

     For every juvenile delinquency proceeding under article three  involv-

   ing  an  allegation of an act committed by a person which, if done by an

   adult, would be a crime (i) defined in sections 125.27  (murder  in  the

   first  degree); 125.25 (murder in the second degree); 135.25 (kidnapping

   in the first degree); or 150.20 (arson in the first degree) of the penal

   law committed by a person thirteen, fourteen, fifteen, sixteen,  or

   seventeen  years  of  age; or such conduct committed as a sexually moti-

   vated felony, where authorized pursuant to section 130.91 of  the  penal

   law;  (ii)  defined  in  sections  120.10 (assault in the first degree);

   125.20 (manslaughter in the first degree); 130.35  (rape  in  the  first

   degree);  130.50  (criminal  sexual  act  in  the  first degree); 130.70

   (aggravated sexual abuse in the first degree); 135.20 (kidnapping in the

   second degree), but only where the abduction involved the use or  threat

   of use of deadly physical force; 150.15 (arson in the second degree); or

   160.15  (robbery  in  the  first degree) of the penal law committed by a

   person thirteen, fourteen, fifteen, sixteen, or seventeen years  of

   age;  or  such  conduct  committed as a sexually motivated felony, where

   authorized pursuant to section 130.91 of the penal law; (iii) defined in

   the penal law as an attempt to commit murder  in  the  first  or  second

   degree or kidnapping in the first degree committed by a person thirteen,

   fourteen,  fifteen,  sixteen,  or  seventeen years of age; or such

   conduct committed as  a  sexually  motivated  felony,  where  authorized

   pursuant  to  section  130.91  of the penal law; (iv) defined in section

   140.30 (burglary in the first degree); subdivision one of section 140.25

   (burglary in the second  degree);  subdivision  two  of  section  160.10

   (robbery  in  the  second degree) of the penal law; or section 265.03 of

   the penal law, where such machine gun or such firearm  is  possessed  on

   school  grounds,  as  that  phrase is defined in subdivision fourteen of

   section 220.00 of the penal law committed by  a  person  fourteen  [or],

   fifteen,  sixteen,  or seventeen years of age; or such conduct committed

   as a sexually motivated felony, where  authorized  pursuant  to  section

   130.91  of  the penal law; (v) defined in section 120.05 (assault in the

   second degree) or 160.10 (robbery in the second degree) of the penal law

   committed by a person fourteen,  fifteen,  sixteen,  or  seventeen

   years  of  age  but only where there has been a prior finding by a court

   that such person has previously committed an act which, if committed  by

   an adult, would be the crime of assault in the second degree, robbery in

   the  second degree or any designated felony act specified in clause (i),

   (ii)  or  (iii) of this subdivision regardless of the age of such person

   at the time of the commission of the prior act; or  (vi)  other  than  a

   misdemeanor, committed by a person at least twelve but less than

   eighteen  years  of age, but only where there have been

   two prior findings by the court that such person has committed  a  prior

   act which, if committed by an adult,  would be a felony:

 

 

Family Court Act § 301.2 (1)

Laws of 2022 Ch 38 §  2 amended Family Court Act § 301.2 (1) to read as follows:

 

     1. "Juvenile delinquent" means a person over

   seven  and  less  than  sixteen  years  of age, or commencing on October

   first, two thousand eighteen a person over seven and less than seventeen

   years of age, and commencing October  first,  two  thousand  nineteen  a

   person  over  seven  and  less  than  eighteen years of age, who, having

   committed an act that would constitute a crime, or  a  violation,  where

   such  violation  is  alleged to have occurred in the same transaction or

   occurrence of the alleged criminal act, if committed by an adult, (a) is

   not criminally responsible for such conduct by reason of infancy, or (b)

   is the defendant in an action ordered removed from a criminal  court  to

   the  family  court  pursuant to article seven hundred twenty-five of the

   criminal procedure law.

     

 

Family Court Act § 301.2 (1)

 

 

Laws of 2022 Ch 38 §  3 amended Family Court Act § 301.2 (1) to read as follows:

 

 

     1. "Juvenile delinquent" means:

     (a)(i)  a person at least twelve and less than eighteen years of age, having committed an act that would  constitute  a  crime  if  committed  by  an

adult; or

     (ii)  a person over sixteen and less than seventeen years of age or, a

   person over sixteen and less than eighteen years of age commencing Octo-

   ber first, two thousand nineteen, having committed an act that  would

   constitute  a violation as defined by subdivision three of section 10.00

   of the penal law if committed by  an  adult,  where  such  violation  is

   alleged  to  have  occurred in the same transaction or occurrence of the

   alleged criminal act; or

     (iii) a person over the age of seven and less than twelve years of age

   having committed an act that  would  constitute  one  of  the  following

   crimes,  if  committed  by an adult: (A) aggravated criminally negligent

   homicide as defined in section 125.11 of the penal  law;  (B)  vehicular

   manslaughter  in  the  second degree as defined in section 125.12 of the

   penal law; (C) vehicular manslaughter in the first degree as defined  in

   section  125.13  of  the penal law; (D) aggravated vehicular homicide as

   defined in section 125.14 of the penal  law;  (E)  manslaughter  in  the

   second  degree  as  defined  in  section  125.15  of  the penal law; (F)

   manslaughter in the first degree as defined in  section  125.20  of  the

   penal  law;  (G) aggravated manslaughter in the second degree as defined

   in section 125.21 of the penal law; (H) aggravated manslaughter  in  the

   first  degree  as defined in section 125.22 of the penal law; (I) murder

   in the second degree as defined in section 125.25 of the penal law;  (J)

   aggravated murder as defined in section 125.26 of the penal law; and (K)

   murder  in  the  first  degree as defined in section 125.27 of the penal

   law; and

     (b) who is:

     (i) not criminally responsible for such conduct by  reason  of  infan-

   Cy ; or

     (ii) the defendant in an action ordered removed from a crimi-

   nal  court to the family court pursuant to article seven hundred twenty-

   five of the criminal procedure law.

  

 

Family Court Act § 301.2 (8)

 

 

Laws of 2022 Ch 38  § 4  Amended Family Court Act § 301.2 (8) to read as follows:

 

     8. "Designated felony act" means an act which, if done  by  an  adult,

   would  be  a  crime: (i) defined in sections 125.27 (murder in the first

   degree); 125.25 (murder in the second degree); 135.25 (kidnapping in the

   first degree); or 150.20 (arson in the first degree) of  the  penal  law

   committed by a person thirteen, fourteen, fifteen, sixteen, or seventeen

   years  of age; or such conduct committed as a sexually motivated felony,

   where authorized pursuant to section  130.91  of  the  penal  law;  (ii)

   defined  in  sections  120.10  (assault  in  the  first  degree); 125.20

   (manslaughter in the first degree); 130.35 (rape in the  first  degree);

   130.50  (criminal  sexual  act  in the first degree); 130.70 (aggravated

   sexual abuse in the first degree);  135.20  (kidnapping  in  the  second

   degree)  but  only where the abduction involved the use or threat of use

   of deadly physical force; 150.15 (arson in the second degree) or  160.15

   (robbery  in  the  first  degree) of the penal law committed by a person

   thirteen, fourteen, fifteen, sixteen, or seventeen years of age; or such

   conduct committed as  a  sexually  motivated  felony,  where  authorized

   pursuant  to section 130.91 of the penal law; (iii) defined in the penal

   law as an attempt to commit murder in the  first  or  second  degree  or

   kidnapping in the first degree committed by a person thirteen, fourteen,

   fifteen,  sixteen,  or seventeen years of age; or such conduct committed

   as  a  sexually  motivated  felony, where authorized pursuant to section

   130.91 of the penal law; (iv) defined in section 140.30 (burglary in the

   first degree); subdivision one of section 140.25 (burglary in the second

   degree); subdivision two  of  section  160.10  (robbery  in  the  second

   degree) of the penal law; or section 265.03 of the penal law, where such

   machine  gun  or  such  firearm  is possessed on school grounds, as that

   phrase is defined in subdivision fourteen of section 220.00 of the penal

   law committed by a person fourteen, fifteen, sixteen, or  seventeen

   years  of age; or such conduct committed as a sexually motivated felony,

   where authorized pursuant to  section  130.91  of  the  penal  law;  (v)

   defined  in  section  120.05  (assault  in  the second degree) or 160.10

   (robbery in the second degree) of the penal law committed  by  a  person

   fourteen,  fifteen,  sixteen  or  seventeen  years of age but only where

   there has been a prior finding by a court that such person has previous-

   ly committed an act which, if committed by an adult, would be the  crime

   of  assault  in  the  second degree, robbery in the second degree or any

   designated felony act specified in paragraph (i), (ii), or (iii) of this

   subdivision regardless of the age of such person  at  the  time  of  the

   commission  of the prior act; (vi) other than a misdemeanor committed by

   a person at least twelve but less than eighteen years of age,  but  only

   where  there  have been two prior findings by the court that such person

   has committed a prior act which, if committed by an adult,  would  be  a

   felony.

 

 

Family Court Act §304.1 (3)

 

 

Laws of 2022 Ch 38  §  5. Amended Family Court Act §304.1 (3) to read as follows:

 

 

     3. The detention of a child under ten years  of  age  in  a

   secure  detention  facility  shall  not  be  directed  under  any of the

   provisions of this article.

 

 

 

Family Court Act §304.1 (3)

Laws of 2022 Ch 38 §  6. Amended Family Court Act §304.1 (3)to read as follows:

 

     3.  The  detention  of  a child under  thirteen years of age in a

   secure detention facility shall not be directed, unless such child is at

   least ten years old and is considered a juvenile delinquent pursuant  to

   subparagraph  (iii) of paragraph (a) of subdivision one of section 301.2

   of this article, nor shall the detention of a child  adjudicated  solely

   for  an  act that would constitute a violation as defined in subdivision

   three of section 10.00 of the penal law, be directed under  any  of  the

   provisions of this article.

 

 

Social Services Law §409-a(1)(a)

Laws of 2022 Ch 38 §  7. Amended Social Services Law §409-a (1)(a) to read as follows:

 

 

   (a)  A social services official shall provide preventive services to a

   child and his or her family, in accordance  with  the  family's  service

   plan  as required by section four hundred nine-e of this chapter and the

   social services district's child welfare  services  plan  submitted  and

   approved pursuant to section four hundred nine-d of this chapter, upon a

   finding  by such official that (i) the child will be placed, returned to

   or continued in foster care unless such services are provided  and  that

   it  is  reasonable  to believe that by providing such services the child

   will be able to remain with or be returned to his or her family, and for

   a former foster care youth under the age of twenty-one who was previous-

   ly placed in the care and custody or custody  and  guardianship  of  the

   local commissioner of social services or other officer, board or depart-

   ment  authorized  to  receive  children  as  public  charges where it is

   reasonable to believe that by providing such services the former  foster

   care  youth  will avoid a return to foster care or (ii) the child is the

   subject of a petition under article seven of the family court act or  by

   the  probation  service,  to  be  at risk of being the subject of such a

   petition, and the social services official determines that the child  is

   at  risk  of  placement into foster care or (iii) the child is under the

   age of twelve, the child does not fall under the definition of  a  juve-

   nile delinquent pursuant to  subparagraph (iii) of para-

   graph  (a)  of  subdivision one of section 301.2 of the family court act

   and but for their age, their behavior would bring them within the juris-

   diction of the family court pursuant to  article  three  of  the  family

   court act, and the social services official determines that the child is

   at  risk of placement into foster care. Such finding shall be entered in

   the child's uniform case record established and maintained  pursuant  to

   section  four  hundred  nine-f  of  this article. The commissioner shall

   promulgate regulations to assist social  services  officials  in  making

   determinations  of eligibility for mandated preventive services pursuant

   to this subparagraph.

 

 

Laws of 2022 Ch 38 §  6 Effective date

 

   Laws of 2022 Ch 38 §  6  §  13 provides that the amendments shall  take effect on the same date and in the same manner as a chapter of the laws of 2021 amending the family  court  act, the  social  services  law and the executive law relating to raising the lower age of juvenile delinquency jurisdiction from  age  seven  to  age twelve  and  establishing  differential  response  programs for children under the age of twelve, as proposed in  legislative  bills  numbers  S.4051-A  and  A. 4982-A, takes effect; provided, however, that the amendments to subparagraph (ii) of paragraph (a) of subdivision 1 of  section

409-a of the social services law made by section seven of this act shall

not  affect  the  expiration of such subparagraph and shall be deemed to

expire therewith.

 

 

April 13, 2022

 

Appellate Division, First Department

 

Plaintiff failed to demonstrate that child support award, based on a $250,000 income cap, was insufficient to meet the children’s “actual needs” to live an “appropriate lifestyle” as evidence reflected that the parties lived a comfortable upper-middle-class lifestyle and both had significant financial resources to support the use of the cap. Awarding defendant a $291,513.40 credit against future add-on expenses for his overpayment of child support during the pendency of the matter did not violate public policy.

            In Castelloe v Fong, --- N.Y.S.3d ----, 2022 WL 960668, 2022 N.Y. Slip Op. 02190 (1^st Dept.,2022) the Appellate Division affirmed an order which, to the extent appealed from as limited by the briefs, confirmed the Special Referee’s report, awarding plaintiff monthly basic child support of $3,333.33, and, awarded defendant a child support overpayment credit of $291,513.40 against his future share of add-on expenses.

 

            It held that the court providently exercised its discretion in imputing income to the parties. The Referee properly imputed income of $250,000 to defendant based on the cash gifts he received from his parents during the three years preceding the hearing, and omitting earlier gifts used to purchase his current residence and to pay the parties’ legal fees. The Referee properly rejected plaintiff’s contention that additional income should be imputed to defendant based on his earning capacity, given the evidence demonstrating that the 60–year–old defendant was terminated from his job before the marriage and had not worked full-time since 2008, three years before the commencement of this divorce action. Plaintiff presented no expert testimony to establish defendant’s earning capacity at the time of the hearing, and there was no evidence that defendant intentionally diminished his income to avoid his support obligations.

 

            Although plaintiff argued that the Referee relied on an outdated lifestyle analysis in fashioning a child support award and that the award does not capture the economic realities of raising now teenaged children, she failed to demonstrate that the award, based on a $250,000 income cap, was insufficient to meet the children’s “actual needs” to live an “appropriate lifestyle” (Matter of Culhane v. Holt, 28 A.D.3d 251, 252, 813 N.Y.S.2d 400 [1st Dept. 2006]. The trial evidence reflected that the parties lived a comfortable upper-middle-class lifestyle and that both parties had significant financial resources to support the use of a $250,000 cap.

 

            It rejected Plaintiff’s argument that awarding defendant a $291,513.40 credit against future add-on expenses for his overpayment of child support during the pendency of this matter violated public policy because it will effectively extinguish his child support obligation. While public policy forbids offsetting over payments against basic child support, it does not forbid offsetting against add-on expenses. Given that plaintiff had sufficient financial resources at her disposal, it found that defendant was entitled to use any overpayment, retroactive to the agreed-upon date of January 27, 2017, to offset his share of future add-on expenses.

 

 

Appellate Division rejected husband claim that  the wife and her counsel drove up litigation costs, where the Special Referee and the court found both parties caused delays and took intransigent positions that prevented settlement. A Counsel fee award is not based solely on litigation conduct; the paramount factor is financial need.

 

 

 In Rennock v Rennock, 2022 WL 960872 (1^st Dept., 2022) the Appellate Division found that the husband’s arguments concerning maintenance were unavailing. The amount and duration of maintenance is a matter committed to the sound discretion of the trial court and he did  not show that the award to the wife of $2,500 per onth, with such payments to cease in July 2022, when she will be age 66 and able to receive social security benefits, was an abuse of such discretion.

           

            As to the $2,559 per month in child support, the Special Referee’s reliance on the husband’s 2014 income, and the inclusion of capital gains in assessing that year’s income for CSSA purposes, was a provident exercise of discretion. The Special Referee canvassed his income from other years and, as its summary of such income shows, the 2014 income was not the anomaly he claimed it to be. Nor did he show reason to revisit the inclusion of capital gains in the income calculation.

 

            It affirmed the $162,500 counsel fee award (Domestic Relations Law § 237). The husband claimed the wife and her counsel drove up litigation costs, but the Special Referee and the court found both parties caused delays and took intransigent positions that prevented settlement. Further, such award is not based solely on litigation conduct; the paramount factor is financial need a factor whose application here the husband showed no reason to revisit.

 

 

 

Appellate Division, Second Department

 

The child’s fear and anxiety was a sound and substantial basis to limit  parental access with the child to letters, and weekly one-hour telephone or video sessions as consented to by the child.

 

            In Matter of Walker v. Sterkowicz-Walker, --- N.Y.S.3d ----, 2022 WL 960668, 2022 N.Y. Slip Op. 02190 (2d Dept.,2022) after two court-ordered “observation and evaluation” virtual visits between the mother and the child, which were supervised by two licensed social workers, and upon supplemental findings, the court awarded the mother parental access with the child only to the extent of allowing the mother to communicate with the child through written letters either by regular mail or electronically, and by speaking with the child weekly by telephone or by Skype, Zoom, or other electronic video platform for up to one hour, provided that the child consents. The Appellate Division affirmed. It held that the determination of appropriate parental access is entrusted to the sound discretion of the Family Court, and the determination will not be set aside unless it lacks a sound and substantial basis in the record. Here, a sound and substantial basis existed in the record to limit her parental access with the child to letters, and weekly one-hour telephone or video sessions as consented to by the child. The testimony of the father and the child’s therapist as to the child’s fear and anxiety surrounding parental access, the social workers’ observation of physical symptoms of that fear and anxiety in the child, and the therapist’s testimony that visitation between the mother and the child would be “very damaging” to the child, all supported limiting parental access to letters, and to weekly one-hour telephone or video sessions as consented to by the child.

 

 

 

The state issuing a child support order retains continuing, exclusive jurisdiction over its child support orders so long as an individual contestant continues to reside in the issuing state. A state may modify the issuing state’s order of child support only when the issuing state has lost continuing, exclusive jurisdiction

 

            In Matter of Salim v Freeman, --- N.Y.S.3d ----, 2022 WL 1020819 (Mem), 2022 N.Y. Slip Op. 02268 (2d Dept.,2022) the mother and the father were the parents of a child who was born Virginia in 2007. In September 2020, the father commenced a proceeding in New York for child support pursuant to the Uniform Interstate Family Support Act (UIFSA). The Support Magistrate issued a temporary order of support directing the mother to pay child support to the father. The mother moved to dismiss the petition on the ground, among others, in effect, that the Family Court lacked jurisdiction because there was a prior child support order that had been issued by a court in Virginia. The Support Magistrate granted the mother’s motion, dismissed the petition, and vacated the temporary order of support. Family Court, granted the father’s objections and reinstated the temporary order of support. The Appellate Division reversed. It observed that the UIFSA, adopted in New York as article 5–B of the Family Court Act, grants continuing, exclusive jurisdiction over’ a child support order to the state that issued the order (Family Ct Act § 580–205[a]). Under the Full Faith and Credit for Child Support Orders Act and UIFSA, the state issuing a child support order retains continuing, exclusive jurisdiction over its child support orders so long as an individual contestant continues to reside in the issuing state. A state may modify the issuing state’s order of child support only when the issuing state has lost continuing, exclusive jurisdiction . In this context, a “modification” is defined to mean “a change in a child support order that affects the amount, scope, or duration of the order and modifies, replaces, supersedes, or otherwise is made subsequent to the child support order” (28 USC § 1738B[b][8]). Support for the parties’ child was previously awarded to the mother in an order issued by a court within the jurisdiction of Virginia prior to the filing of the father’s petition. Accordingly, his petition was in the nature of a “modification” petition, rather than a “de novo” application. Since the father resided in the Commonwealth of Virginia, that entity retained continuing, exclusive jurisdiction of its child support order, and New York did not have jurisdiction to modify it.

 

           

 

Appellate Division, Third Department

 

 

The amount and duration of a maintenance award will not be disturbed provided that the statutory factors and the parties’ predivorce standard of living are considered. The court need not articulate every factor it considers, but it must provide a reasoned analysis of the factors it ultimately relies upon in awarding or declining to award maintenance.  Findings of fact submitted pursuant to CPLR 4213(a) cannot constitute the decision of the court as mandated by Domestic Relations Law § 236(B)(5)(g).

 

Counsel fees properly denied where wife failed to support her claim by filing a copy of the retainer agreement and a detailed affidavit setting forth the charges incurred.

 

 

In Louie v Louie, --- N.Y.S.3d ----, 2022 WL 959399, 2022 N.Y. Slip Op. 02172 (3^rd Dept.,2022) the Plaintiff (wife) and defendant ( husband) were married in 1975 and had one emancipated child (born in 1976). The parties separated in 2007, and, in 2019, the wife commenced a divorce action. A bench trial was conducted to determine the issues of maintenance, equitable distribution and classification of the assets. Following the trial, Supreme Court adopted the findings of fact and conclusions of law submitted by the husband and issued a judgment of divorce. The judgment distributed the marital assets, directed the sale of certain properties and found that certain financial accounts were the husband’s separate property, but declined to award the wife maintenance or counsel fees.

 

            The Appellate Division noted that the amount and duration of a maintenance award are addressed to the sound discretion of the trial court, and will not be disturbed provided that the statutory factors and the parties’ predivorce standard of living are considered. The court need not articulate every factor it considers, but it must provide a reasoned analysis of the factors it ultimately relies upon in awarding or declining to award maintenance.  Supreme Court wholly adopted verbatim the husband’s proposed findings of fact and conclusions of law, without articulating the factors it considered or providing a reasoned analysis for its rulings on the proposed findings of fact and conclusions of law. Findings of fact submitted pursuant to CPLR 4213(a) cannot constitute the decision of the court as mandated by Domestic Relations Law § 236(B)(5)(g). (Capasso v. Capasso, 119 A.D.2d 268, 269, 506 N.Y.S.2d 686 [1986].

 

            The trial testimony established that this was a 44–year marriage and both parties were retired, with the husband having retired in 1999 and the wife in 2016. The proof demonstrates that the wife earned approximately $31,582 per year and the husband earned approximately $117,000. The wife paid for a family health insurance plan through her former employer, and the husband and the wife also have Medicare. The parties’ predivorce standard of living was very comfortable. Given the lengthy term of the marriage, the significant disparity between the parties’ incomes and the unlikelihood that the wife will be able to close that gap despite her receiving additional assets from the equitable distribution of the marital property, as a majority of the husband’s income is from his separate property, it found that the husband should pay the wife monthly maintenance of $2,1391 for a period of 20 years. With regard to the effective date of the maintenance award, generally, awards are retroactive to the date an action for divorce is commenced. It found that the wife, who requested maintenance in both the summons with notice and the complaint, was entitled to a retroactive award of maintenance to the commencement of the divorce action.

 

            The Appellate Division affirmed the denial of the wife’s request for counsel fees. The record failed to demonstrate that the wife properly supported her claim by filing a copy of the retainer agreement and a detailed affidavit setting forth the charges incurred (see Domestic Relations Law § 237[a]; 22 NYCRR 1400.3). An award of counsel fees requires that an evidentiary basis be established as to two elements: the parties’ respective financial circumstances and the value of the legal services rendered. Although the wife was the less-monied spouse, the record evidence indicating the amount of counsel fees that she expended, without more, failed to furnish a meaningful way to gauge the value of the services rendered.

 

            The Appellate Division rejected the wife’s argument that  Supreme Court erred in characterizing the husband’s funds in his Sterling Bank account and Citibank account as separate property. The husband testified, without contradiction, that he inherited funds from his parents and that he placed those funds in an account in his name only at Sterling Bank. The funds remained in his name, and the funds were never placed in the wife’s name. As to the Citibank account, the husband testified that this account was initially in his mother’s name. The husband’s name was added to the account to assist in paying his mother’s expenses. The wife’s name was never added to the account. Moreover, the wife failed to demonstrate that the account was later transmuted into marital property by commingling the funds.

 

 

           

 The amount and duration of a maintenance award will not be disturbed provided that the statutory factors and the parties’ predivorce standard of living are considered. The court need not analyze and apply each and every factor set forth in the statute, but must provide a reasoned analysis of the factors it ultimately relies upon in awarding maintenance.

 

           

            In Giulilano v Giuliano,--- N.Y.S.3d ----, 2022 WL 959403, 2022 N.Y. Slip Op. 02160 (3d Dept.,2022) Plaintiff (husband) and defendant ( wife) were married in 1993 and had three children (born in 1994, 1998 and 2007). In 2015, the husband commenced the divorce action.

 

            The Appellate Division rejected the wife’s argument that Supreme Court erred in imputing income to her. Income may be imputed based upon a prior employment experience, as well as such person’s future earning capacity in light of that party’s educational background. At trial, the wife testified that she was a registered nurse and that she applied for various full-time nursing jobs. She had worked part time as a nurse but also taught yoga classes. The wife explained that she could not work on a full-time basis because of the needs of the youngest child. The wife’s friend, however, was asked at trial whether the wife made any comment to her to the effect that returning to full-time work would hurt her divorce case, to which the friend responded, “I believe so.” The friend also testified that she did not tell the wife about nursing opportunities because “[t]here was no interest.” The Appellate Division held that although the wife argued that Supreme Court improperly relied on the friend’s testimony in imputing income to her, it was within the province of the court, as the trier of fact, to credit such testimony. Furthermore, the court considered that there was no proof indicating that the wife was not capable of full-time employment as a nurse. In view of the record evidence and taking into account that the court’s credibility determinations are entitled to deference, the court providently exercised its discretion in imputing income to the wife.  Supreme Court did not err in imputing income to her in the amount of $58,000. The court reached this $58,000 amount based upon the wife’s capability of full-time work, her testimony regarding her hourly wage as a nurse and by taking into account a 40–hour work week. Because the court did not abuse its discretion in its calculation of imputed income, would not be disturbed.

 

            The Appellate Division rejected the wife’s challenge to Supreme Court’s determination reducing her maintenance from the presumptive amount to a monthly amount of $450 for a period of three years. The amount and duration of a maintenance award are addressed to the sound discretion of the trial court and will not be disturbed provided that the statutory factors and the parties’ predivorce standard of living are considered. The court need not analyze and apply each and every factor set forth in the statute, but must provide a reasoned analysis of the factors it ultimately relies upon in awarding maintenance. Supreme Court found, and the record confirmed, that the wife was in good health and was capable of economic independence based on her work as a registered nurse and a yoga instructor. The court also considered that the husband paid most of the college expenses for the middle child, as well as medical costs for the middle and youngest children. The court’s decision provided a reasoned analysis for deviating from the presumptive maintenance amount and, therefore, the court’s determination was not disturbed .

 

            The Appellate Division rejected the wife challenges to Supreme Court’s determination reducing the presumptive child support amount to be paid by the husband. The court’s decision reflected that it considered the husband’s contributions to the college expenses and medical costs of the children. Having reviewed the record in its entirety, its determination would not be disturbed.

 

            The wife correctly contended that the reduced maintenance and child support awards should have been retroactively ordered. The matter was remitted for the purpose of determining the amount of retroactive maintenance and child support and the amount of credits, if any, to which the husband is entitled.

 

            The wife took issue with Supreme Court’s determination awarding her 5% of the value of the husband’s business. The wife relied on her testimony that she performed tasks for the business and assisted with administrative and operational matters. The husband, however, offered proof to the contrary as to the wife’s direct contributions to his business. Presented with conflicting proof, the court did not credit the wife’s testimony, and no basis existed to disturb its credibility determination.. As to the wife’s indirect contributions, the court noted, and the evidence discloses, that the wife cared for the children and contributed to the overall household income while the husband worked. Upon review of the record it held that the wife should have been awarded 15% of the value of the husband’s business

 

 

In light of the determination on appeal that the order was not entered upon respondent’s default, respondent’s failure to move to vacate the default finding did not preclude his appeal.

 

 

In the Matter of David VV., v. Alison., --- N.Y.S.3d ----, 2022 WL 959420, 2022 N.Y. Slip Op. 02165 (3d Dept.,2022) Petitioner and the attorney for the child argued that the appeal in this termination of parental rights proceeding had to be dismissed because the challenged order was entered upon respondent’s default. The Appellate Division disagreed and  found that under the circumstances Family Court abused its discretion in holding respondent to be in default. The order was reversed and the matter remitted for a new fact-finding hearing on the issue of abandonment. In light of the determination that the order was not entered upon respondent’s default, respondent’s failure to move to vacate the default finding did not preclude his appeal.

 

 

A modification of maintenance pursuant to Domestic Relations Law § 236(B)(9)(b)(1) is generally not appropriate where one spouse has the present ability to obtain higher paying employment, but brings about a reversal of financial condition by the spouse’s own actions or inactions.

            In Hickman v Hickman, --- N.Y.S.3d ----, 2022 WL 1037788, 2022 N.Y. Slip Op. 02318 (3d Dept.,2022) Plaintiff ( wife) and defendant (husband) were divorced in 2012. The parties’ divorce judgment required the husband to pay the wife spousal maintenance of $50,000 per year (or approximately $4,167 per month) for five years, as well as child support for their two children. In May 2020, after the maintenance obligation had terminated, the wife moved to modify the maintenance provision of the divorce judgment pursuant to Domestic Relations Law § 236(B)(9)(b)(1), seeking spousal maintenance of $7,000 per month. Supreme Court denied the wife’s motion. The Appellate Division affirmed. It pointed out that  Domestic Relations Law § 236(B)(9)(b)(1) provides that a court in a matrimonial action may modify a maintenance award of any prior order or judgment made after trial “upon a showing of the payee’s inability to be self-supporting or upon a showing of a substantial change in circumstance, including financial hardship.” The party seeking the modification of a maintenance award has the burden of establishing the existence of the change in circumstance that warrants the modification”. Determining whether a substantial change has occurred and the extent of relief occasioned by such a change are matters addressed to the discretion of the trial court, with each case turning on its particular facts. A modification is generally not appropriate where one spouse has the present ability to obtain higher paying employment, but brings about a reversal of financial condition by the spouse’s own actions or inactions. A hearing is not required on a maintenance modification application unless the movant makes a prima facie showing of entitlement to a modification and demonstrates the existence of genuine issues of fact regarding a substantial change in circumstance. In the divorce judgment and the decision upon which it was based, Supreme Court imputed annual income of $55,000 to the wife. The court acknowledged that she had ceased full-time employment to be a mother and homemaker for 14 years during the marriage. However, the court noted, based on her education and prior work experience, that she was qualified and capable of obtaining employment and, although it might take some time, she could work toward self-sufficiency during the five-year duration of ordered maintenance payments. The court also noted that the wife had been aware of the divorce proceedings and her need to support herself for several years at that time, but had not yet taken steps leading to her return to self-sufficiency, had not engaged in serious efforts to find employment, and appeared to lack interest in returning to the workforce. Accepting as true the wife’s assertions in her application for modification, she applied for more than 100 jobs over 18 months, finally being offered one position with an annual salary of $40,000. After 15 months in that position, which had work hours from 9:00 a.m. to 5:00 p.m., she quit her job because she felt that she needed more flexibility to transport her children, then both teenagers, to after school activities. The wife then purchased a nonmedical home care business, despite having no experience in that field. The business experienced net losses each year, and she lacked capital to advertise and market its services. The wife avers that she unsuccessfully continued to look for jobs and tried to sell the business. Due to the expenses of the marital residence, the wife agreed to sell it earlier than required by the divorce judgment. Using some of the money from that sale along with a large mortgage, she purchased a spacious, expensive house, just five months before the maintenance payments were scheduled to cease.

 

            The Appellate Division held that although the record demonstrated that the husband’s income increased significantly after the divorce, that is not determinative and does not necessarily present a substantial change in circumstance warranting a modification to increase maintenance. The wife was not required to show a change in circumstance that was unexpected, but she was required to establish a substantial change in circumstance or an inability to support herself. The record supported the conclusion that the wife’s behavior was at least partially responsible for her current financial situation, considering that she voluntarily left her job, purchased a house beyond her means and, contrary to advice from professionals, purchased a business that resulted in no profit. Despite some proof of her 18–month job search before gaining employment, the wife did not demonstrate that she was unable to find employment after quitting that job or discovering that her business was unprofitable. As the wife failed to make a prima facie showing of an inability to be self-supporting or a substantial change in circumstance that would warrant reinstating spousal maintenance, she was not entitled to a hearing on her application.

 

 

Although only 1 month passed between the custody  order and the father’s modification petition, the mother’s attempted suicide and her being pushed down a flight of stairs by her boyfriend while the child was in her care, reflected a change in circumstances that warranted a review of the custodial arrangement 

 

            In Matter of Devin W, --- N.Y.S.3d ----, 2022 WL 1037792, 2022 N.Y. Slip Op. 02316 (3d Dept.,2022) Petitioner ( father) and respondent ( mother) were the parents of a daughter (born in 2016). Pursuant to an order entered upon consent in January 2019, the parties were awarded joint custody of the child, with the child being placed with the mother during the week and with the father from 6:00 p.m. on Friday to 7:00 p.m. on Monday. In February 2019, the father filed a modification petition seeking sole physical custody of the child due to the mother’s mental and physical health issues. Family Court issued a December 2019 decision finding that the mother’s January 2019 suicide attempt and her involvement in a domestic violence incident constituted a change in circumstances that warranted revisiting the custodial arrangement. The court further found that the best interests of the child lie in awarding the father physical placement of the child and the mother supervised visitation. Family Court contemporaneously issued an order awarding the parties joint legal custody of the child, the father primary physical placement and the mother supervised visitation on alternating weekends, a week in the summer and as agreed by the parties. The Appellate Division affirmed. It held that although little time had passed between the stipulation that led to the January 2019 order and the father’s February 2019 modification petition, the mother’s own testimony reflected that, shortly after the parties had agreed to the terms of that order, she attempted suicide and was pushed down a flight of stairs by her then-boyfriend during a domestic dispute that occurred while the child was in her care, those developments reflected a change in circumstances that warranted a review of what custodial arrangement would be in the child’s best interests. Although the inquiry into whether a “change in circumstances has occurred should be limited to occurrences since the date of the prior custody order, a best interests inquiry is broader and may include other facts that give the court a view of the totality of the circumstances and family dynamics, including proof that relates to either party’s fitness as a parent”

 

 

March 30, 2022

 

 

Appellate Division, First Department

Confidential mental health records may only be disclosed upon a finding that the interests of justice significantly outweigh the need for confidentiality. Under Family Court Act § 1038(d) the court must conduct a balancing test to weigh the need of the moving party for the discovery against any potential harm to the child

 

             In Matter of Briany T., 202 A.D.3d 408, 161 N.Y.S.3d 79, 2022 N.Y. Slip Op. 00629 (1^st Dept.,2022) Respondent sought  disclosure of records relating to the prior and current mental health treatment of the 13–year–old child who reported that he sexually abused her, claiming that those records are material and necessary to his defense that the child is fabricating her allegations. The Appellate Division held that confidential mental health records may only be disclosed upon a finding by a court that “the interests of justice significantly outweigh the need for confidentiality” (Mental Hygiene Law § 33.13[c][1]). Pursuant to Family Court Act § 1038(d), the court must conduct a balancing test to weigh “the need of the [moving] party for the discovery to assist in the preparation of the case” against “any potential harm to the child [arising] from the discovery”.  It held that although a close question, given respondent’s need to prepare his defense, his right to impeach the child’s credibility as she was likely to be a witness, and the child’s diminished interest in the confidentiality of older records from an institution that was not currently providing services to her, an in camera review of the NYP records was warranted (Matter of Dean T., Jr., 117 A.D.3d at 492, 985 N.Y.S.2d 518). It remanded the matter to the Family Court to review the child’s mental health records from NYP in camera to determine whether there was any information in those records that tended to support respondent’s defense that the child had previously made a false allegation when she was approximately four years old and had  underlying mental health issues relating to the earlier disclosure.

 

 

 

Default judgment of divorce vacated where husband’s absence was likely attributable to his mental health and there should have been an inquiry into whether a guardian ad litem was necessary.

 

In Richard v Buck, --- N.Y.S.3d ----, 2022 WL 903740 (1^st Dept.,2022) the Appellate Division reversed a Judgment that was entered in this divorce proceeding after the husband, pro se, failed to appear for an inquest. At the time of the inquest, both the wife and supreme court were aware that the husband had been diagnosed with a significant mental health condition, which resulted in episodes during which the husband was demonstrably unable to care for himself or otherwise protect his interests. At the conclusion of the inquest, the court explicitly acknowledged that the husband’s absence was likely attributable to his mental health. Thus, before entering judgment upon the husband’s default, there should have been an inquiry into whether a guardian ad litem was necessary. Because there was no inquiry, the judgment was vacated and the matter remanded for further proceedings, including, if necessary, an inquiry into the husband’s current capacity.

 

 

Appellate Division, Second Department

Pendente lite maintenance properly denied  without prejudice here wife  failed to submit  statement of net worth

 

            In Yin v.  Qiao, --- N.Y.S.3d ----, 2022 WL 791392 (Mem), 2022 N.Y. Slip Op. 01839 (2d Dept.,2022) the Appellate Division held, among other things, that  the Supreme Court properly denied that branch of plaintiff’s motion which was for an award of pendente lite maintenance, without prejudice, because she failed to attach a statement of net worth to her motion papers (see 22 NYCRR 202.16[k][2]; Barton v. Barton, 137 A.D.3d 723, 724, 27 N.Y.S.3d 572).

 

 

 

Supreme Court improvidently exercised its discretion in awarding the defendant husband, who was the monied spouse, attorney’s fees where the plaintiff’s motion was not so lacking in merit as to justify such an award. Award of prospective sanctions on the plaintiff in future litigation improvident exercise of discretion.

 

            In Assad v Assad, 200 A.D.3d 831, 161 N.Y.S.3d 92, 2021 N.Y. Slip Op. 06978 (2d Dept., 2021) the parties were divorced by judgment dated September 13, 2016, which incorporated, but did not merge, a stipulation of settlement of the parties dated January 29, 2016. Pursuant to the stipulation of settlement, the parties shared joint legal custody of their three children, with primary residential custody to the plaintiff and a parental access schedule for the defendant. The stipulation also provided that the plaintiff was prohibited from relocating with the children outside of New York City without prior written consent of the defendant, or court order. On June 16, 2020, the plaintiff moved, inter alia, to modify the stipulation of settlement to permit her to relocate with the children to Texas, or in the alternative, to upwardly modify the defendant’s child support obligation and award her sole custody of the children. The defendant cross-moved for an award of attorney’s fees. In an order entered January 4, 2021, the Supreme Court, inter alia, denied, without a hearing, those branches of the plaintiff’s motion, granted that branch of the defendant’s cross motion to the extent of awarding him attorney’s fees of $5,000, and, sua sponte, enjoined the plaintiff, absent an emergency, from instituting further actions or filing motions without first obtaining written leave of the court, and directed that if the plaintiff attempted to re-litigate the same issues in the future, sanctions would be imposed against her for the defendant’s full costs and fees of defending the action.

 

            The Appellate Division held that Supreme Court properly denied the plaintiff’s motion to permit her to relocate with the children to Texas or to award her sole custody of the children. However, the Supreme Court erred in summarily denying the plaintiff’s motion which was to modify the stipulation of settlement to upwardly modify the defendant’s child support obligation. Since the parties did not opt out of the provisions of Domestic Relations Law § 236(B)(9)(b)(2)(ii), the plaintiff was not obligated to demonstrate a substantial change in circumstances where, as here, she demonstrated that three years had passed since the last order concerning child support was entered Moreover, the plaintiff also demonstrated that the defendant’s gross income had increased by 15% or more during that time.

 

            The Appellate Division also held that a  court has the authority to award an attorney’s fee in custody proceedings when warranted under the circumstances of the case (see Domestic Relations Law § 237[b]). Here, the Supreme Court improvidently exercised its discretion in awarding the defendant attorney’s fees. The plaintiff’s motion did not attempt to re-litigate previously waived claims, and it represented the plaintiff’s first request for permission to relocate, sole custody of the children, and an upward modification of the defendant’s child support obligation since the judgment of divorce was entered in 2016. Moreover, the defendant was  the monied party and the plaintiff’s motion “was not so lacking in merit as to justify such an award.”

 

            For similar reasons, the Supreme Court improvidently exercised its discretion in enjoining the plaintiff, absent an emergency, from instituting further actions or filing motions without first obtaining written leave of the court and in imposing prospective sanctions on the plaintiff in future litigation.

 

 

 

Both voluntary child support payments which were made prior to a pendente lite order and payments made pursuant to a pendente lite order may be credited toward a party’s retroactive child support. 

 

            In Ford v Ford, 200 A.D.3d 854, 161 N.Y.S.3d 103, 2021 N.Y. Slip Op. 06988

(2d Dept., 2021) the  parties were married in 1998, and had three children. The plaintiff commenced an action for a divorce on May 4, 2012. On March 6, 2013, the plaintiff moved for pendente lite relief. In an amended order dated August 2, 2013, the Supreme Court directed the defendant, inter alia, to continue to pay to the plaintiff unallocated maintenance and child support and to pay 100% of various carrying charges on the marital residence, which was in the plaintiff’s exclusive use and occupancy in accordance with a stipulation of the parties and awarded the plaintiff interim counsel fees of $3,000. On December 15, 2016, the parties entered into a stipulation of settlement in which they agreed, inter alia, to the defendant’s prospective child support obligation. The parties agreed to submit to the court for determination the issues of retroactive child support and additional counsel fees on behalf of the plaintiff. A judgment of divorce was entered April 26, 2017. The Appellate Division held, inter alia, that a party is entitled to a credit for any amount of temporary child support already paid as well as for carrying charges on the marital home. Both voluntary child support payments which were made prior to a pendente lite order and payments made pursuant to a pendente lite order may be credited toward a party’s retroactive child support.  It noted that payments made by the defendant toward counsel fees on behalf of the children do not constitute basic child support.           

Petitioner deprived of her statutory right to counsel where  Family Court failed to conduct a searching inquiry of the petitioner to ensure that her waiver of her right to counsel was knowing, intelligent, and voluntary. Court’s determination, after brief questioning of the petitioner, did not constitute a hearing to determine subject matter jurisdiction.

 

 

In Matter of Minor v Birkenmeyer, 200 A.D.3d 1044, 161 N.Y.S.3d 209, 2021 N.Y. Slip Op. 07546 (2d Dept.,2021)  the petitioner commenced a family offense proceeding against the respondent, with whom she alleged she had resided in the past. At the initial court appearance, the Family Court advised the petitioner that she had a right to counsel, that “[h]aving an attorney can be helpful” but that having an attorney “is not something that we force people to do.” The court advised the petitioner that it could give her time to consult with or hire an attorney or that the petitioner could ask the court to determine if the petitioner would be eligible to have an attorney assigned to represent her at no cost. The court also informed the petitioner that she also had the right to represent herself and inquired if, for purposes of the proceedings that day, she wanted to be represented by counsel. The petitioner responded, “[f]or today’s purposes no I don’t think so.” The court then asked the petitioner several questions about the petitioner’s relationship with the respondent. Thereafter, in an order dated January 13, 2021, the Family Court dismissed, with prejudice, the proceeding for lack of subject matter jurisdiction. The Appellate Division reversed. It held that a  party in a proceeding pursuant to Family Court Act article 8 has the right to be represented by counsel.  Family Court failed to conduct a searching inquiry of the petitioner to ensure that her waiver of her right to counsel was knowing, intelligent, and voluntary. Thus, the petitioner was deprived of her statutory right to counsel. It also held that the Family Court also should have conducted a hearing prior to determining that it lacked subject matter jurisdiction on the ground that the parties did not have an intimate relationship within the meaning of Family Court Act § 812(1)(e). The court’s determination, after brief questioning of the petitioner, without affording the petitioner the opportunity to testify or proffer any evidence as to whether the relationship she had with the respondent constituted an intimate relationship within the meaning of Family Court Act § 812(1)(e), did not constitute a hearing. It remitted the matter to the Family Court for a hearing to determine whether the Family Court had subject matter jurisdiction and for further proceeding, if warranted. It directed that upon remittitur, the court must conduct an appropriate inquiry as to whether the petitioner wishes to waive her right to counsel.

 

         

 

Appellate Division, Third Department

 

 

Parents retain the right to make certain medical decisions for their children in foster care.Appellate Division establishes standard for determining if children in foster care can have covid-19 vaccine despite objection by parent.  

 

In Matter of Athena Y., 201 A.D.3d 113, 161 N.Y.S.3d 335, 2021 N.Y. Slip Op. 06908 (3d Dept.,2021)  Petitioner commenced a proceeding in August 2020 alleging that respondent neglected her four children. In February 2021, petitioner effected an emergency removal of the children and placed them in foster care. In response to respondent’s motion for their return, Family Court held a hearing and denied that motion. Several months later, the attorney for the children (AFC) informed Family Court that the two oldest children, then 13 and 15 years old, wished to receive the COVID–19 vaccine, but respondent did not consent. In response to the court’s request for the parties’ positions, the AFC, petitioner and the children’s father all submitted letters in support of allowing the children to be vaccinated, while respondent opposed the vaccination. After reviewing the parties’ submissions, Family Court held that the children had the right to decide whether to receive the COVID–19 vaccine and ordered that they shall be given the vaccine if they still consent.

           

            The Appellate Division reversed. It held that parents have a fundamental right to raise their children in the manner they choose, subject to the state’s ability to intervene to protect children in narrow circumstances. By statute, the right to make health care decisions for oneself belongs to anyone at least 18 years old. Under common law, parents generally have the right to make health care decisions for their minor children, though some exceptions exist, such as for emergency situations. Even when the state intrudes on a family by obtaining a temporary order of custody due to abuse or neglect, “parents retain the right to make certain medical decisions for their children in foster care,” up until the moment that parental rights are terminated. Family Court determined that the situation is “similar to reproductive health services for children in foster care,” as governed by regulations permitting children ages 12 and older to make their own decisions after being informed about such relevant services (see 18 NYCRR 463.1, 463.2[b]). The Appellate Division held that Respondent was entitled to a hearing before Family Court issued an order authorizing vaccination of the children. Due process generally requires notice and an opportunity to be heard before medical treatment is imposed upon a patient by court order (see Matter of Fosmire v. Nicoleau, 75 N.Y.2d 218, 224, [1990]), but the opportunity to be heard does not always require a formal procedure. Family Court gave the parties notice that it was considering the AFC’s request and directed the parties to submit their positions to the court in writing, thus providing some limited opportunity to be heard. Having reviewed those submissions, the court rendered its decision. The court made specific findings that the subject children “have been fully informed regarding COVID–19 and the vaccine” and that they “have the capacity to consent.” These factual findings were made without evidence and based solely on hearsay, through unsworn letters containing representations by counsel. This did not constitute a sufficient basis to support these findings. At such a hearing, the court must focus on whether respondent’s refusal to authorize vaccination constitutes “an acceptable course of medical treatment for [her] child[ren] in light of all the surrounding circumstances,” while heeding the Court of Appeals’ cautionary point that courts cannot “assume the role of a surrogate parent” (Matter of Hofbauer, 47 N.Y.2d at 656). As the Office of Children and Family Services’ guidance documents prohibit local agencies from administering a COVID–19 vaccine if the child refuses to consent, the hearing must address whether the subject children have been fully informed about COVID–19 and the vaccine and whether they have the capacity to consent. After the hearing, the court must carefully balance the risks and benefits of the potential vaccination to decide whether to authorize it for the subject children). It remitted for Family Court to promptly conduct a hearing on the issue, applying this standard.

 

 

 

Where all parties were in agreement that there was no concern over equitable estoppel and that a genetic marker test as to respondent should be ordered  Family Court exceeded its authority by ordering that another party should be named respondent in this proceeding. A court cannot, on its own initiative, add or direct the addition of a party.

 

 

            In the Matter of Schenectady County Department of Social Services on Behalf of Desiree CC v. Noah DD.,200 A.D.3d 1509, 161 N.Y.S.3d 442, 2021 N.Y. Slip Op. 07587 (3d Dept.,2022) nine months prior to the child’s January 2017 birth, Petitioner  was in a sexual relationship with respondent, and the two resided together in North Carolina. She entered into a relationship with Rory EE., a resident of New York, in November 2017, when the child was 10 months old. About four months later, petitioner filed an application on behalf of the mother against respondent seeking an order of filiation. By January 2019, after the child had just turned two years old, all parties were in agreement that there was no concern over equitable estoppel in this matter and that a genetic marker test as to respondent should be ordered (see generally Family Ct Act § 532[a]). Family Court nonetheless determined that a hearing and written findings as to equitable estoppel were required before a test could be ordered and it subsequently added Rory EE. as a named respondent in this proceeding. The Appellate Division held Family Court exceeded its authority by adding him. Although a court may raise the absence of a necessary party at any stage of the proceedings upon its own motion a court cannot, on its own initiative, add or direct the addition of a party. Rather, the court may only summon a person who should be joined, if the court has jurisdiction over the person; if jurisdiction over the person can be obtained only by his or her consent or appearance, the court must determine whether the proceeding should be permitted to proceed in that person’s absence. Family Court plainly did not have the authority to make Rory EE. a named party to this proceeding. . Family Court  also failed to obtain jurisdiction over Rory EE. No petition or summons, or supplemental summons, was filed against or served upon him (see Family Ct Act §§ 522–525), no party  moved to add him as a necessary party and there was no stipulation to that end (see CPLR 1003), and he had not appeared before Family Court or otherwise consented to the court’s jurisdiction (see CPLR 320[b]). It reversed and remitted for further proceedings, “at which time the parties remain free to move for or stipulate to Rory EE. being added as a necessary party, or not, and, absent such a motion or stipulation, and if his joinder is deemed to be necessary, the court is limited to directing that reasonable efforts be made to join him as a party or considering whether this matter should proceed in his absence (see CPLR 1001)”.

 

 

 

Enforcement of a post-adoption contact agreement will only be ordered if it is determined to be in the child’s best interests                             

 

          In Matter of Jennifer JJ., v. Jessica JJ., 2022 WL 867119 (3d Dept.,2022) the Appellate Division pointed out that pursuant to Domestic Relations Law § 112–b (4), birth parents and adoptive parents may enter into a legally enforceable agreement regarding post-adoption contact that may thereafter be enforced by filing a petition in Family Court. It held that enforcement of a post-adoption contact agreement will only be ordered if it is determined to be in the child’s best interests. The hearing court’s determination of best interests will only be disturbed if it lacks a sound and substantial basis in the record.

 

A former judge is automatically prohibited, as a matter of law, from acting as an attorney in any action, claim, matter, motion or proceeding, which has been before him or her in his or her official character.

 

           In Corey O v Angela P, 2022 WL 867063 (3d Dept.,2022) the Appellate Division affirmed an order which awarded the parties joint legal custody of the children with the father having primary physical custody and the mother having parenting time. The Appellate Division observed that the attorney for the children ( AFC) was previously a judge who, in 2014, decided a custody case involving the mother her. It noted that a former judge is automatically prohibited, as a matter of law, from acting as an attorney “in any action, claim, matter, motion or proceeding, which has been before him [or her] in his [or her] official character” (Judiciary Law § 17). Here, the custody case neither involved the subject children nor the subject children’s father. It was an entirely separate proceeding involving different children and a different father. The mother did  not allege any factual ties between these underlying proceedings and the prior custody case. The only common tie between them was that the mother was a litigant. Only the mother, and not her present custody claim over the subject children, had been before the AFC during his tenure as a judge.  Although not explicitly clear from the record, the mother’s fitness as the custodial parent presumably was an issue presented in her prior custody case. It was also an issue present here. Equating a discrete issue with a “matter” provided in Judiciary Law § 17, however, impermissibly stretches the meaning of “matter” such that it does not comport with “action, claim, ... motion or proceeding” – the other terms in Judiciary Law § 17. Moreover, in view of the jurisdiction of Family Court and the particular cases such court hears, a party’s fitness as a custodial parent frequently arises as an issue whether directly or indirectly. By giving an expansive view to “matter,” the AFC, a former Family Court judge who had presided over countless proceedings in the past, would be disqualified from representing any party in any future case where another party in such case was previously before the AFC in one of those past proceedings, a result that would occur without regard to the nature of either the past proceeding or future case. It held that based on the circumstances of this case, neither a new hearing nor automatic disqualification of the AFC under Judiciary Law § 17 was  required.

 

 

Appellate Division, Fourth Department

 

 

The costs of providing suitable housing, clothing and food for  child do not qualify as extraordinary expenses so as to justify a deviation from the presumptive child support amount. Entertainment, including sports, is not an extraordinary visitation expense for purposes of calculating child support.

 

            In Matter of Livingston County Support Collection Unit on behalf of Yusko v.  Sansocie, --- N.Y.S.3d ----, 2022 WL 819070, 2022 N.Y. Slip Op. 01914 (4^th Dept., 2022)  there was a shared custody arrangement in which the father was the primary custodial parent. The Support Magistrate determined that, because the children spent approximately 50% of the parenting time with the mother and because the mother incurred expenses for the children’s “food, clothing, shelter, utilities, cell phones, transportation[,] and extracurricular activities” during the times they were with her, she should be granted a variance from the presumptive support obligation. That was error. Although “extraordinary expenses incurred by the non-custodial parent in exercising visitation” with a child not on public assistance may support a finding that the presumptive support obligation is unjust or inappropriate (Family Ct Act § 413 [1] [f] [9] [I]), “[t]he costs of providing suitable housing, clothing and food for [a child] during custodial periods do not qualify as extraordinary expenses so as to justify a deviation from the presumptive amount”, “nor is the cost of entertainment, including sports, an extraordinary visitation expense for purposes of calculating child support”. The Appellate Division concluded that the Support Magistrate’s determination “was merely another way of [improperly] applying the proportional offset method” which has been rejected. It remitted the matter to Family Court for a determination of respondent’s support obligation upon an adequate record.

 

 

 

Family Court

 

 

Family Court holds that attorneys can recoup fees that are expended while attempting to recover counsel fees in family offense proceedings

 

 

            In Matter of a Custody/Visitation Proceeding Article 8 of the Family Court Act M. M., v. A. A., .74 Misc.3d 202 (Fam Ct, 2021) Respondent was a physician who earned upwards of $300,000 a year. Petitioner was a stay-at-home mother who does not have an independent source of income. Petitioner commenced a family offense proceeding which resulted in a stipulated final order of protection. Petitioner’s counsel brought a motion for legal fees in excess of $40,000 dollars pursuant to Family Court Act § 842 (a) and (f). The Court granted the motion in part. It noted that Family Court Act § 842(f) states that if an order of protection is either obtained or enforced, the wrongdoer may be required “to pay the reasonable counsel fees and disbursements involved in obtaining or enforcing the order of the person who is protected by such order.” See Family Court Act § 842(f).  The Family Court Act is silent as to whether attorneys can recoup additional fees that are expended while attempting to recover underlying counsel fees, and there is a very limited body of case law which addresses “fees for fees” in family offense proceedings. However ,the Court of Appeals has held that they are authorized. (O'Shea v O'Shea, 93 NY2d 187, 193 (1999)). It explained that the Parties’ respective financial positions are a threshold consideration in determining whether to award attorney’s fees. Other factors to be considered are “the nature and extent of the services rendered, the complexity of the issues involved, and counsel’s experience, ability, and reputation.”  Thereafter, the court must determine the “reasonable” value of the services provided through an evidentiary hearing. The court can consider the same factors used in determining whether legal fees should be awarded when assessing their reasonable value and total amount to be paid. In utilizing its discretion regarding the total amount of legal fees  to be paid, the court should assess facts, including the parties’ finances, relative to each other. For instance, in a fee hearing involving a more monied Respondent father, the same factors which support an award of counsel fees also militate against granting the mother’s request that respondent be responsible for her entire fee.

 

March 16, 2022

 

 

Residence means living in a particular locality, even if a person does not intend to make that place a fixed and permanent home, i.e., a domicile. A person’s ‘residence’ entails something more than temporary or physical presence, with some degree of permanence and an intention to remain. To consider a place a residence, he must stay there for some length of time and have the bona fide intent to retain the place as a residence with at least some degree of permanency. Sheltering in place in a seasonal home did not create a sufficient degree of permanence to establish residency at that location

 

            In Matter of Fisch v Davidson, --- N.Y.S.3d ----, 2022 WL 697403, 2022 N.Y. Slip Op. 01442 (2d Dept.,2022)  the parties to this divorce action primarily resided in New York County, while maintaining a seasonal second home in Suffolk County. In March 2020, when the COVID-19 pandemic first reached New York City, the defendant retreated to the Suffolk County residence along with her pregnant and immunocompromised daughter and began spending more time there in order to assist the daughter during the pregnancy and after the child’s birth. In August 2020, the plaintiff commenced this action for a divorce in Suffolk County, on the ground that the parties were residents of Suffolk County. The defendant moved pursuant to CPLR 510 and 511 for a change of venue, and the Supreme Court denied the motion. The Supreme Court denied the defendant’s motion. The court concluded, inter alia,  that Suffolk County was a proper venue pursuant to CPLR 503(a) and 510(1) because the defendant was a resident of Suffolk County.  The Appellate Division reversed. It held that under the circumstances of this case sheltering in place in a seasonal home did not create a sufficient degree of permanence to establish residency at that location. It held that because the parties’ stays in Suffolk County were only seasonal and temporary  neither of them were residents of Suffolk County at the time of the commencement of the action. Because Suffolk County was not a proper venue, the Supreme Court should have granted the defendant’s motion pursuant to CPLR 510 and 511 to change the venue of the action from Suffolk County to New York County.

 

       In its analysis the Appellate Division observed that CPLR 510(1) provides that the court, upon motion, may change the place of trial of an action where the county designated for that purpose is not a proper county. CPLR 503(a) provides that except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced.  The leading Court of Appeals case on the issue of the meaning of “reside” is Yaniveth R. v. LTD Realty Co. (27 NY3d 186).  In that case, the Court of Appeals concluded that a child who did not live in the subject apartment but spent approximately 50 hours per week there with a caregiver did not “reside” in the apartment In doing so, the Court of Appeals reviewed, among other things, venue cases interpreting CPLR 503(a) and its predecessor, and synthesized from them the following definition of “residence”: “[r]esidence means living in a particular locality, even if a person does not intend to make that place a fixed and permanent home, i.e., a domicile…. [A] person’s ‘residence’ entails something more than temporary or physical presence, with some degree of permanence and [an] intention to remain. Thus, [a]lthough it is true that a person may have more than one residence[,]…to consider a place as such, he [or she] must stay there for some length of time and have the bona fide intent to retain the place as a residence with at least some degree of permanency”.

         This Court has held that “[r]esidence requires more stability than a brief sojourn for business, social or recreational activities.” Thus, in Doe v. Hall (36 AD3d 651), the Court held that the affidavit of the plaintiff’s son, who stated that at the time of the commencement of the action the plaintiff maintained a residence at her son’s apartment in Queens County and would “reside” there when she came back to Queens County during holidays and other times, was insufficient to establish that the plaintiff resided in Queens County at the time the action was commenced.  Similarly, in Stern v. Epstein (29 AD3d 778), this Court held that the plaintiffs’ use of their medical office in Kings County to sleep over for convenience a couple of nights a week did not render them residents of Kings County for venue purposes. And in Katz v. Siroty (62 AD2d 1011), the plaintiff, whose primary residence was in Scarsdale, retained the exclusive use of a bedroom in his sister and brother-in-law’s home in Brooklyn, where he slept between 50 and 100 times per year when he visited his Manhattan law office or when he had to see people in localities such as Patchogue, Long Island. This Court concluded that the plaintiff’s “occasional use of a bedroom in his sister and brother-in-law’s home when he transacts business in the New York metropolitan area does not support his contention that he has a second residence in Brooklyn”.

 

            This case presented two issues relating to the parties’ residence: (1) whether the parties’ seasonal use of the Southampton house on weekends prior to March 2020 made them residents of Suffolk County; and (2) whether the defendant’s retreat to the Southampton house at the outset of the COVID-19 pandemic made her a resident of Suffolk County. The Appellate Division concluded that neither of these things made the parties residents of Suffolk County.  The defendant clearly established that the parties primarily resided in New York County. The defendant submitted, among other things, copies of: the parties’ income tax returns, listing their address in New York County as their residence and reflecting their payment of New York City income taxes; the defendant’s voter registration showing that she was registered to vote in New York County; the defendant’s driver license listing her address in New York County; motor vehicle records showing that the parties’ cars were all registered in New York City or were in the process of having the registration transferred from New Jersey to New York City; an email from the plaintiff to the parties’ art insurance carrier stating that the parties did not have any intention of adding any art to the Southampton house; and bank statements listing the Beresford apartment and the plaintiff’s Manhattan office as the parties’ addresses.
    

         Although a person may have more than one residence, the defendant demonstrated that neither party resided in Suffolk County at the time of the commencement of the action.  With respect to the parties’ use of the Southampton house prior to 2020, the Appellate Division observed that  a highly instructive case was  Daley v. Daley (257 AD2d 593) which held that a seasonal residence was not sufficient to establish a party’s residency for venue purposes, at least where the party frequently resided in another location during the workweek. Here, in her affidavit submitted in support of her motion, the defendant averred that prior to 2020, the Southampton house was only used by the parties on weekends in the summertime, with limited exceptions, and that the only time the parties stayed in the Southampton house outside of the summer season was a few days over the Christmas holiday break in 2018. The plaintiff’s affirmation submitted in opposition to the motion does not contain anything disputing these averments. Since it was undisputed that, prior to 2020, the parties only stayed in the Southampton house on weekends in the summer, with limited exceptions, contrary to the plaintiff’s contention, neither party resided in Suffolk County at any time prior to 2020.

 

            Contrary to the Supreme Court’s conclusion, the time the defendant spent in the Southampton house in 2020 during the COVID-19 pandemic was not enough to make her a resident of Suffolk County. Although the defendant retreated to the Southampton house in March 2020, it was  undisputed that the defendant planned only to stay there temporarily to assist her immunocompromised daughter and newborn grandchild when the COVID-19 pandemic was at its zenith in New York City. Under the circumstances of this case, the defendant did not have the bona fide intent to retain [Suffolk County] as a residence with at least some degree of permanency (See Yaniveth R. v. LTD Realty Co., 27 NY3d at 193 ; Morreale v. 105 Page Homeowners Assn., Inc., 64 AD3d at 690; see also Ray-Ollenu v. Kaufman Mgt. Co., 107 AD3d 476; Sibrizzi v. Mount Tom Day School, 155 AD2d at 338).

 

 

 

A party seeking a downward modification of an unallocated order of child support based on the emancipation of one of the children has the burden of proving that the amount of unallocated child support is excessive based on the needs of the remaining children.

 

            In Matter of Gerety v Gerety, --- N.Y.S.3d ----, 2022 WL 697433, 2022 N.Y. Slip Op. 01455 (2d Dept.,2022) the Appellate Division held that the party seeking modification of an order of child support has the burden of establishing the existence of a substantial change in circumstances warranting the modification. In determining whether there has been a change in circumstances warranting modification of a parent’s child support obligation, the court must consider several factors, including the increased needs of the children, the increased cost of living insofar as it results in greater expenses for the children, a loss of income or assets by a parent or a substantial improvement in the financial condition of a parent, and the current and prior lifestyles of the children. 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 sought to be modified was issued. In addition, a party seeking a downward modification of an unallocated order of child support based on the emancipation of one of the children has the burden of proving that the amount of unallocated child support is excessive based on the needs of the remaining children.

 

 

Not an abuse of discretion to refuse to appoint an AFC where child was less than one year old at the time and  would have been unable to express his wishes to an AFC

 

 

            In Matter of Santana v Barnes, --- N.Y.S.3d ----, 2022 WL 731173 (Mem), 2022 N.Y. Slip Op. 01634 (4^th Dept., 2022) a custody and visitation proceeding the Appellate Division rejected the mother’s contention that the court erred in failing to appoint an attorney for the child (AFC). The determination whether to appoint an AFC in a custody and visitation proceeding is discretionary. Although a court may appoint an AFC on its own motion it held that, given that the child was less than one year old at the time and thus would have been unable to express his wishes to an AFC, the court did not abuse its discretion in not appointing an AFC.

 

 

March 9, 2022

 

 

Revised Forms Released

 

Revised Forms for Use in Matrimonial Actions in Supreme Court were adopted effective March 1, 2022. These revisions reflect the required statutory adjustment on March 1, 2022 of the combined income cap under the Child Support Standards Act from $154,000  to $163,000, and of the income cap of the maintenance payor under the Maintenance Guidelines Act from $192,000 to $203,000.  Both of these adjustments  are based on increases in the Consumer Price Index for all urban consumers (CPI-U) published by the United States Department of Labor. In addition, the revised forms reflect the increases as of March 1, 2022 in the Self Support Reserve from  $17,388 to $18,346.50  and in the federal Poverty Level Income for a single person from $12,880 to $13,590.

Uncontested Divorce Forms were revised March 1, 2022  reflecting these changes

The uncontested divorce packet and the following forms in uncontested divorce packet were revised: UD-8(2) Maintenance Guidelines Worksheet; UD -8(3) Child Support Worksheet; UD -10 Findings of Fact And Conclusions Of Law: UD -11 Judgment of Divorce; UD -13 Uncontested Matrimonial Request For Judicial Intervention

Worksheets for both Contested and Uncontested Divorces were revised March 1, 2022 reflecting these changes

The following contested divorce worksheets were revised: Temporary Maintenance Guidelines worksheet (for divorces started on or after 10/25/15); Post-Divorce Maintenance/Child Support Worksheet

 

Amendments to Domestic Relations Law §240-d (5)  and Family Court Act § 413-b

 

Domestic Relations Law §240-d (5) and Family Court Act § 413-b which were enacted in 2021 (Laws of 2021, Ch.437) were amended to clarify that an order of support for an adult with developmental disabilities is not applicable to services under section 111-g of the social services law. Subdivision 6 was added to provide that a court's finding concerning a person's disability status is not binding on the state, a local government, or the person, for any other purpose, including whether the person is eligible for services from the state office for people with developmental disabilities. Laws of 2022, Ch 110, approved February 24, 2022, effective October 8, 2021

 

 

            Subdivision 5 was amended and a new subdivision 6 was added to read as follows:

 

            5. Except where inconsistent with this section, all provisions of this

   article relating to orders of child support shall apply to all orders of

   support for adults with developmental disabilities;  provided,  however,

   that  such orders shall not be eligible for services pursuant to section

   one hundred eleven-g of the social services law.

 

            6. A determination made pursuant to this section that the person is or

   is not developmentally disabled, as defined in subdivision twenty-two of

   section 1.03 of the mental hygiene law, shall  not  be  binding  on  the

   state, a local government or the person for any other purpose, including

   determinations  of eligibility for services authorized by the office for

   people with developmental disabilities. (new matter in bold)

 

 

Appellate Division, First Department

 

Although father’s objections to orders of the Support Magistrate were untimely  and Appellate Division exercised its discretion to entertain the appeal to the extent it implicated the Family Court’s subject matter jurisdiction

            In Matter of Deborah K v Richard K, --- N.Y.S.3d ----, 2022 WL 618996 (Mem), 2022 N.Y. Slip Op. 01391(1^st Dept.,2022) the Appellate Division found that the father’s objections to the amended orders of the Support Magistrate were untimely (Family Court Act § 439[e]), and that he failed to proffer a reasonable excuse for the delay. Nevertheless, it exercised its discretion to entertain this appeal (see Family Court Act § 1112), to the extent it implicated the Family Court’s subject matter jurisdiction to modify the parties’ stipulation of settlement agreement, dated February 26, 2013 (see Matter of Georgette D.W. v. Gary N.R., 134 A.D.3d 406, 406, 21 N.Y.S.3d 41 [1st Dept. 2015]). It observed that a stipulation of settlement which is incorporated but not merged into the parties’ judgment of divorce may be reformed only in a plenary action and that  Family Court does not have jurisdiction to modify a separation agreement.

 

 

Appellate Division, Second Department

 

 

Service by email is not one of the permissible methods of service of papers upon a party who has not appeared by an attorney. Therefore, father’s contentions regarding the merits of his objections were not reviewable.

 

 

            In Nizen v Jacobellis, --- N.Y.S.3d ----, 2022 WL 610030 (Mem), 2022 N.Y. Slip Op. 01299 (2d Dept.,2022) the father filled objections to an order dated January 19, 2021, asserting that the order failed to adequately credit him for payments he made toward the arrears. The father attempted to effectuate service of his objections upon the mother, who was not represented by counsel, via email. The mother did not file a rebuttal to the father’s objections. Family Court denied the father’s objections on the ground of improper service. The Appellate Division affirmed. It held that Family Court properly denied his objections on the ground of improper service. Family Court Act § 439(e) provides, in pertinent part, that a party filing objections shall serve a copy of such objections upon the opposing party, and that proof of service upon the opposing party shall be filed with the court at the time of filing of objections. Since Family Court Act § 439(e) does not set forth the permissible methods for service of objections, the provisions of the Civil Practice Law and Rules are applicable. Pursuant to CPLR 2103(b), papers to be served upon a party, which includes an “opposing party” as described in Family Court Act § 439(e), shall be served upon the party’s attorney (CPLR 2103[b]), and may be served by, inter alia, transmitting the papers to the attorney by email when the transmission by email is made “upon the party’s written consent” ( § 2103[b][7]). However, if  a party has not appeared by an attorney, service shall be upon the party” (§ 2103[c]), and may be made by certain methods set forth in CPLR 2103(b), such as personal delivery (§ 2103[b][1]; [c]). Service by email is not one of the permissible methods of service of papers upon a party who has not appeared by an attorney. Since the father failed to serve his objections upon the mother in compliance with CPLR 2103(c), the father’s proof of service of the objections upon the mother was deficient. Therefore, the father failed to fulfill a condition precedent to filing timely written objections and, failed to exhaust the Family Court procedure for review of his objections. Consequently, the father’s contentions regarding the merits of his objections were not reviewable.

 

 

Appellate Division, Third Department

 

 

Based on the wife’s imputed income and the husband’s income, the presumptive postdivorce maintenance obligation was unjust and inappropriate where wife could support herself through her Social Security income and food stamps, her ownership of the marital residence, her support from family and friends and her ability to work. Property distribution will not be disturbed absent an abuse of discretion or failure to consider the requisite statutory factors under Domestic Relations Law § 236(B)(5)(d) .

            In King v King, 2022 WL 547156 (3d Dept.,2022) Plaintiff (husband) and defendant ( wife) were married in 1977 and, in 1989, plaintiff moved out of the marital residence. In July 2016, the husband commenced this action for divorce based on irretrievable breakdown of the marriage. Supreme Court determined that the wife was not entitled to equitable distribution of the husband’s 401(k) and retirement plans and declined to impose any postdivorce maintenance. The Appellate Division affirmed.

 

            The Appellate Division found that the testimony at trial established that the husband was 63 years old and in good health at the time of trial. At the time of trial, the husband was working as a sales supervisor earning $48,000 per year. For additional income, the husband was driving for Uber earning, on average, $250 per week, but he was not compensated for gas mileage or wear and tear on his vehicle. In 1985, the wife purchased property located in Feura Bush, Albany County. Three years later, the husband transferred his interest in the property to the wife. Since 1991, the husband lived with a woman and that they split household expenses. He  indicated that he had credit card debt amounting to $2,600. He owed $500 in back taxes. At the time of trial, the wife was  63 years old, in good health and was residing in the marital residence. She had an Associate’s degree in secretarial science. Most of her work had been administrative. She was not employed at the time of trial, having retired, and was receiving $750 monthly through Social Security benefits. Her 2016 tax return indicated that she earned $6,878 in income. The wife could not explain why her earnings were low considering her employment history. Her resume indicated that she has various computer skills, which she had retained. The wife indicated that she had received insurance through Medicaid. She had a savings account, which was not reflected on her statement of net worth. which reflected varying balances in excess of $2,000, which the wife alleged was an error. The wife was unable to state who deposited the funds. “My supports.”  The wife heavily relied on spousal support payments the husband had been ordered to make and received Supplemental Nutrition Assistance Program payments. The wife indicated that she had not applied for any jobs recently, but there was no reason that she cannot work in certain positions. The wife testified that, in approximately 2001, a family friend paid off the mortgage and now owned the residence but she was still listed on the deed. She stated that she had certain maintenance payments for the house and paid the homeowners’ insurance, but the owner took care of most expenses. Although she testified that she had not paid rent since 2005, her financial affidavit reflected rent or mortgage payments of $550. This same family friend assisted with the wife’s counsel fees. There was no evidence that she could not work, Supreme Court imputed income to the wife based on her administrative skill set and her ability to earn $10 per hour on a part-time basis. Based on the wife’s imputed income and the husband’s income, the court calculated the presumptive postdivorce maintenance obligation and then, after reviewing the statutory factors in Domestic Relations Law § 236(B)(6)(e)(1), determined that this award was unjust and inappropriate. The Appellate Division affirmed. The court  determined that the wife could support herself through her Social Security income and food stamps, her ownership of the marital residence, her support from family and friends and her ability to work. The Appellate Division found that this deviation was supported by the record, especially considering that the wife conceded that the spousal support payments were for the mortgage and the mortgage had since been paid in full. It noted that upon the entry of the divorce judgment by Supreme Court, all prior support orders of Family Court became null and void in the absence of Supreme Court’s adoption and incorporation of those orders in the divorce judgment” (Family Ct Act § 412[1][c]).

 

 

            The Appellate Division rejected the wife’s argument that Supreme Court erred in denying her any portion of the husband’s retirement accounts because the court did not consider certain statutory factors outlined in Domestic Relations Law § 236(B)(5)(d). Domestic Relations Law § 236(B)(5)(d) directs that “the court shall set forth the factors it considered and the reasons for its decision and such may not be waived” (Domestic Relations Law § 236[B][5][g]). However, the factors do not have to be specifically cited when the factual findings of the court otherwise adequately articulate that the relevant statutory factors were considered. The court’s award will not be disturbed absent an abuse of discretion or failure to consider the requisite statutory factors under Domestic Relations Law § 236(B)(5)(d) . The record revealed that, as of June 2018, defendant’s 401(k) account had just over $10,000. He also had a pension plan that would pay him $500 per month, contingent on the stock, when he reaches the age of 65. In its order, Supreme Court explicitly stated each factor it must consider under Domestic Relations Law § 236(B)(5)(d) and then analyzed each factor that was relevant, while indicating what factors it deemed irrelevant to the analysis. After analyzing each factor, Supreme Court looked at each asset to determine what distribution would be appropriate and found it appropriate to award the entirety of the retirement assets to the husband. With that being said, the court awarded the entire marital residence to the wife and any other property not discussed was distributed to “the party holding title or possession.” In support of its determination, the court stated that “it is appropriate, equitable and just to award the husband [the retirement] assets in light of the fact that the parties had been physically and financially separated for at least 14 years when the husband started working at Golub [Corporation] and in light of the [c]ourt’s award of the marital residence to the wife without any distribution to the husband of a portion of the equity.” Although the court did not explicitly state which factors contributed to the decision regarding the retirement assets, the order expressly stated each factor and assessed  its relevance against the facts and circumstances of the case, and it was clear from the order that the parties’ respective incomes, the duration of the marriage and other financial circumstances were heavily considered. Based on the foregoing it could not be said that the court abused its discretion in awarding the husband 100% of his retirement assets.

 

 

Family Court’s determination to modify a permanency goal will not be disturbed unless it lacks a sound and substantial basis in the record.

 

            In Matter of Gabrielle N, --- N.Y.S.3d ----, 2022 WL 547209, 2022 N.Y. Slip Op. 01213 (3d Dept.,2022) a neglect proceeding,  the Appellate Division affirmed an order which modified a permanency goal to placement for adoption. It observed that at the conclusion of a permanency hearing, the court has the authority to modify an existing permanency goal and must enter a disposition based upon the proof adduced and in accordance with the best interests of the children. While the aspiration is to return children to their parents, where such goal proves impossible because the parents are  unable to correct the conditions that led to the removal, the goal then becomes finding a permanent, stable solution for the children. Family Court’s determination to modify a permanency goal will not be disturbed unless it lacks a sound and substantial basis in the record.

 

The mere fact that the court adopted petitioners’ proposed findings of fact did not compel a conclusion that it did not undertake an independent evaluation of the record.

 

            In Matter of Baby S, --- N.Y.S.3d ----, 2022 WL 547137, 2022 N.Y. Slip Op. 01219 (3d Dept.,2022) after petitioners commenced a proceeding to adopt her child, respondent filed a notice of revocation of her extrajudicial consent to the adoption. Petitioners opposed the revocation. Following a hearing, Family Court adopted the proposed findings of fact and conclusions of law submitted by petitioners in its entirety and found that the extrajudicial consent was valid and that her notice of revocation was null and void. The Appellate Division affirmed. It held that in view of respondent’s timely revocation of her extrajudicial consent and petitioners’ timely opposition, at issue was whether petitioners’ adoption of the child, as permitted by Family Court, served the child’s best interests (Domestic Relations Law § 115–b [6][d][ii]) as the custody of the “ child shall be awarded solely on the basis of the best interests of the child, and there shall be no presumption that such interest will be promoted by any particular custodial disposition” (Domestic Relations Law § 115–b [6][d][v]). It rejected that argument that Family Court improperly delegated its responsibility to make factual findings when it adopted petitioners’ proposed findings of fact in total. It found that the court directed the parties to submit their own proposed findings of fact, and it was permitted to receive them and “pass upon [them]” (CPLR 4213[a]). The mere fact that the court adopted petitioners’ proposed findings of fact did not compel a conclusion that it did not undertake an independent evaluation of the record. The court presumably “did exactly that and, as a result, concurred with the proposed findings submitted” (Gerenstein v. Williams, 282 A.D.2d 786, 787, 723 N.Y.S.2d 255 [2001]). In a footnote it pointed out that a court’s wholesale copying of the prevailing party’s proposal, although occasionally allowable, is rarely advisable, particularly in such a delicate case. The better practice is for a court to craft its own decision stating] the facts it deems essential” (CPLR 4213[b]), even if it incorporates many of the findings submitted by one party.

 

 

Although a subsequently issued permanency order effectively supersedes prior permanency orders, an appeal from a prior order is not moot if that prior order modified the permanency goal.

 

            In Matter of Jaylynn WW, 2022 WL 547172 (3d Dept.,2022), a neglect proceeding,  the Appellate Division observed that although CPLR 2101(c) requires the caption of a summons and complaint in a civil matter to include the names of all parties, captions in petitions for Family Ct Act article 10 proceedings often include the names of the children and the respondent parents or other adults responsible for the abuse or neglect but do not always include the name of the petitioning child protective agency. However, defects in the form of papers shall be disregarded by the court unless a substantial right of a party is prejudiced, and objections to defects in form are waived unless the paper is returned with particular objections within 15 days of receipt (see CPLR 2101[f]). Under that statutory provision, the father waived any objection to the form of the caption in the petition and he had not demonstrated any prejudice. For  these reasons, the petition was not jurisdictionally defective.

 

            The Appellate Division held that although a subsequently issued permanency order effectively supersedes prior permanency orders, an appeal from a prior order is not moot if that prior order modified the permanency goal; because, by changing the goal, “Family Court altered [the local social service agency’s] obligations in future permanency hearings from working toward reunification” with a parent to working toward a different permanent placement, any new permanency orders will be a direct result of the orders appealed from and the issue of whether those orders were proper will still affect the father’s rights. Accordingly, the appeal from the orders entered after the third permanency hearing was not moot.

 

 

March 1, 2022

 

Release of Revised forms and Child Support Standards Chart on March 1, 2022

 

 

Revised Forms for Use in Matrimonial Actions in Supreme Court were adopted effective March 1, 2022. These revisions reflect the required statutory adjustment on March 1, 2022 of the combined income cap under the Child Support Standards Act from $154,000 to $163,000, and of the income cap of the maintenance payor under the Maintenance Guidelines Act from $192,000 to $203,000. Both of these adjustments are based on increases in the Consumer Price Index for all urban consumers (CPI-U) published by the United States Department of Labor. In addition, the revised forms reflect the increases as of March 1, 2022 in the Self Support Reserve from $17,226, to $18,347 and in the federal Poverty Level Income for a single person from $12,760 to $13,590.

 

The following forms were revised:

 

Preliminary conference stipulation/order contested matrimonial

Maintenance Guidelines Worksheet (UD-8 (2))

Child Support Worksheet (UD-8 (3))

Temporary Maintenance Worksheet (for divorces started on or after 10/25/15)

Combined Worksheet for Maintenance and Child Support

Child Support Standards Act Chart

 

 

 

Appellate Division, First Department   

 

 

While not all provisions of the CPL are applicable to proceedings under the Family Court Act under the circumstances here, the denial of records available under CPL 245.10(1)(k)(iv), which broadly requires disclosure of all impeachment evidence deprived appellant of equal protection of the laws.

 

            In Matter of Jayson C., 200 A.D.3d 447, 159 N.Y.S.3d 40, 2021 N.Y. Slip Op. 06794 (1^st Dept., 2021) a juvenile delinquency proceeding, appellant sought an order directing the presentment agency to provide the discovery sought in his Discovery Demand, including impeachment evidence pursuant to CPL 245.20(1)(k)(iv), and argued that it was unconstitutional to deny him those materials solely because he was an alleged juvenile delinquent. The presentment agency opposed the motion and argued that it provided all discovery required by the Family Court Act, and that CPL article 245 did not apply to juvenile delinquency proceedings. The Family Court “deemed satisfied” appellant’s motion because the presentment agency had provided the relief requested in his motion. The Family Court denied any request for “further witness information” stating that “the provisions of the CPL cited by [appellant] are expressly inapplicable and preempted in juvenile delinquency cases pursuant to Family Ct Act 303.1(1). The Appellate Division held that while not all provisions of the Criminal Procedure Law are applicable to proceedings under the Family Court Act (Family Ct Act § 303.1[1]) under the circumstances presented here, the denial of records available under CPL 245.10(1)(k)(iv), which broadly requires disclosure of all impeachment evidence deprived appellant of equal protection of the laws. A respondent in a juvenile delinquency proceeding has the same right to cross-examine witnesses as a criminal defendant, and there is no reason to allow more limited access to impeachment materials in a juvenile suppression or fact-finding hearing than in a criminal suppression hearing or trial. The need for impeachment evidence is equally crucial in both delinquency and criminal proceedings. A similarly situated defendant in a criminal proceeding would be entitled to access to the impeachment materials requested by appellant. Because appellant asked only that the information be provided under Family Court Act article 3 timelines, it held that it need not address whether any different time frame  contained in the Criminal Procedure Law must apply under equal protection principles.

 

 

Appellate Division, Third Department

 

 

Where father moved to Florida and mother was awarded custody, Family Court’s directive that the mother contribute to the transportation costs to effectuate the father’s parenting time was fair and appropriate

 

            In Andrea H v Justin I, --- N.Y.S.3d ----, 2022 WL 479492, 2022 N.Y. Slip Op. 01080 (3d Dept.,2022) after  the father relocated to Florida with his wife to take care of certain family members with failing health. Family Court awarded the parties joint legal custody of the children with primary physical custody to the mother, as the parties had agreed. The father was awarded set parenting time. So long as the father paid a minimum of $100 per week in child support and was not more than six weeks behind in his current child support obligation, the parties were to split the transportation costs associated with effectuating the father’s Christmas break parenting time in odd years and for one of the visits each summer. In all other instances, the father would be solely responsible for transportation costs, and an annual cap of $750 was set for the mother’s share of transportation expenses. The Appellate Division found that Family Court’s directive that the mother contribute to the transportation costs to effectuate the father’s parenting time was fair and appropriate. The parties were “on fairly equal footing” financially at the time of the hearing. Although it is relevant that the father’s voluntary relocation to Florida led to the increased transportation costs the father still bears a substantial portion of the costs under the order.

 

 

Where mother appealed from custody order but  attorney for the child did not appeal she was barred from seeking affirmative relief not sought by the mother.

 

 

            In Matter of Charity K v Sultani L, --- N.Y.S.3d ----, 2022 WL 479490, 2022 N.Y. Slip Op. 01085 (3d Dept.,2022) the mother appealed from an order which denied her petition for modification of a custody order and argued, with the support of the appellate attorney for the child, that the record did  not support continuing the child’s physical placement with the father. In affirming, the Appellate Division held that since the attorney for the child did not appeal from Family Court’s order she was “barred from seeking affirmative relief not sought by the mother.

 

 

 

Mother failed to meet her burden and equitable estoppel did not apply to Petitioner where respondent transitioned from a fatherly role to a friendly role upon discovering that he was not the child’s biological father

 

             In Matter of John D v Carrie C, --- N.Y.S.3d ----, 2022 WL 479489, 2022 N.Y. Slip Op. 01089(3d Dept.,2022) the Appellate Division affirmed an order which ordered a genetic marker test pursuant to Family Ct Act § 532(a) which allows the court to deny a genetic marker test on the basis of equitable estoppel.  It found that respondent, who was listed falsely on as the father on the childs birth certificate, signed an acknowledgment of paternity, was present at the hospital when the child was born and participated in the care of the child for the first year and a half of her life, transitioned from a fatherly role to a friendly role upon discovering that he was not the child’s biological father, and the child, who was six years old at the hearing, had been raised with the understanding that respondent was not her father. The mother testified that she now indicates to the child that respondent is her father, knowing with certainty that he is not. As the record failed to establish that the child would suffer irreparable loss of status, destruction of [her] family image, or other harm to [her] physical or emotional well-being if this proceeding were permitted to go forward, it found that contrary to Family Court’s order, the mother failed to. By contrast, a parent-child relationship between petitioner and the child had evolved since their initial contact in early January 2020. The mother testified that she stopped allowing the child to see petitioner after petitioner became “demanding” about having regular weekend parenting time with the child at his home and outside of the mother’s presence. Accordingly, equitable estoppel did not bar issuance of an order for genetic marker tests.

 

 

Family Ct Act § 427[a] requires service of both the summons and the petition to obtain personal jurisdiction in support proceeding. Traverse ordered where affidavit of service indicated service of summons only.

           

 

            In Matter of Commissioner of Broome County Social Services on Behalf of Harbst v Wagner,  2022 WL 479456 (3d Dept.,2022) the Appellate Division reversed an order which granted petitioner’s application, to hold respondent in willful violation of two prior orders of support. It observed that in a proceeding to enforce a support order, personal jurisdiction may be obtained over the respondent through personal service of the summons and petition at least eight days before the scheduled appearance (see Family Ct Act §§ 427[a]; 453[c]). In the affidavit of service the person who served process checked the box for “summons,” but did not check the box for “petition.” The statute requires service of both the summons and the petition (see Family Ct Act § 427[a]). As such, the Support Magistrate and Family Court erred in accepting the affidavit as proof of adequate service without further inquiry on the matter at a traverse hearing.

 

 

 

Where custody order was entered on the parents’ consent but over the AFC’s objection, the child was aggrieved given that she did not receive her desired outcome with respect to the custodial arrangement

 

            In Matter of Jessee U v Dakota V, 2022 WL 479465 (3d Dept.,2022) before a fact-finding hearing on the custody petition was held, the mother and the father came to an agreement whereby the father would have primary physical custody and the mother would have weekend visits every other week and certain other parenting time. Upon the parents’ consent, but over the objection of the AFC, Family Court entered an order in July 2020 effectuating the agreement. The court entered a fact-finding and dispositional order as to the mother’s neglect proceeding thereinafter, in December 2020. The AFC appealed from both orders. The AFC argued that, by merely accepting the parents’ agreement, Family Court abdicated its responsibility to ensure that the custodial arrangement furthers the child’s best interests, and the AFC requested that the matter be remitted for a full evidentiary hearing. The Appellate Division affirmed. It held that Family Court is not required to hold a hearing in every custody matter, and a hearing is not necessary where none is requested and the court has “sufficient information to undertake a comprehensive independent review of the child’s best interests”. Here, there was no request for a hearing following Family Court’s acceptance of the agreement. In addition, the court had sufficient information to consider the child’s best interests. No hearing was required here.  In a footnote the Court pointed out that the custody order was entered on the parents’ consent but over the AFC’s objection, and the child was aggrieved thereby given that she did not receive her desired outcome with respect to the custodial arrangement. However, the child was  not aggrieved by the finding of neglect against the mother as the AFC consented to the entry of an order to that end.

 

 

 

Supreme Court 

 

 

“Habitual residence” determination is fact driven. Court must inquire into shared intent of those entitled to fix child’s home at the latest time that they had the same interests and should inquire whether evidence unequivocally concludes that child has acclimatized to the new location  notwithstanding any conflict with parents’ latest shared intent.

 

 

In State of New York Ex Rel. B.E., v. T.C., --- N.Y.S.3d ----, 2022 WL 497517, 2022 N.Y. Slip Op. 22044 (Sup Ct, 2022)  Mr. E. filed a petition permitting him to immediately take M. to London based on the Court’s emergency jurisdiction under Domestic Relations Law 75-a (7), and 76-c and the Hague Convention. Currently M. Was with his mother, Respondent T.C. in Brooklyn. Ms. C. moved to, inter alia, dismiss petitioner’s application under CPLR 3211 (a)(4) and DRL 76-e (1) and 76-e (2). Mr. E. wanted the court to assume temporary emergency jurisdiction of M. under Domestic Relations Law section 76-C and because M. is imminent danger for among other things, he will miss the starts of the school semester. He asked the court to determine an emergency under New York’s Domestic Relation Law to avoid a possible negative outcome in San Francisco California, where a custody action between the parties was pending that pre-dated this New York case.  The court denied the petitioner’s application to apply UCCJA jurisdiction under CPLR 3211(a)(7) prior action pending.

 

            Supreme Court denied Mr. E.’s request for a ruling that under the Hague convention England was M.’s “habitual residence” and that he should be immediately returned  to his care. The Court observed that to determine habitual residence, “the court must also inquire into the shared intent of those entitled to fix the child’s home (usually the parents) at “the latest time that they had the same interests”. The court must consider intent, actions, and declaration. And the court should inquire whether the evidence unequivocally concludes that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent. (Matter of E.Z. 2021 WL 5106637 [SDNY 2021]) The parties resided in England from the 2007 marriage until 2014. When they moved to San Francisco they sold their home in England. In 2015 Ms. C. told Mr. E. that she wanted to end the marriage and insisted he take M. and move from the marital residence. Mr. E. commenced the divorce action in San Francisco in 2016. While Ms. C. was on tour during 2017 M. continued to reside in San Francisco. In 2018 she moved to New York for medical treatment and remained there when diagnosed with breast cancer. In December 2019, Mr. E. took M. to visit Ms. C. in New York. Then he removed M. to England without Ms. C.’s consent. He moved into his parent’s home and enrolled M. in school in England. They visited Ms. C. in New York during the Christmas holidays in 2019 and from February 15-23, 2020.

 

            Supreme Court noted that the “habitual residence” determination is “fact driven,” and “courts must be sensitive to the case’s unique circumstances and informed by common sense.” (Monasky v. Taglieri, 140 S. Ct. 719, 723 [2020]). The residence must have the “quality of being habitual.” The court must consider time passage, participation in sports programs and excursions, academic activities, and meaningful connections with the people and places in the child’s new country. Parents must have a “shared” settled intent to acquire a new habitual residence in the shared plan about the child’s future. Shared intent may “coalesce” if the child leaves the country. The court found two places where the parents would have agreed to reside habitually: San Francisco or New York after July 25, 2021. Ms. C. never abandoned her apartment in San Francisco and never consented to M. relocating permanently to England in December 2019. Nothing indicatef M. acclimated to England. The court found  that Mr. E. did not create a situation that changed M.’s “habitual residence” to England. His actions in San Francisco and New York, indicated he did not rely on a Hague Convention case setting a new “habitual residence.” The  court found that both parents had a shared intent that New York would become M.’s habitual residence as of July 2021 and that the facts did not establish that England was M.’s “habitual residence.” Mr. E.’s petition for an order mandating M.’s return to England was denied.

 

 

February 23, 2022

 

Appellate Division, First Department   

 

 

While not all provisions of the CPL are applicable to proceedings under the Family Court Act under the circumstances here, the denial of records available under CPL 245.10(1)(k)(iv), which broadly requires disclosure of all impeachment evidence deprived appellant of equal protection of the laws.

 

            In Matter of Jayson C., 200 A.D.3d 447, 159 N.Y.S.3d 40, 2021 N.Y. Slip Op. 06794 (1^st Dept., 2021) a juvenile delinquency proceeding, appellant sought an order directing the presentment agency to provide the discovery sought in his Discovery Demand, including impeachment evidence pursuant to CPL 245.20(1)(k)(iv), and argued that it was unconstitutional to deny him those materials solely because he was an alleged juvenile delinquent. The presentment agency opposed the motion and argued that it provided all discovery required by the Family Court Act, and that CPL article 245 did not apply to juvenile delinquency proceedings. The Family Court “deemed satisfied” appellant’s motion because the presentment agency had provided the relief requested in his motion. The Family Court denied any request for “further witness information” stating that “the provisions of the CPL cited by [appellant] are expressly inapplicable and preempted in juvenile delinquency cases pursuant to Family Ct Act 303.1(1). The Appellate Division held that while not all provisions of the Criminal Procedure Law are applicable to proceedings under the Family Court Act (Family Ct Act § 303.1[1]) under the circumstances presented here, the denial of records available under CPL 245.10(1)(k)(iv), which broadly requires disclosure of all impeachment evidence deprived appellant of equal protection of the laws. A respondent in a juvenile delinquency proceeding has the same right to cross-examine witnesses as a criminal defendant, and there is no reason to allow more limited access to impeachment materials in a juvenile suppression or fact-finding hearing than in a criminal suppression hearing or trial. The need for impeachment evidence is equally crucial in both delinquency and criminal proceedings. A similarly situated defendant in a criminal proceeding would be entitled to access to the impeachment materials requested by appellant. Because appellant asked only that the information be provided under Family Court Act article 3 timelines, it held that it need not address whether any different time frame  contained in the Criminal Procedure Law must apply under equal protection principles.

 

 

Appellate Division, Third Department

 

 

Where father moved to Florida and mother was awarded custody, Family Court’s directive that the mother contribute to the transportation costs to effectuate the father’s parenting time was fair and appropriate

 

            In Andrea H v Justin I, --- N.Y.S.3d ----, 2022 WL 479492, 2022 N.Y. Slip Op. 01080 (3d Dept.,2022) after  the father relocated to Florida with his wife to take care of certain family members with failing health. Family Court awarded the parties joint legal custody of the children with primary physical custody to the mother, as the parties had agreed. The father was awarded set parenting time. So long as the father paid a minimum of $100 per week in child support and was not more than six weeks behind in his current child support obligation, the parties were to split the transportation costs associated with effectuating the father’s Christmas break parenting time in odd years and for one of the visits each summer. In all other instances, the father would be solely responsible for transportation costs, and an annual cap of $750 was set for the mother’s share of transportation expenses. The Appellate Division found that Family Court’s directive that the mother contribute to the transportation costs to effectuate the father’s parenting time was fair and appropriate. The parties were “on fairly equal footing” financially at the time of the hearing. Although it is relevant that the father’s voluntary relocation to Florida led to the increased transportation costs the father still bears a substantial portion of the costs under the order.

 

 

Where mother appealed from custody order but  attorney for the child did not appeal she was barred from seeking affirmative relief not sought by the mother.

 

 

            In Matter of Charity K v Sultani L, --- N.Y.S.3d ----, 2022 WL 479490, 2022 N.Y. Slip Op. 01085 (3d Dept.,2022) the mother appealed from an order which denied her petition for modification of a custody order and argued, with the support of the appellate attorney for the child, that the record did  not support continuing the child’s physical placement with the father. In affirming, the Appellate Division held that since the attorney for the child did not appeal from Family Court’s order she was “barred from seeking affirmative relief not sought by the mother.

 

 

 

Mother failed to meet her burden and equitable estoppel did not apply to Petitioner where respondent transitioned from a fatherly role to a friendly role upon discovering that he was not the child’s biological father

 

             In Matter of John D v Carrie C, --- N.Y.S.3d ----, 2022 WL 479489, 2022 N.Y. Slip Op. 01089(3d Dept.,2022) the Appellate Division affirmed an order which ordered a genetic marker test pursuant to Family Ct Act § 532(a) which allows the court to deny a genetic marker test on the basis of equitable estoppel.  It found that respondent, who was listed falsely on as the father on the childs birth certificate, signed an acknowledgment of paternity, was present at the hospital when the child was born and participated in the care of the child for the first year and a half of her life, transitioned from a fatherly role to a friendly role upon discovering that he was not the child’s biological father, and the child, who was six years old at the hearing, had been raised with the understanding that respondent was not her father. The mother testified that she now indicates to the child that respondent is her father, knowing with certainty that he is not. As the record failed to establish that the child would suffer irreparable loss of status, destruction of [her] family image, or other harm to [her] physical or emotional well-being if this proceeding were permitted to go forward, it found that contrary to Family Court’s order, the mother failed to. By contrast, a parent-child relationship between petitioner and the child had evolved since their initial contact in early January 2020. The mother testified that she stopped allowing the child to see petitioner after petitioner became “demanding” about having regular weekend parenting time with the child at his home and outside of the mother’s presence. Accordingly, equitable estoppel did not bar issuance of an order for genetic marker tests.

 

 

Family Ct Act § 427[a] requires service of both the summons and the petition to obtain personal jurisdiction in support proceeding. Traverse ordered where affidavit of service indicated service of summons only.

           

 

            In Matter of Commissioner of Broome County Social Services on Behalf of Harbst v Wagner,  2022 WL 479456 (3d Dept.,2022) the Appellate Division reversed an order which granted petitioner’s application, to hold respondent in willful violation of two prior orders of support. It observed that in a proceeding to enforce a support order, personal jurisdiction may be obtained over the respondent through personal service of the summons and petition at least eight days before the scheduled appearance (see Family Ct Act §§ 427[a]; 453[c]). In the affidavit of service the person who served process checked the box for “summons,” but did not check the box for “petition.” The statute requires service of both the summons and the petition (see Family Ct Act § 427[a]). As such, the Support Magistrate and Family Court erred in accepting the affidavit as proof of adequate service without further inquiry on the matter at a traverse hearing.

 

 

 

Where custody order was entered on the parents’ consent but over the AFC’s objection, the child was aggrieved given that she did not receive her desired outcome with respect to the custodial arrangement

 

            In Matter of Jessee U v Dakota V, 2022 WL 479465 (3d Dept.,2022) before a fact-finding hearing on the custody petition was held, the mother and the father came to an agreement whereby the father would have primary physical custody and the mother would have weekend visits every other week and certain other parenting time. Upon the parents’ consent, but over the objection of the AFC, Family Court entered an order in July 2020 effectuating the agreement. The court entered a fact-finding and dispositional order as to the mother’s neglect proceeding thereinafter, in December 2020. The AFC appealed from both orders. The AFC argued that, by merely accepting the parents’ agreement, Family Court abdicated its responsibility to ensure that the custodial arrangement furthers the child’s best interests, and the AFC requested that the matter be remitted for a full evidentiary hearing. The Appellate Division affirmed. It held that Family Court is not required to hold a hearing in every custody matter, and a hearing is not necessary where none is requested and the court has “sufficient information to undertake a comprehensive independent review of the child’s best interests”. Here, there was no request for a hearing following Family Court’s acceptance of the agreement. In addition, the court had sufficient information to consider the child’s best interests. No hearing was required here.  In a footnote the Court pointed out that the custody order was entered on the parents’ consent but over the AFC’s objection, and the child was aggrieved thereby given that she did not receive her desired outcome with respect to the custodial arrangement. However, the child was  not aggrieved by the finding of neglect against the mother as the AFC consented to the entry of an order to that end.

 

 

 

Supreme Court 

 

 

“Habitual residence” determination is fact driven. Court must inquire into shared intent of those entitled to fix child’s home at the latest time that they had the same interests and should inquire whether evidence unequivocally concludes that child has acclimatized to the new location  notwithstanding any conflict with parents’ latest shared intent.

 

 

In State of New York Ex Rel. B.E., v. T.C., --- N.Y.S.3d ----, 2022 WL 497517, 2022 N.Y. Slip Op. 22044 (Sup Ct, 2022)  Mr. E. filed a petition permitting him to immediately take M. to London based on the Court’s emergency jurisdiction under Domestic Relations Law 75-a (7), and 76-c and the Hague Convention. Currently M. Was with his mother, Respondent T.C. in Brooklyn. Ms. C. moved to, inter alia, dismiss petitioner’s application under CPLR 3211 (a)(4) and DRL 76-e (1) and 76-e (2). Mr. E. wanted the court to assume temporary emergency jurisdiction of M. under Domestic Relations Law section 76-C and because M. is imminent danger for among other things, he will miss the starts of the school semester. He asked the court to determine an emergency under New York’s Domestic Relation Law to avoid a possible negative outcome in San Francisco California, where a custody action between the parties was pending that pre-dated this New York case.  The court denied the petitioner’s application to apply UCCJA jurisdiction under CPLR 3211(a)(7) prior action pending.

 

            Supreme Court denied Mr. E.’s request for a ruling that under the Hague convention England was M.’s “habitual residence” and that he should be immediately returned  to his care. The Court observed that to determine habitual residence, “the court must also inquire into the shared intent of those entitled to fix the child’s home (usually the parents) at “the latest time that they had the same interests”. The court must consider intent, actions, and declaration. And the court should inquire whether the evidence unequivocally concludes that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent. (Matter of E.Z. 2021 WL 5106637 [SDNY 2021]) The parties resided in England from the 2007 marriage until 2014. When they moved to San Francisco they sold their home in England. In 2015 Ms. C. told Mr. E. that she wanted to end the marriage and insisted he take M. and move from the marital residence. Mr. E. commenced the divorce action in San Francisco in 2016. While Ms. C. was on tour during 2017 M. continued to reside in San Francisco. In 2018 she moved to New York for medical treatment and remained there when diagnosed with breast cancer. In December 2019, Mr. E. took M. to visit Ms. C. in New York. Then he removed M. to England without Ms. C.’s consent. He moved into his parent’s home and enrolled M. in school in England. They visited Ms. C. in New York during the Christmas holidays in 2019 and from February 15-23, 2020.

 

            Supreme Court noted that the “habitual residence” determination is “fact driven,” and “courts must be sensitive to the case’s unique circumstances and informed by common sense.” (Monasky v. Taglieri, 140 S. Ct. 719, 723 [2020]). The residence must have the “quality of being habitual.” The court must consider time passage, participation in sports programs and excursions, academic activities, and meaningful connections with the people and places in the child’s new country. Parents must have a “shared” settled intent to acquire a new habitual residence in the shared plan about the child’s future. Shared intent may “coalesce” if the child leaves the country. The court found two places where the parents would have agreed to reside habitually: San Francisco or New York after July 25, 2021. Ms. C. never abandoned her apartment in San Francisco and never consented to M. relocating permanently to England in December 2019. Nothing indicatef M. acclimated to England. The court found  that Mr. E. did not create a situation that changed M.’s “habitual residence” to England. His actions in San Francisco and New York, indicated he did not rely on a Hague Convention case setting a new “habitual residence.” The  court found that both parents had a shared intent that New York would become M.’s habitual residence as of July 2021 and that the facts did not establish that England was M.’s “habitual residence.” Mr. E.’s petition for an order mandating M.’s return to England was denied.

 

 

 

 

February 16, 2022

 

 

 

Generally, where the asset to be valued is the marital residence, the valuation date employed should be the date of trial

 

            In Kattan v Kattan, --- N.Y.S.3d ----, 2022 WL 385950, 2022 N.Y. Slip Op. 00856 (2d Dept.,2022) the  parties were married in 1989 and had four children together, the youngest of whom was currently 20 years old. On January 8, 2009, the plaintiff commenced this action for a divorce. The Supreme Court conducted a nonjury trial over 45 nonconsecutive days between May 9, 2011, and May 15, 2014, and issued a decision after trial dated May 3, 2018. A judgment of divorce dated December 11, 2018, (1) awarded the defendant title to the marital residence and awarded the plaintiff $1,637,500 for his interest in the marital residence; (2) awarded the defendant $1,190,301.18 for her contribution to the appreciation in value of the plaintiff’s separate property in Deal, New Jersey ( which the Appellate Division reduced on this appeal); (3) awarded the defendant title to certain marital property on Ditmas Avenue in Brooklyn, and awarded the plaintiff the sum of $532,294.27 for his interest in that property; (4) awarded the plaintiff $807,408.60 for his interest in certain marital property on Avenue P in Brooklyn; (5) awarded the defendant $472,500 for her interest in certain marital property on 20th Avenue in Brooklyn; (8) awarded the defendant 30% of the appreciated value of the plaintiff’s premarital interest in Madison Maidens and 50% of the plaintiff’s postmarital interest in Madison Maidens; (9) awarded the defendant maintenance of $5,000 per month for a period of 18 months; (10) directed the plaintiff to pay the defendant basic child support of $2,250 per month plus 71.08% of statutory add-on expenses for the parties’ unemancipated child; (12) awarded the defendant 50% of the cash surrender value of an AVIVA life insurance policy.

 

            The Appellate Division, inter alia,  held that the Supreme Court providently exercised its discretion in awarding the defendant title to the marital residence and in calculating the plaintiff’s 50% interest in that property based upon the value of that property as stipulated to by the parties during the trial of this action in 2012. Generally, where the asset to be valued is the marital residence, “the valuation date employed should be the date of trial” (Wegman v. Wegman, 123 A.D.2d 220, 232, 509 N.Y.S.2d 342). The court explained in its decision that it determined to award the defendant title to the marital residence upon consideration of the totality of the circumstances, including the court’s distribution awards with respect to the remainder of the parties’ marital property, and the defendant’s position as custodial parent of the parties’ then-unemancipated child. However, the Supreme Court should have awarded the plaintiff a credit for separate property funds he used to purchase and renovate the marital residence. The plaintiff’s proof at trial established that he used $991,416.54 in separate property funds to purchase and renovate the marital residence. It modified  the judgment to award the plaintiff  $2,133,208.27 for his interest in the marital residence, constituting $991,416.54 in credits for his separate property contribution plus $1,141,791.73, which was 50% of the stipulated value of the marital residence of $3,275,000, as reduced by the amount of the plaintiff’s separate property contribution.

 

            The Appellate Division also modified the  judgment by deleting the provision  awarding the defendant $1,190,301.18 for her contributions to the appreciation in value of the plaintiff’s separate property in Deal, New Jersey, and substituting  a provision awarding the defendant $595,150.59 for her contributions to the appreciation in value of that property; and  by deleting the provision awarding the defendant $472,500 for her interest in certain marital property on 20th Avenue in Brooklyn, and substituting  a provision awarding the defendant $428,492.50 for her interest in that property;

 

 

Family Court Act § 439(e) is mandatory insofar as it plainly states that the court shall,” within 15 days of an objection to a support award being fully submitted, issue a ruling on it.”

 

            In Matter of Liu v Ruiz, 200 A.D.3d 68, 158 N.Y.S.3d 25, 2021 N.Y. Slip Op. 06089 (1s Dept.,2021) after Family Court failed to issue a timely ruling on the mother’s objections to findings of fact issued by support magistrate in proceedings on her  child support violation petition, the mother filed petition for mandamus relief against the Chief Administrative Judge of the Family Court, to compel a decision on mother’s objections and for reasonable attorney fees under State Equal Access to Justice Act (EAJA). After a judge was assigned to the support proceeding and issued a  favorable decision on the mother’s pending objections, the State, on behalf of the Chief Administrative Judge, cross-moved to dismiss the  mandamus proceeding. The Supreme Court denied the  petition and dismissed the proceeding as moot. The Appellate Division held that the  failure by Chief Administrative Judge to assign judge to hear the mother’s objections within 15 days violated a clear obligation in the statute governing support magistrates and the  mother was entitled to attorney fees as “prevailing party” under EAJA. It held that Family Court Act § 439(e) was violated. The statute is mandatory insofar as it plainly states that the court shall,” within 15 days of an objection to a support award being fully submitted, issue a ruling on it.”

 

 

 

 

 

February 9, 2022

 

Appellate Division, First Department   

 

So long as disclosure sought from nonparty witness is relevant to the prosecution or defense of an action, it must be provided by the nonparty        

 

            In Gross v Hazan-Gross, --- N.Y.S.3d ----, 2022 WL 243140 (Mem), 2022 N.Y. Slip Op. 00501(1s Dept.,2022) the Appellate Division affirmed an order which granted defendant wife’s motion to compel nonparty appellant (Langman) to produce documents responsive to a subpoena and to appear for examination before trial, unanimously affirmed, with costs. It held that the motion court providently exercised its discretion in ordering Langman to comply with the Subpoena. Langman failed to show that the discovery sought by defendant via the Subpoena was “utterly irrelevant” or that the “futility of the process to uncover anything legitimate is inevitable or obvious” (Matter of Kapon v. Koch, 23 N.Y.3d 32 [2014]) So long as the disclosure sought is relevant to the prosecution or defense of an action, it must be provided by the nonparty.

 

 

Respondent was a person legally responsible (PLR) for the children  where parties represented he was the child’s biological father, he maintained communication with the mother and failed to appear or testify to dispute the evidence, allowing the court to draw a negative inference against him.

            In Matter of Tristian B., 2022 WL 243150 (1^st Dept.,,2022) the Appellate Division reversed an order which dismissed the petition alleging neglect or derivative neglect of the child for lack of standing, and found respondent  to have neglected the subject child. Petitioner demonstrated by a preponderance of the evidence that respondent was a person legally responsible (PLR) for the subject child, as well as for the child’s three older siblings. Respondent and the children’s mother were in a romantic relationship and lived together before the child was born, and they both represented to caseworkers that respondent was the child’s biological father. There was evidence that, although he was excluded from the home because of an order of protection against him, respondent maintained communication with the mother and slept at the home at least on occasion, sharing the mother’s bed. Respondent failed to appear or testify to dispute the evidence that he was the child’s biological father or a PLR for him. The fact that respondent was excluded from the household before the child’s birth as a result of having committed acts of excessive corporal punishment against the child’s eldest sibling did  not outweigh the evidence that demonstrated that he was a PLR for the child. The finding that respondent was a PLR for the child was further supported by his failure to appear in court, allowing the court to draw a negative inference against him.

 

 

 

Appellate Division, Second Department

 

 

While court has considerable discretion in imputing income, the imputed income figure must be rationally based. Where the imputed income amount was entirely speculative it  should not have been imputed to the plaintiff. Expenses for extracurricular activities are not specifically delineated as an “add-on” under the CSSA.

 

            In Tuchman v Tuchman, --- N.Y.S.3d ----, 2022 WL 221204, 2022 N.Y. Slip Op. 00454 (2d Dept.,2022) the plaintiff and the defendant were married in January 1985 and had four children, two of whom were unemancipated at the time of trial, born 1997 and 2005, respectively. On November 27, 2012, the plaintiff commenced this action for a divorce. Midway through a nonjury trial the parties entered into a stipulation of settlement resolving the issues of equitable distribution, separate property, businesses, counsel fees, and professional fees. Following the trial, the Supreme Court issued a decision setting forth its determinations regarding the outstanding issues. In the decision, the court determined to impute an annual income of $800,000 to the defendant and an annual income of $62,231.46 to the plaintiff. The judgment of divorce, which incorporated the June 2017 stipulation, insofar as appealed from (1) awarded the plaintiff nondurational maintenance of $25,000 per month commencing May 1, 2018, and continuing for a period of five years,$20,000 per month for an additional period of five years, and $12,000 per month thereafter until the death of either party or the remarriage of the plaintiff; (2) directed the defendant to pay basic child support for the parties’ youngest child of $4,611 per month and 93% of the costs of the extracurricular activities of that child; (3) directed the defendant to pay 100% of the unreimbursed healthcare costs of the parties’ two youngest children; .(4) directed the plaintiff to reimburse the defendant $7,500 toward the total costs of the trial transcripts. The court also granted a money judgment for arrears under the stipulation  in favor of the plaintiff and against the defendant in the principal sum of $110,000.

 

            The Appellate Division affirmed, as a proper exercise of discretion, the imputation of income to the defendant for purposes of awarding maintenance. It held that in computing child support, the Supreme Court improvidently exercised its discretion by imputing to the plaintiff $62,231.46 in annual income. While the court has considerable discretion in imputing income, the imputed income figure must be rationally based. Here, the imputed income amount was entirely speculative, based upon assumptions as to the plaintiff’s purported investment return from her distributive award, unsupported by evidence in the record. It was undisputed that the plaintiff left the workforce over 30 years ago at the defendant’s request. Therefore, annual income should not have been imputed to the plaintiff in determining child support. It modified the judgment to direct the defendant to pay the plaintiff $4,958.33 per month in basic child support for the parties’ youngest child.

 

            In addition to the defendants’ basic child support obligation, the Supreme Court directed the defendant to pay his pro rata share of the costs of the extracurricular activities of the parties’ youngest child, including summer camp. The Appellate Division held that although such expenses may be appropriately considered as an “add on expense” for child care the plaintiff failed to establish an entitlement to child care expenses. Although the defendant acknowledged that it was in the child’s best interest to attend summer camp, and, during the marriage, all of the parties’ children attended summer camp, the child’s standard of living during the marriage was taken into account in awarding basic child support using the defendant’s income in excess of the statutory cap. Expenses for extracurricular activities are not specifically delineated as an “add-on” under the Child Support Standards Act. It held that the substantial basic child support award should be sufficient to cover the child’s expenses, including her extracurricular activities.

 

 

 

The  court must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap. Such articulation should reflect a careful consideration of the stated basis for the court’s exercise of discretion, the parties’ circumstances, and the court’s reasoning.

 

            In Moradi v Buhl, .   --- N.Y.S.3d ----, 2022 WL 221153 (Mem), 2022 N.Y. Slip Op. 00421 (2d Dept.,2022) the parties were married in 2003, and were  the parents of a daughter born in 2004. The plaintiff commenced this action for a divorce in February 2014. Supreme Court awarded the defendant residential custody of the child and directed the plaintiff to pay $2,599.58 per month in child support. The Appellate Division observed that where the combined parental income exceeds the statutory cap, the court, in fixing the basic child support obligation on income over the statutory cap, has the discretion to apply the factors set forth in Domestic Relations Law § 240(1–b)(f), or to apply the statutory percentages, or to apply both (see Domestic Relations Law § 240[1–b][c][3]). The court must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap. Such articulation should reflect a careful consideration of the stated basis for the court’s exercise of discretion, the parties’ circumstances, and the court’s reasoning why there should or should not be a departure from the prescribed percentage. It found that the Supreme Court stated that it applied the child support percentage to the amount above the statutory cap primarily due to the parties’ considerable income, the needs of the child, and the fact that the defendant was not seeking any add-on contributions from the plaintiff for the child’s expenses, other than basic child support. Under the circumstances presented, the court providently exercised its discretion in applying the child support percentage to the parties’ income over the statutory cap.

 

 

 

The party seeking to overcome the  presumption that property acquired during the marriage is presumed to be marital property has the burden of proving that the property in dispute is separate property. Testimony which was not confirmed by any documentary evidence, and found to be incredible did not meet that burden.

 

 

            In Keren v Keren, --- N.Y.S.3d ----, 2022 WL 221138 (Mem), 2022 N.Y. Slip Op. 00412(2d Dept.,2022) the parties were married on September 1, 1991. In 2016, the plaintiff commenced this action for a divorce. At trial, the defendant testified that he owned a percentage interest in Manhattan Bridge Car Wash, Inc. (MBCW), which was incorporated during the marriage. MBCW owned a lease to a car wash in Brooklyn, but sold that lease in 2007 and used the proceeds of that sale to purchase a building in Manhattan. In 2016, MBCW sold the building in Manhattan and used the proceeds of that sale to buy a building in Huntington, which was leased by Walgreens. The defendant testified that he had no personal responsibility for the Huntington property, but, as a shareholder of MBCW, he received a portion of the monthly rent from the Walgreens lease. Supreme Court awarded the plaintiff 50% of the defendant’s interest in MBCW, and 50% of the defendant’s interest in the Huntington property in the event the property was ever sold. The defendant appeals.

 

            The Appellate Division held that Supreme Court did not improvidently exercise its discretion in awarding the plaintiff 50% of his interest in MBCW. Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property. The defendant’s brother testified at the trial that he gifted the defendant his interest in MBCW. However, this assertion was not confirmed by any documentary evidence, and the Supreme Court found the defendant’s brother’s testimony to be incredible. Accordingly, the defendant did not meet his burden of establishing that his interest in MBCW was separate property.

 

            The Appellate Division observed that when both spouses equally contribute to a marriage of long duration, the division of marital property should be as equal as possible .Here, both parties were involved with MBCW during this 25–year marriage, and the equal distribution of the defendant’s interest was a provident exercise of the Supreme Court’s discretion

 

 

Father’s disruptive behavior which was grossly disrespectful to the Supreme Court and precipitated his removal from the virtual courtroom constituted a knowing and wilful default

 

          In Matter of Smith v Bullock, --- N.Y.S.3d ----, 2022 WL 302511 (Mem), 2022 N.Y. Slip Op. 00671 (2d Dept.,2022) Supreme Court  granted the petition of the nonparent Judith Smith for custody of the child on default. The Appellate Division dismissed the fathers appeal as no appeal lies from an order that was entered upon the default of the appealing party, except with respect to matters which were the subject of contest . The record demonstrated that the father’s disruptive behavior over the course of the proceedings, and specifically, during a conference on January 27, 2021, was grossly disrespectful to the Supreme Court and precipitated his removal from the virtual courtroom. Therefore, it held that the court acted properly in excluding the father from further participation in the proceedings, as the father’s conduct was sufficient to constitute a knowing and willful default (citing Matter of Bartosz B. [Andrzej B.], 187 A.D.3d 894, 896, 134 N.Y.S.3d 45; Matter of Nyree S. v. Gregory C., 99 A.D.3d 561, 562, 951 N.Y.S.2d 874; Matter of Kondratyeva v. Yapi, 13 A.D.3d 376, 788 N.Y.S.2d 394; Matter of McConnell v. Montagriff, 233 A.D.2d 512, 650 N.Y.S.2d 768). The determinations made after the father was found in default were not subject to direct appellate review (see CPLR 5511)

         

 

Appellate Division, Fourth Department

 

 

A case that involves an initial custody determination cannot properly be characterized as a relocation case to which the factors set forth in Matter of Tropea v. Tropea need be strictly applied

 

            In Matter of Hochreiter v Williams, --- N.Y.S.3d ----, 2022 WL 262962 (Mem), 2022 N.Y. Slip Op. 00543 (4^th Dept., 2022) the Appellate Division held that a case that involves an initial custody determination, cannot properly be characterized as a relocation case to which the application of the factors set forth in Matter of Tropea v. Tropea (87 N.Y.2d 727 [1996]) need be strictly applied. Although a court may consider the effect of a parent’s [proposed] relocation as part of a best interests analysis, relocation is but one factor among many in its custody determination The relevant issue is whether it is in the best interests of the child to reside primarily with the mother or the father.

 

 

 

 

22 NYCRR 202.6 - Request for judicial intervention Rule Amended Effective February 1, 2022 to include in subdivision (b) that a request for judicial intervention shall be filed, without fee for an application for a  “change of sex designation”

 

Section 202.6. Request for judicial intervention

(a) At any time after service of process, a party may file a request for judicial intervention. Except as provided in subdivision (b) of this section, in an action not yet assigned to a judge, the court shall not accept for filing a notice of motion, order to show cause, application for ex parte order, notice of petition, note of issue, notice of medical, dental or podiatric malpractice action, statement of net worth pursuant to section 236 of the Domestic Relations Law or request for a preliminary conference pursuant to section 202.12(a) of this Part, unless such notice or application is accompanied by a request for judicial intervention. Where an application for poor person relief is made, payment of the fee for filing the request for judicial intervention accompanying the application shall be required only upon denial of the application. A request for judicial intervention must be submitted, in duplicate, on a form authorized by the Chief Administrator of the Courts, with proof of service on the other parties to the action (but proof of service is not required where the application is ex parte).

 

(b) A request for judicial intervention shall be filed, without fee, for any application to a court not filed in an action or proceeding, as well as for a petition for the sale or finance of religious/not-for-profit property, an application for change of name or change of sex designation, a habeas corpus proceeding where the movant is institutionalized, an application under CPLR 3102(e) for court assistance in obtaining disclosure in an action pending in another state, a retention proceeding authorized by article 9 of the Mental Hygiene Law, a proceeding authorized by article 10 of the Mental Hygiene Law, an appeal to a county court of a civil case brought in a court of limited jurisdiction, an application to vacate a judgement on account of bankruptcy, a motion for an order authorizing emergency surgery, or within the City of New York, an uncontested action for a judgment for annulment, divorce or separation commenced pursuant to article 9, 10 or 11 of the Domestic Relations Law, and an application for an extreme risk protection order.

 

(c) In the counties within the City of New York, when a request for judicial intervention is filed, the clerk shall require submission of a copy of the receipt of purchase of the index number provided by the County Clerk, or a written statement of the County Clerk that an index number was purchased in the action. Unless otherwise authorized by the Chief Administrator, the filing of a request for judicial intervention pursuant to this section shall cause the assignment of the action to a judge pursuant to section 202.3 of this Part. The clerk may require that a self-addressed and stamped envelope accompany the request for judicial intervention.

 

 

February 1, 2022

 

Appellate Division, First Department   

 

 

Courts may not direct the sale of marital property held by spouses as tenants by the entirety, prior to entry of a judgment altering the legal relationship between spouses, unless the parties have consented to sell.

 

            In Taglioni v Garcia, 200 A.D.3d 44, 157 N.Y.S.3d 7, 2021 N.Y. Slip Op. 05936 (1^st Dept.,2022) the Appellate Division reversed an order which ordered the sale of the marital residence pendente lite. It observed that it is well-settled that, prior to entry of a judgment altering the legal relationship between spouses by granting divorce, separation or annulment, courts may not direct the sale of marital property held by spouses as tenants by the entirety, unless the parties have consented to sell. Moreover, courts must respect conditions placed on a party’s consent to the sale of such property, and lack the authority to direct a sale where those conditions have not been met.  It found that the record did not reflect a meeting of the minds and did not contain specific terms sufficient to evince the wife’s consent to the ordered sale. The record established that, contrary to the determination of the court below, the parties did not agree to listing their jointly owned townhouse at $6 million or to the sale of the townhouse. Although the parties identified targets of their negotiations, neither the wife nor her counsel ever explicitly agreed to the contemplated sale pendente lite. As indicated during the parties’ conferences before the court and by the parties’ competing proposed orders, the wife’s negotiating targets remained at all times contingent on stipulation of other disputed material terms. Additionally, the court erred in imposing conditions on the sale of the property that were not discussed or agreed to on the record, namely, that the townhouse be listed before the repairs were made, that the price be reduced in specified amounts at set dates, and that the parties accept a purchase price offer of 95% or more of the list price.

 

Appellate Division, Second Department

 

 

When determining an appropriate amount of child support, a court should consider the children’s actual needs and the amount required for them to live an appropriate lifestyle.

 

         In Hepheastou v Spaliaras, 2022 WL 164200 (2d Dept.,2022) the parties were married in May 2013, and had two children. In June 2016, the plaintiff commenced this action for a divorce. On March 22, 2017, the parties entered into a stipulation which provided that they would have equal parental access. After trial, by judgment of divorce entered October 13, 2020, the Supreme Court, inter alia, awarded sole residential and legal custody of the children to the plaintiff, calculated the defendant’s child support obligation to be $3,072 per month for the two children based upon the parties’ income in excess of the statutory cap, directed the defendant to pay 50% of the health insurance premiums for the children, directed the defendant to pay child support arrears, and awarded the plaintiff counsel fees in the sum of $30,000.

 

            The Appellate Division observed that with respect to combined parental income exceeding that amount, the court has the discretion to apply the statutory child support percentage, or to apply the factors set forth in Domestic Relations Law § 240(1–b)(f) or to utilize “some combination of th[ose] two” methods. The court must “articulate its reason or reasons for [that determination], which should reflect a careful consideration of the stated basis for its exercise of discretion, the parties’ circumstances, and its reasoning why there [should or] should not be a departure from the prescribed percentage”. In addition to providing a record explanation for deviating or not deviating from the statutory formula, a court “must relate that record articulation” to the factors set forth in Domestic Relations Law § 240(1–b)(f). The factors include a consideration of the financial resources of the custodial and noncustodial parent, and the standard of living the child would have enjoyed if the parties had remained together. While the Supreme Court based its decision to calculate child support on combined parental income in excess of the statutory cap so as to increase the defendant’s child support obligation from $1,896.19 per month to $3,072 per month on certain statutory factors set forth in Domestic Relations Law § 240(1–b)(f), the record did not support this determination. The court stated that it considered the standard of living the children would have enjoyed had the household remained intact (see Domestic Relations Law § 240[1–b][f][3]), as well as the financial resources of the parties. The record, however, did not demonstrate that the children are not living in accordance with the lifestyle they would have enjoyed had the household remained intact. Moreover, when determining an appropriate amount of child support, a court should consider the children’s actual needs and the amount required for them to live an appropriate lifestyle. The record demonstrated that the plaintiff had no extraordinary expenses, lived rent-free at her parents’ house, reported no child care costs, and reported minimal costs for education and extracurricular activities. Under these circumstances, it found it appropriate to apply the statutory percentage to the statutory cap of $154,000, with no further child support obligation based on the combined income over that amount.

 

 

 

Income may be imputed based on a party’s earning capacity, as long as the court articulates the basis for imputation and the record evidence supports the calculations.

 

            In Nosratabdi v Aroni, 198 A.D.3d 976, 157 N.Y.S.3d 49, 2021 N.Y. Slip Op. 05862 (2d Dept, 2021) the parties were married on August 8, 1999 and there were three children of the marriage. The plaintiff commenced the action for a divorce on or about June 12, 2013, and both parties agreed to have the matter heard and determined by a referee. Prior to the start of trial, the parties stipulated to the custody of the children. The defendant was awarded sole legal and residential custody of the eldest child, and the plaintiff was awarded sole legal and residential custody of the two younger children. The referee imputed an annual income of $80,000 to the defendant and calculated his monthly child support obligation to the plaintiff for the two younger children to be $1,666.77. The referee determined the plaintiff’s annual income for maintenance and child support purposes to be $23,943.31 and her monthly child support obligation for the eldest child to be $339.12. The referee also awarded the plaintiff maintenance of $1,500 per month for four years. Additionally, the referee awarded the marital residence solely to the plaintiff. The Appellate Division held that the referee’s discretionary determination to impute an annual income to the defendant of $80,000 for the purpose of calculating child support and maintenance, based upon the defendant’s prior work experience in the real estate business, as well as money received from his father, was supported by the record. However, the referee erred in determining the plaintiff’s annual income for maintenance and child support purposes to be only $23,943.31. Here, the referee failed to take into account the plaintiff’s full ability to provide support, Income may be imputed based on a party’s earning capacity, as long as the court articulates the basis for imputation and the record evidence supports the calculations. instead determining her annual income based solely on a tax return for the 2015 fiscal year, in which the plaintiff had worked only from May through December. More recent income information was available from 2016 earnings statements provided by the plaintiff’s employer, which the referee should have used to estimate the plaintiff’s income for a full year. It remitted the matter to the Supreme Court for a new determination of maintenance and child support.

 

 

Property acquired by the plaintiff after the execution of the separation agreement was separate property where defendant did not challenge the plaintiff’s testimony that she used separate funds from an inheritance to pay for the property

 

      In Daoud v Daoud, 198 A.D.3d 952, 157 N.Y.S.3d 33, 2021 N.Y. Slip Op. 05849

(2d Dept.,2021) the parties were married on February 9, 1978. On November 15, 2007, they entered into a separation agreement, which they filed in Nassau County. In 2015, the plaintiff commenced this action for a divorce. Supreme Court entered a judgment of divorce, inter alia, awarding the plaintiff maintenance arrears of $70,239.91 and awarded the plaintiff real property located in Tabarja, Lebanon as separate property. The Appellate Division affirmed. It held that the  Supreme Court correctly determined that the Tabarja property was the plaintiff’s separate property. The term “marital property” is defined by statute as “all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action” (Domestic Relations Law § 236[B][1][c]). Here, it was undisputed that the Tabarja property was acquired by the plaintiff after the execution of the separation agreement in 2007, and the defendant did not challenge the plaintiff’s testimony that she used separate funds from an inheritance to pay for the Tabarja property. Moreover, the separation agreement specifically provided that “[e]ach party shall hereafter own independently of any claim or right of the other party, all of the items of real property to which he or she now or hereafter shall have legal title.”    

 

Appellate Division, Third Department

 

 

Summary judgment is an appropriate vehicle for resolving family offense “proceedings where no triable issues of fact exist

            In Matter of Stephanie R v Walter Q, --- N.Y.S.3d ----, 2022 WL 119510, 2022 N.Y. Slip Op. 00219 (3d Dept.,2022) a family offense proceeding the Appellate Division held that Summary judgment is an appropriate vehicle for resolving family offense “proceedings where no triable issues of fact exist. Collateral estoppel comes into play when four conditions are fulfilled:(1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits. (Conason v. Megan Holding, LLC, 25 N.Y.3d 1, 17, 6 N.Y.S.3d 206, 29 N.E.3d 215 [2015])

 

 

 

Family Court lacks authority to order a child protective agency, such as DSS, to commence a neglect proceeding against a parent

 

            In Matter of Donald QQ v Stephanie RR, 198 A.D.3d 1155, 156 N.Y.S.3d 467, 2021 N.Y. Slip Op. 05760 (3d Dept.,2021) a custody proceeding commenced to modify a prior order of custody the Appellate Division reversed an order of the Family Court which sua sponte directed the Department of Social Services (DSS) to commence neglect proceeding against the mother and father. The Appellate Division held that Family Court lacks authority to order a child protective agency, such as DSS, to commence a neglect proceeding against a parent; abrogating Matter of Gage II, 156 A.D.3d 1208 and Matter of Johnson v. Johnson, 279 A.D.2d 814, and in the absence of any express grant of authority by statute, Family Court erred in sua sponte directing DSS to commence a neglect proceeding against father and mother. Family Court is a court of limited jurisdiction that cannot exercise powers beyond those granted to it by statute. The relevant statute provides that a proceeding under Family Ct Act article 10 may be “originate[d]” either by “a child protective agency” or “a person on the court’s direction” (Family Ct Act § 1032[a], [b]).That authority is limited to directing only a “person” to do so, which DSS is not.

 

 

January 16, 2022  

 

Court Rules

 

22 NYCRR 202.5-c Electronic Document Delivery System (new)

 

 

The Chief Administrator promulgated  new section 202.5-c of the Uniform Civil Rules for the Supreme and County Courts, effective immediately, to read as follows:

 

§ 202.5-c. Electronic Document Delivery System.

 

(a) Court documents may be transmitted to the courts of the unified court system by means of the electronic document delivery system (“EDDS”) only to the extent and in the manner provided in this section. For purposes of this section, “clerk of the court” shall mean the county clerk where the court is the Supreme Court or a County Court, and the chief clerk of the court where it is any other court.

 

(b) How to use the EDDS. In order for a party to a court action or proceeding to use the EDDS to transmit one or more court documents to a court, such party must: (1) have use of a computer or other electronic device that permits access to the Internet, an email address and telephone number, and a scanner to digitize documents or some other device by which to convert documents into an electronically transmissible form; and (2) access a web site provided by the UCS for the transmission of the document(s) by the EDDS and, using that web site: (i) select a court to be the recipient of the document(s) and, where the Chief Administrator has authorized use of the EDDS for the filing of documents in an action or proceeding and the party is using the EDDS for such purpose, so indicate, (ii) enter certain basic information about the action or proceeding; (iii) upload the document(s) thereto in pdf or some other format authorized by the Chief Administrator of the Courts; and (iv) if a fee is required for the filing of the document(s), follow the on-line instructions for payment of that fee.

 

(c) When may the EDDS be used. The EDDS may be used for the transmission of documents in such courts and in such classes of cases, and for such purposes including the filing thereof with a court, as may be authorized by order of the Chief Administrator. Notwithstanding any other provision hereunder: (1) a party may not use the EDDS to transmit documents in a court action or proceeding in a court in a county in which consensual or mandatory e-filing is available in such an action or proceeding, except that EDDS may be used in such a county for the purpose of (i) converting a pending action to e-filing in accordance with section 202.5-b(2)(iv) of these rules, (ii) transmitting exhibits for a conference, hearing, or trial; or (iii) any other use as may be authorized by the Chief Administrator; (2) unless the Chief Administrator shall otherwise provide as to a particular court or class of cases, a party may only use the EDDS for the transmission of documents for a purpose other than for filing in an action or proceeding; (3) where the Chief Administrator authorizes use of the EDDS for the transmission of documents for filing with a court in an action or proceeding, any such documents shall not be deemed filed until the clerk of such court or his or her designee shall have reviewed the documents and determined (i) that they are complete, (ii) that any fee that is required before the documents may be filed has been paid, (iii) that the documents include proof of service upon the other party or parties to the action or proceeding when proof of service is required

 

December 16, 2021

 

Appellate Division, First Department

 

Family offense of aggravated harassment in second degree based on Penal Law § 240.30(1)(a) as it existed before amendment in 2014 vacated where statute unconstitutional

 

            In Matter of Giovanni De M v Nick W., --- N.Y.S.3d ----, 2021 WL 5893750 (Mem), 2021 N.Y. Slip Op. 06947(1^st Dept.,2021) the Appellate Division held that the determination that respondent committed the family offense of aggravated harassment in the second degree based on Penal Law § 240.30(1)(a) as it existed before amendment in July 2014 had to be vacated because the statute was held to be unconstitutionally vague (see People v. Golb, 23 N.Y.3d 455, 466–467 [2014])

 

 

Termination of eligibility for cash public assistance during the pendency of the support proceeding did not eliminate Family Court’s jurisdiction over the petition seeking support

 

In Matter of Commissioner of Social Services on behalf of Karla M. Assignor v Omar G.,

--- N.Y.S.3d ----, 2021 WL 5893751, 2021 N.Y. Slip Op. 06956(1^st Dept., 2021) the DSS filed a petition seeking support for the child from respondent father. At the time the petition was filed, the child was receiving cash public assistance and Medicaid benefits. The petition requested an order of support payable to DSS or, in the event assignment to DSS ended, to the mother. It also requested a health insurance order. Cash public assistance for the child ended on January 31, 2020. The child’s Medicaid benefits remained active through January 2021. When the petition came before the Support Magistrate on February 11, 2020, the Magistrate dismissed the petition on the ground that Family Court lacked subject matter jurisdiction over DSS’s claims because DSS sought only retroactive support and health insurance costs. DSS objected to the order of dismissal, and Family Court denied the objection. The Appellate Division reversed and vacated the dismissal. It found that  DSS properly filed its child support petition while the child was still receiving cash public assistance, and Family Court had jurisdiction to determine the petition. After a child support petition is filed, the Family Court is required pursuant to section 434 of the Family Court Act, to “make an order for temporary child support pending a final determination, in an amount sufficient to meet the needs of the child, without a showing of immediate or emergency need”. The temporary order should have continued after the child became ineligible for cash assistance, pending a final determination (see Family Court Act §§ 435[b]; 443; 571[3][a]). If not for Family Court’s adjournments, a temporary support order would have been issued before the child’s cash public assistance ended. The termination of eligibility for cash public assistance during the pendency of the proceeding did not eliminate Family Court’s jurisdiction over the petition seeking support and health insurance costs (Friedlander v. Friedlander, 244 A.D.2d 812, 666 N.Y.S.2d 257 [3d Dept. 1997]; see also Matter of Broome County Dept. of Social Servs. v. Kelley, 125 A.D.3d 1187, 4 N.Y.S.3d 617 [3d Dept. 2015]; Matter of Oneida County Dept. of Social Servs. v. Christman, 125 A.D.3d 1409, 3 N.Y.S.3d 222 [4th Dept. 2015]).

 

 

Appellate Division, Second Department

 

 

Disputes concerning child custody and visitation are not subject to arbitration

 

In Matsui v Matsui, --- N.Y.S.3d ----, 2021 WL 5816535 (Mem), 2021 N.Y. Slip Op. 06843 (2d Dept.,2021) the Appellate Division held that the Supreme Court erred in declining to exercise jurisdiction over the parties’ custody/parental access disputes on the basis that their stipulation of settlement, which was incorporated but not merged into their judgment of divorce, contained an arbitration clause (see Matter of Goldberg v. Goldberg, 124 A.D.3d 779, 780, 1 N.Y.S.3d 360; Schechter v. Schechter, 63 A.D.3d 817, 881 N.Y.S.2d 151; Glauber v. Glauber, 192 A.D.2d 94, 98, 600 N.Y.S.2d 740). Disputes concerning child custody and visitation are not subject to arbitration as the court’s role as parens patriae must not be usurped.

 

 

Termination after a hearing pursuant to Family Court Act § 1027 should not be disturbed unless it lacks a sound and substantial basis in the record.

           

 In Matter of Kai’ere D., --- N.Y.S.3d ----, 2021 WL 5816560 (Mem), 2021 N.Y. Slip Op. 06845 (2 Dept.,2021) the Appellate Division observed that at a hearing pursuant to Family Court Act § 1027, temporary removal is authorized only where the court finds it necessary to avoid imminent risk to the child’s life or health. There must be a showing of ‘near or impending’ imminent danger, ‘not merely possible’ danger to the child. Its determination in this regard should not be disturbed unless it lacks a sound and substantial basis in the record.

 

 

Trial court did not err in taking judicial notice of wife’s statement of net worth and its attachments which had been filed with the court, but were not admitted into evidence at trial, in awarding the husband an equitable share of her pension and retirement accounts.

 

       In Garcia v Garcia, --- N.Y.S.3d ----, 2021 WL 5621987 (Mem), 2021 N.Y. Slip Op. 06674 (2d Dept.,2021) the  marital residence was an apartment purchased by the plaintiff in July 2001, approximately two months prior to the date of the marriage. The defendant lived with the plaintiff in the marital residence for most, if not all, of the period from the date of the marriage until 2005, when the defendant relocated to the Philippines. The plaintiff commenced the action for a divorce in August 2010. The Appellate Division held that Supreme Court properly determined that the marital residence was the plaintiff’s separate property, since she purchased the apartment prior to the marriage.  It observed that any appreciation in the value of separate property due to the contributions or efforts of the nontitled spouse will be considered marital property. However, there was no evidence that the marital residence appreciated in value from any factor other than market forces. Therefore, the appreciation remained separate property.

 

            In awarding the defendant an equitable share of the plaintiff’s pension and retirement accounts, the court relied upon the plaintiff’s statement of net worth with attached documents, which were not admitted into evidence at trial. The Appellate Division found that there was no merit to the plaintiff’s claim that the court erred in taking judicial notice of her statement of net worth and its attachments, which had been filed with the court (see Baumgardner v. Baumgardner, 98 A.D.3d 929, 931, 951 N.Y.S.2d 64). Plaintiff’s challenge to this award was without merit.

 

 

Generally, it is the responsibility of both parties to maintain the marital residence during the pendency of a matrimonial action. Where defendant had exclusive occupancy during the pendency of the action proper to award plaintiff half of the marital funds the defendant used to pay the carrying costs of the marital residence.

 

 

            In Palazolo v Palazolo, --- N.Y.S.3d ----, 2021 WL 5622008, 2021 N.Y. Slip Op. 06696(2d Dept.,2021) the parties were married on June 22, 1991. The plaintiff commenced the action for a divorce on February 4, 2011.

 

            The Appellate Division pointed out that the proceeds of an inheritance are separate property. However, where separate property has been commingled with marital property, for example in a joint bank account, there is a presumption that the commingled funds constitute marital property. A party may overcome the presumption by presenting sufficient evidence that the source of the funds was separate property. Although the shares of stock the plaintiff inherited from her mother were placed in an investment account which also contained marital assets, the plaintiff sufficiently traced the source of the majority of those shares which listed a purchase date of either August 17, 2001, or August 6, 2002, to her inheritance, so as to rebut the presumption that those shares were marital property. The use of interest and dividends accrued on those shares for marital purposes did not transmute the shares themselves into marital property . However, the evidence revealed a discrepancy in the investment account statements with regard to certain shares of stock, which listed an August 17, 2001, purchase date, but could not have been part of the plaintiff’s inheritance. Due to this discrepancy, the plaintiff met her burden of tracing only 1,703 shares of the stock to her inheritance and the court should have awarded the plaintiff only 1,703 shares of the  stock as her separate property, and should have divided the remaining 838 shares of the  stock equally between the parties.

 

            The Appellate Division noted that generally, it is the responsibility of both parties to maintain the marital residence during the pendency of a matrimonial action. The defendant had exclusive occupancy of the marital residence throughout the proceedings, and he used marital funds to pay the carrying costs of the marital residence, including taxes, insurance, common charges, and utilities. However, pursuant to an agreement, the parties had each received identical sums from their joint account to cover their household expenses during the proceedings. The defendant’s expenditures for the carrying costs of the marital residence were in addition to the funds he had already received pursuant to that agreement. Under these circumstances, the Supreme Court providently exercised its discretion in awarding the plaintiff $70,000, representing half of the marital funds the defendant used to pay the carrying costs of the marital residence.

 

            The Appellate Division held that Supreme Court properly awarded the plaintiff half of the defendant’s New York State Teacher’s Retirement System pension benefits which were earned during the marriage prior to commencement of this action. The fact that the defendant’s former wife received a portion of the defendant’s pension benefit, pursuant to a qualified domestic relations order entered in connection with his prior divorce, does not diminish the marital portion of the defendant’s pension benefit, or the plaintiff’s entitlement to a share of the benefits earned during the marriage.

 

 

Appellate Divison, Third Department

 

 

Unjust and inappropriate to penalize the wife in making a maintenance award, for making the decision to earn significantly less money for the same reason as the husband.

Where both parties violated the automatic orders to pay off debts, pay taxes, cover everyday expenses and pay legal fees Supreme Court properly canceled out each party’s alleged wasteful dissipation of the assets in coming to its determination on equitable distribution.

 

            In Harris v Schreibman, --- N.Y.S.3d ----, 2021 WL 5701812, 2021 N.Y. Slip Op. 06724 ( 3d Dept.,2021) Plaintiff ( wife) and defendant (husband) were married in September 2004 and had three children together – one born in 2008 and twins born in 2010. The parties’ marital relationship informally ended in 2012, but they elected to defer formal divorce proceedings and continued to share a residence and co-parent their children.

 

            Supreme Court awarded the wife, pursuant to the statutory guidelines, maintenance of $1,963.92 monthly, or $23,567 annually, for a duration of 3 years and 10 months. The court explicitly stated that it considered that factors in Domestic Relations Law § 236(B)(6)(e) and declined to deviate from the guidelines. Although the wife was earning substantially less money than she did in her previous employment, she lost her job through no fault of her own and was reluctant to take a position that would require her to commute into New York City or travel a lot, taking her away from the children. The husband testified that this was the same reason that he ran for a judgeship to which he was elected, a position that paid less than half of what he was previously earning while working as a partner in a New York City law firm. The Appellate Division held that it seemed unjust and inappropriate to penalize the wife for making the decision to earn significantly less money for the same reason as the husband. Additionally, although the wife was arguably self-sufficient, the court properly considered the standard of living that the parties established during the marriage in determining that the maintenance award was not unjust or inappropriate. It saw no abuse of discretion in Supreme Court awarding the wife maintenance in accordance with the statutory guidelines. Nor did it discern any abuse of discretion in Supreme Court ordering maintenance for 3 years and 10 months, which is the maximum length of time under the advisory schedule (see Domestic Relations Law § 236[B][6][f][1]). Because the court provided a reasoned analysis of the factors it ultimately relied upon in awarding maintenance and setting its duration, it declined to disturb the maintenance award. The Appellate Division found that both parties substantially reduced their income to be able to spend more time with their children. As determined by the court, neither party reduced resources or income in order to reduce or avoid the parties obligation for maintenance. Thus, the court did not err in declining to impute income based upon the wife’s prior earnings.

 

 

            The Appellate Division held that  Supreme Court erred in failing to require the wife to contribute to the cost of the children’s health insurance and in failing to prorate each party’s share of the premiums as required by the Child Support Standards Act. The Child Support Standards Act provides that,“[T]he cost of providing health insurance benefits shall be prorated between the parties in the same proportion as each parent’s income is to the combined parental income” (Domestic Relations Law § 240[1–b][c][5][ii]). “If the non-custodial parent is ordered to provide such benefits, the custodial parent’s pro rata share of such costs shall be deducted from the basic support obligation” (Domestic Relations Law § 240[1–b][c][5][ii]). Although Supreme Court failed to deduct the husband’s pro rata share of the health insurance from the basic child support obligation, the record was sufficient to allow it to adjust the child support accordingly.

 

            The husband contended that Supreme Court erred in treating a   $50,000 given to the parties by the wife’s mother as a loan and in granting the wife a $25,000 credit. “[I]t is well settled under the common law of this [s]tate that a party claiming that a transfer is a gift has the burden of proof by clear and convincing evidence that the gift was made with the requisite donative intent”. The evidence showed that the wife’s mother did not intend to be repaid the $50,000 and, even if she did, her intent was for those payments to go into 529 accounts for the children, not to receive them as cash payments. Accordingly, Supreme Court erred in determining that the parties were responsible for repaying the loan to the wife’s mother and awarding the wife a $25,000 credit from the husband for the payment.

 

            Both parties argued that Supreme Court wrongly concluded that they violated the automatic stay orders and, at the same time each maintains that the other party wastefully dissipated marital property by violating them. The Appellate Division found that Supreme Court properly concluded that when the husband transferred $38,000 in cash to pay off campaign debts, he directly controverted the automatic order set forth in Domestic Relations Law § 236(B)(2)(b)(1). Similarly, the wife did not have the husband’s written consent to remove money from her retirement accounts to pay off debts (see Domestic Relations Law § 236[B][2][b][2]). Supreme Court properly concluded that both the husband and the wife violated the automatic orders. As for the wife’s use of the severance payment, the court properly declined to consider this wasteful dissipation of marital property because she used those funds for renovations to the marital residence, where both parties resided, food, outings with the children and other living expenses. However, it was clear from the testimony that, despite violating the automatic orders, the parties did so to pay off debts, pay taxes, cover everyday expenses and pay legal fees. As such, Supreme Court properly canceled out each party’s alleged wasteful dissipation of the assets in coming to its determination on equitable distribution.

 

 

           

Third Department holds that considering the mother’s extensive participation in the proceeding the order which granted the father custody upon  default in her appearing for a Lincoln hearing scheduled during the trial of this matter was not a default situation.

 

            In Matter of Patrick UU v Frances W, 2021 WL 5701826 (3d Dept.,2021) the mother appealed from an order which granted the father custody upon her default in appearing for a Lincoln hearing scheduled during the trial of this matter. The father and the AFC argued that the appeal must be dismissed because the order was properly entered on the mother’s default. The Appellate Division held that considering the mother’s extensive participation in the proceeding, this was not a default situation (citing Matter of Amanda I. v. Michael I., 185 A.D.3d 1252, 1253–125 [2020]; Matter of Leighann W. v. Thomas X., 141 A.D.3d 876, 877 [2016]). The mother made an opening statement, extensively cross-examined the father, whose testimony extended over the first three days of the hearing, partially completed cross-examination of the child’s teacher and filed a written summation. She made numerous objections during the hearing and offered several exhibits into evidence. Despite her failure to appear on March 6, 2020, it  concluded that the order was not entered on default and that the mother’s appeal may be heard. That said, the record confirmed that the mother was on clear notice that the hearing would resume on March 6, 2020. By failing to appear or otherwise alert Family Court that she would be unable to attend that day, the court acted within its discretion in closing the proof.

 

            The Appellate Division  agreed with Family Court’s finding that a change in custody was in the child’s best interests.  It found no abuse of discretion in Family Court drawing a negative inference against the mother for failing to bring the child to the rescheduled Lincoln hearing. A parent served with an order to produce a child for a Lincoln hearing is obligated to comply and may not simply ignore the court’s directive. A Lincoln hearing serves the vital purpose of allowing a court to ascertain a child’s preference and concerns, as well as corroborating information obtained during the fact-finding hearing. By failing to cooperate, the mother undermined the court’s opportunity to obtain this information. The mother’s failure was particularly troubling given that the AFC confirmed that the child was willing to participate. It found no error with the court drawing a negative inference to the extent that the child would have confirmed his attorney’s stated position that he wished to return to school and spend more time with his father.

 

 

Family Court

 

 

Family Court holds that a  “best interests” standard applies to a non-respondent parent's request for release under Article 10-A of the Family Court Act.

 

             In Matter of John A, --- N.Y.S.3d ----, 2021 WL 5753931, 2021 N.Y. Slip Op. 21326 (Fam Ct, 2021) Family court observed that Family Court Act §§ 1035(d), 1052(a)(ii), and 1054 were amended in 2015 to authorize the dispositional alternative of a release of the subject child to a non-respondent parent. Family Court Act Article 10-A was not similarly amended. The word “release” or the phrase “release to a non-respondent parent” does not appear anywhere in Family Court Act § 1089, the primary section governing permanency hearings. However, because permanency hearings have been held to constitute “phases” of the dispositional proceedings, the dispositional option of a release to a non-respondent parent must be a valid disposition at a permanency hearing. In re Demetria FF., 140 A.D.3d 1388, 1390, 33 N.Y.S.3d 570 [3d Dept. 2016]. In Matter of Elizabetta C., 60 Misc. 3d 603, 78 N.Y.S.3d 660 [Fam. Ct., 2018], the Court held, that once a parent intervenes in an article 10 action, the court may not place the child without the intervening parent’s consent, unless the party advocating placement demonstrates that the intervening parent is unfit to provide proper care for the child or that some other type of extraordinary circumstances exist. In Matter of Sabrina M.A., 195 A.D.3d 709, 145 N.Y.S.3d 376 [2d Dept. 2021]  the non-respondent father appealed from a permanency hearing order which continued the subject child’s placement, arguing that “there was no showing that he is unfit or other extraordinary circumstances and the court should have immediately released the child to his care.” The Second Department held that the “best interests” of the child standard is applicable to the father’s request for a release of the subject child and that the non-respondent’s fitness would be a “primary factor” among others. Because the Third Department has not addressed the issue, the Court applied the law in Matter of Sabrina M.A., and applied  a “best interests” standard to the facts of the present case.