Recent Decisions and Legislation, December 13, 2023

 

December 6, 2023

 

A court cannot reform an agreement to conform to what it thinks is proper, if the parties have not assented to such a reformation. A plenary action is necessary to reform a stipulation.

 

In Anderson v Anderson, --- N.Y.S.3d ----, 2023 WL 8246131, 2023 N.Y. Slip Op. 06108 (2d Dept.,2023) in July 2002, the plaintiff commenced this action for divorce. On February 1, 2005, the parties entered into an oral stipulation of settlement in open court, which provided, inter alia, that the defendant was presently receiving disability benefits under his pension plan, but that “there will come a time that he will be entitled to retirement benefits, and, at that time, which will be at age sixty two, he will divide the marital share of the pension with his wife equally.” The stipulation of settlement was incorporated but not merged into the parties’ judgment of divorce dated July 12, 2005. A domestic relations order  dated November 1, 2005, similarly provided that the plaintiff would receive a marital share of the defendant’s retirement benefits “at such time as [he] has retired and is actually receiving a regular service retirement allowance.” In 2017, the parties learned that the original DRO could not be implemented by the defendant’s pension plan, because the defendant had retired on a disability pension in 2001, and that the defendant’s disability pension would not be replaced by a regular service retirement pension when he reached age 62. In 2019, the defendant submitted a proposed amended DRO with notice of settlement, providing for distribution of a marital share of the defendant’s pension benefits to the plaintiff, commencing on his 62nd birthday. The plaintiff opposed the entry of the proposed DRO and moved, inter alia for issuance of an amended DRO providing for retroactive distribution of the plaintiff’s share of the defendant’s pension benefits. Supreme Court granted the plaintiff’s motion to the extent that it concluded that there was an “ambiguity between the parties’ oral Stipulation of Settlement and the Judgment of Divorce,” that the parties had been mistaken as to the status of the defendant’s pension, but their intent for the plaintiff to receive her “full marital portion of Defendant’s retirement benefits upon Defendant’s receipt of same” was clear, and that the plaintiff’s proposed amended DRO should be issued. The Appellate Division reversed. It  held that a court cannot reform an agreement to conform to what it thinks is proper, if the parties have not assented to such a reformation. Supreme Court should have rejected the plaintiff’s contention that the stipulation of settlement was ambiguous. The interpretation of the stipulation advanced by the plaintiff would render meaningless the terms of the stipulation providing that distribution of pension benefits to the plaintiff would commence in the future, when the defendant reached the age of 62. It held the agreement was not ambiguous. To the extent that the Supreme Court determined that the stipulation of settlement was affected by a mutual mistake, reformation was not appropriate. A motion is not the proper vehicle for challenging a separation agreement incorporated but not merged into a judgment of divorce. Rather, the plaintiff was required to commence a plenary action to reform the stipulation. In any event, reformation of the stipulation was unwarranted, as the parties’ mistake regarding the category of benefits the defendant would receive did not “involve a fundamental assumption of the contract.

 

 

Conclusory and nonspecific allegations relating to a change in circumstances are insufficient to justify a hearing on a change in custody

 

    In Matter of Wagner v Del Valle, --- N.Y.S.3d ----, 2023 WL 8246064, 2023 N.Y. Slip Op. 06143 (2d Dept.,2023) the Appellate Division held that in order to modify an existing custody arrangement, there must be a showing of a subsequent change in circumstances so that modification is required to protect the best interest[s] of the child. Entitlement to a hearing on a modification petition, however, is not automatic; the petitioning parent must make a threshold evidentiary showing of a change in circumstances demonstrating a need for modification in order to insure the child’s best interests. Conclusory and nonspecific allegations relating to a change in circumstances are insufficient to justify a hearing on the issue of whether a change in custody would be in the best interests of the child.

 

 

Supreme Court

 

The euthanasia of a companion animal without the consent of the other party is not violative of the Automatic Orders in a matrimonial action

 

            In  C.M., v. E.M., 2023 WL 8360025 (Sup. Ct.,2023) the Automatic Orders that were served action provided: (1) Neither part [sic] shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) 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. Supreme Court observed that the Automatic Orders are codified within DRL § 236(B)(2)(b). That section is entirely devoid of any reference to companion animals. Companion animals are not listed, nor provided in, the text of the Automatic Orders. The Supreme Court held that the euthanasia of a companion animal without the consent of the other party is not violative of the Automatic Orders in a matrimonial action.

 

 

CPLR § 2106 was adopted to provide alternatives to affidavits requiring notarization for those persons who are physically located outside the United States of America

 

            In S.B., v. A.K., --- N.Y.S.3d ----, 2023 WL 8409732, 2023 N.Y. Slip Op. 23373 (Sup. Ct, 2023) the action was commenced with the Plaintiff’s filing of a Summons with Notice. In support of his motion for an order declaring the Defendant in default for failure to appear Plaintiff submitted a Statement of Service pursuant to CPLR § 2106(b) which included as paragraph seven the following language:  ”I affirm this 10 day of March, 2023, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that I am physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.” The Affidavit of Service was not signed before a notary public or other authorized official (see generally U.S. Bank National Association v Langner, 168 AD3d 1021 [2d Dept 2019])” The Court observed that CPLR § 2309 sets forth the way oaths and affirmations are to be administered and notes in section (c) regarding oaths and affirmations taken without the state: An oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed has been acknowledged before the officer who administered the oath or affirmation. CPLR § 2106 was adopted to provide alternatives to affidavits requiring notarization in two instances, the first being for attorneys and health care practitioners licensed to practice within New York State who are not parties to an action and for those who are physically located outside the United States of America noting: An oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed has been acknowledged before the officer who administered the oath or affirmation. CPLR § 2106 also provides: ”(b) The statement of any person, when that person is physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form:” I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that I am physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.(Signature)” The Court held that Plaintiff’s submission of the CPLR § 2106(b) Statement was permissible and in acceptable form, and granted Plaintiff’s application to hold Defendant in default.

 

 

 

November 29, 2023

 

Appellate Division, First Department

 

Family Court no longer has “exclusive, continuing jurisdiction” over an enforcement  matter under the UCCJEA  Domestic Relations Law § 75 et seq. where neither the children nor their parents presently lived in this State. A “significant connection” hearing is not required where Family Court properly found that it lacked exclusive, continuing custody jurisdiction

 

          In Matter of Joshua A v. Shaquanda T, --- N.Y.S.3d ----, 2023 WL 8194305, 2023 N.Y. Slip Op. 06077 (1^st Dept., 2023) the Appellate Division affirmed an order which dismissed with prejudice and on the ground of lack of jurisdiction, petitioner fathers’ petition for enforcement of a visitation order. It found that Family Court no longer has “exclusive, continuing jurisdiction” over this matter under the Uniform Child Custody Jurisdiction and Enforcement Act, Domestic Relations Law § 75 et seq. as neither the children nor their parents presently lived in this State (Domestic Relations Law § 76–a[1][b]]). When the father filed the enforcement petition, he was living in New Jersey, and the mother and children were living in North Carolina.  It  rejected the father’s argument that a hearing was required to determine whether the children retained a “significant connection” to New York, since Family Court properly found that it lacked exclusive, continuing custody jurisdiction based solely on its determination that the parents and children did not presently reside in New York (Domestic Relations Law § 76–a[1][b]). It rejected the father’s argument in the alternative that, even if Family Court correctly found that it did not have exclusive, continuing jurisdiction under Domestic Relations Law § 76–a(1), it could have exercised discretionary jurisdiction under Domestic Relations Law § 76–a(2) if it found that it had initial child custody jurisdiction under Domestic Relations Law § 76. Neither child and neither parent lived in New York, and the father  failed to make out a prima facie showing that the children and either parent have a “significant connection” to New York and that there is “substantial evidence  . . .  available in this state concerning the [children’s] care, protection, training and personal relationships” (Domestic Relations Law § 76[1][a] and [b]).  The father also pointed out that it appeared that no other court would have had original custody jurisdiction at the time the father filed his enforcement petition (Domestic Relations Law § 76[1][d]). Had he sought to modify the existing custody or visitation orders, this might have been a basis for Family Court to exercise jurisdiction. However, the father’s petition sought only enforcement of the visitation order. The plain language of the discretionary provision of Domestic Relations Law § 76–a(2) provides jurisdiction only for modification of this state’s custody orders, and the father had not provided any authority for application of Domestic Relations Law § 76–a(2) to requests for enforcement.

 

 

           

Appellate Division, Second Department

 

 

Where father failed to comply with Family Court Act § 424–a court should have precluded him from offering evidence regarding his financial ability to pay support, and should have determined the amount of child support based on the needs of the child.

 

          In Matter of Grant v Seraphin, --- N.Y.S.3d ----, 2023 WL 8102714, 2023 N.Y. Slip Op. 06044 (2d Dept.,2023) the mother filed a petition seeking child support. At a hearing the mother made an application to determine the father’s child support obligation based on the needs of the child, as the father had failed to comply with required financial disclosure. The Support Magistrate denied the application and allowed the father to present evidence regarding his ability to pay support. The Support Magistrate, directed the father to pay child support of $283 biweekly. Family Court denied the mother’s objections to the order. The Appellate Division observed that  Family Court Act § 424–a “mandates the compulsory disclosure by both parties to a support proceeding of ‘their respective financial states,’ through the provision of tax returns, pay stubs, and sworn statements of net worth”. Where a respondent in a child support proceeding fails, without good cause, to comply with the compulsory financial disclosure mandated by Family Court Act § 424–a, ‘the court on its own motion or on application shall grant the relief demanded in the petition or shall order that, for purposes of the support proceeding, the respondent shall be precluded from offering evidence as to [the] respondent’s financial ability to pay support.  Here, the father failed to provide a sworn statement of net worth, a tax return, or a pay stub, and he did not offer an explanation for his failure to do so. Since the father failed, without good cause, to comply with the compulsory financial disclosure mandated by Family Court Act § 424–a, the Family Court was required to either grant the relief demanded in the petition or preclude the father from offering evidence as to his financial ability to pay support. Under the circumstances of this case, the court should have precluded the father from offering evidence regarding his financial ability to pay support, and should have determined the amount of child support based on the needs of the child, as requested by the mother (see Family Ct Act §§ 413[1][k]; 424–a[b]) It remitted  the matter to the Family Court, for a new hearing and a new determination.

 

 

Supreme Court improvidently exercised its discretion in denying the defendant’s motion for leave to amend her answer to change the date of the parties’ marriage from the date of their civil marriage ceremony, which occurred after the passage of the Marriage Equality Act, to the date of the parties’ religious marriage ceremony, which occurred six years prior to the passage of the Marriage Equality Act

           

In Mackoff v Bluemke-Mackoff, --- N.Y.S.3d ----, 2023 WL 7561813, 2023 N.Y. Slip Op. 05721 (2d Dept.,2023) the issue presented on this appeal, apparently an issue of first impression for an appellate court in this State, was whether the Supreme Court improvidently exercised its discretion in denying the defendant’s motion for leave to amend her answer to change the date of the parties’ marriage from the date of their civil marriage ceremony, which occurred after the passage of the Marriage Equality Act, to the date of the parties’ religious marriage ceremony, which occurred six years prior to the passage of the Marriage Equality Act. On July 21, 2005, in New York City, the plaintiff, Robin Mackoff, and the defendant, Linda Bluemke–Mackoff, participated in a traditional Jewish marriage ceremony that was performed and solemnized by a rabbi. The parties did not obtain a marriage license for this ceremony since, at the time, New York State did not offer marriage licenses to same-sex couples or recognize same-sex marriages. After this ceremony, the parties continued living together and, according to the defendant, held themselves out as spouses. In June 2011, New York State enacted the Marriage Equality Act (hereinafter the MEA), which authorized same-sex couples to enter into civil marriages in New York State. On July 28, 2011, four days after the MEA went into effect, the parties obtained a New York State marriage license and were married in a civil ceremony. On January 23, 2019, the plaintiff commenced this action for a divorce . In her complaint, the plaintiff claimed that the parties were married on July 28, 2011. On May 15, 2019, the defendant filed an answer, which did not refute the July 28, 2011 marriage date. The defendant was subsequently awarded certain pendente lite relief, including temporary spousal maintenance. On December 10, 2020, the defendant moved for leave to amend her answer to reflect that the parties were married on July 21, 2005, instead of July 28, 2011. The plaintiff opposed the motion. Supreme Court denied the defendant’s motion, determining that the amendment would be prejudicial to the plaintiff in light of the amount of time that had elapsed and the pendente lite relief previously granted. The court also determined that the amendment lacked merit because the MEA did not confer validity to a same-sex marriage conducted prior to its enactment. The Appellate Division reversed. It held that because the request for leave to amend her answer was not prejudicial to the plaintiff, palpably insufficient, or patently devoid of merit, her motion for such relief should have been granted. While the Domestic Relations Law deems it necessary for all persons intending to be married to obtain a marriage license, a marriage is not void for the failure to obtain a marriage license if the marriage is solemnized. The Court pointed out that at this stage in the litigation, we are tasked only with determining whether the defendant should be permitted to amend her answer to make the claim that the date of the parties’ marriage was July 21, 2005, not July 28, 2011. In the absence of prejudice or surprise to the opposing party, a motion for leave to amend the [pleadings] pursuant to CPLR 3025(b) should be freely granted unless the proposed amendment is ‘palpably insufficient’ to state a cause of action or is patently devoid of merit”. It found that the defendant’s proposed amendment was neither palpably insufficient nor patently devoid of merit. Contrary to the determination of the Supreme Court, the plaintiff failed to establish that the defendant’s proposed amendment was prejudicial to her in such a way that the defendant’s motion for leave to amend her answer should be denied. Neither the length of time between the defendant’s original answer and her motion for leave to amend, nor the fact that the amendment may affect the plaintiff’s maintenance and equitable distribution obligations, were sufficient to establish prejudice to the plaintiff (see R & G Brenner Income Tax Consultants v. Gilmartin, 166 A.D.3d at 687, 89 N.Y.S.3d 85).

 

 

The burden of repaying marital debt should be equally shared by the parties, in the absence of countervailing factors, and any such liability should be distributed in accordance with general equitable distribution principles and factors.

 

            In Ilyasov v Ilyas, --- N.Y.S.3d ----, 2023 WL 7561961 (Mem), 2023 N.Y. Slip Op. 05717 (2d Dept.,2023) the parties were married in 1987. The defendant left the marital residence in 2010. The plaintiff commenced the action for a divorce in September 2015, the parties had one minor child. The parties stipulated that the only remaining issues were child support and equitable distribution with respect to the defendant’s nursing degree and licenses, the defendant’s pensions, and the marital residence. The Appellate Division held that  Supreme Court providently exercised its discretion in declining to make any equitable distribution award to the plaintiff relating to the defendant’s nursing degrees and licenses. The court’s determination that the plaintiff did not substantially contribute to the defendant’s acquisition of her nursing degrees Supreme Court directed that the plaintiff “buy out the defendant’s share of the marital residence for $330,000,” or, if sold, each party shall receive 50% of the proceeds of the sale, but adjustments for any outstanding mortgage or unpaid taxes associated would be deducted from the plaintiff’s share of the proceeds With respect to the marital residence, the Supreme Court providently exercised its discretion in determining that the plaintiff is responsible for paying unpaid property taxes. The burden of repaying marital debt should be equally shared by the parties, in the absence of countervailing factors, and any such liability should be distributed in accordance with general equitable distribution principles and factors. Here, contrary to the court’s determination, the parties applied for a home equity line of credit in January 2004, and, as of October 1, 2010, prior to the commencement of this action, there was $212,125.73 outstanding on the credit line. Under the circumstances, the burden of repaying this marital debt, incurred during the marriage, should be equally shared by the parties. It modified the judgment to reflect that the parties were equally responsible for the $212,125.73 outstanding balance on the home equity credit line as of October 1, 2010. Supreme Court improvidently exercised its discretion in awarding the plaintiff only 30% of the marital portion of the defendant’s pension with 1199 SEIU Health Care Employees Pension Fund based on its unelaborated finding that the defendant left the marital residence “due to the abusive environment created by the plaintiff.” The general rule in New York is that marital fault should not be considered in determining equitable distribution. Egregious marital fault may be considered as a factor only in rare cases involving egregious and extraordinary conduct which shocks the conscience of the court This record did not support a finding of marital misconduct “so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship”.

 

It is  within the sound discretion of the court to accept a belated order or judgment for settlement. A court should not deem an action or judgment abandoned where the result ‘would not bring the repose to court proceedings that 22 NYCRR 202.48 was designed to effectuate, and would waste judicial resources.

 

 

            In Gargano v Gargano, --- N.Y.S.3d ----, 2023 WL 7560958, 2023 N.Y. Slip Op. 05715(2d Dept.,2023) the parties were married and, in 2011, the plaintiff commenced this action for a divorce. In a decision after trial dated June 7, 2018, the Supreme Court, directed the parties to settle judgment on notice within 60 days from the date of the decision. Thereafter, the parties made various posttrial motions, inter alia, to vacate and/or modify the decision after trial and to reopen the trial. In an August 2019 order, the court decided those motions and directed the parties to settle the judgment of divorce on notice within 30 days thereof. The parties failed to timely settle the judgment of divorce and, on March 2, 2020, the court, on its own motion, ordered that the parties “shall file the judgment roll on notice on or before March 31, 2020” and that, upon their failure to do so, the action “shall be deemed abandoned pursuant to 22 NYCRR § 202.48(b).” The March 31, 2020 deadline was tolled pursuant to Executive Orders issued in response to the public health crisis occasioned by the COVID–19 pandemic (see Executive Order [A. Cuomo] No. 202.8 [9 NYCRR 8.202.8]). On March 2, 2021, the defendant submitted the judgment roll. The plaintiff moved pursuant to 22 NYCRR 202.48 to dismiss the complaint as abandoned based upon the defendant’s delay in submitting the judgment. Supreme Court, inter alia, denied the plaintiff’s motion. On December 2, 2021, the court issued a judgment of divorce. The Appellate Division affirmed. It held that it is  within the sound discretion of the court to accept a belated order or judgment for settlement. Moreover, a court should not deem an action or judgment abandoned where the result ‘would not bring the repose to court proceedings that 22 NYCRR 202.48 was designed to effectuate, and would waste judicial resources’. Supreme Court providently exercised its discretion in denying her motion pursuant to 22 NYCRR 202.48 to dismiss the complaint as abandoned, as the defendant demonstrated good cause for the delay in submitting the judgment roll and “since doing so brought finality to the proceedings and preserved judicial resources.

 

 

Family Court erred in making a final custody determination without completing the hearing on the father’s petition and the mother’s cross-petition where neither the father nor the mother rested their respective case or gave a closing argument

 

            In Matter of Janvier v Santana-Jackson, --- N.Y.S.3d ----, 2023 WL 7562435, 2023 N.Y. Slip Op. 05732  (2d Dept.,2023)  a hearing on the father’s relocation petition and the mother’s cross-petition for an award of sole physical custody recommenced in May 2019. The Family Court admitted into evidence copies of forensic reports; however, due to multiple factors, including the global COVID–19 pandemic and the court’s scheduling issues, the hearing did not continue for many months. In an interim order dated August 28, 2019, the court, while acknowledging that “many facts [were] still in dispute,” that “the trial [was] still ongoing,” and that “it [was] pre-mature for [the] Court to make any findings and determinations,” continued the award of sole physical custody of the child to the father and, essentially, permitted the father to enroll the child in preschool in New Jersey. After a virtual conference on April 21, 2021, the court ordered a second updated forensic evaluation. By order dated September 15, 2021, before completion of the second updated forensic evaluation, and although neither the father nor the mother rested their respective case or gave a closing argument, the court, inter alia, granted the father’s relocation petition and denied the mother’s cross-petition for an award of sole physical custody of the child. The Appellate Division held that Family Court erred in making a final custody determination without completing the hearing on the father’s petition and the mother’s cross-petition in order to determine what arrangement was in the best interests of the child. It remitted for the completion of the hearing and new determinations.

 

 

Family Court improvidently exercised its discretion in granting the fathers sanctions motion  without affording the mother a reasonable opportunity to be heard, where  the court never set a briefing schedule for the sanctions motion, and in effect, denied the mother’s new counsel’s request to file opposition papers thereto.

 

            In Matter of Hunte v Jones,  --- N.Y.S.3d ----, 2023 WL 7562855, 2023 N.Y. Slip Op. 05731 (2d Dept.,2023) in December 2020, the mother filed a petition in the Family Court  to modify the parties’ custody order to award her sole legal custody of the child and to grant her permission to relocate with the child to Florida. In February 2021, the father filed a petition to modify the prior custody orders and requesting, inter alia, additional parental access during the week. By order to show cause dated October 4, 2021, the father moved pursuant to 22 NYCRR 130–1.1 for the imposition of sanctions, costs, and reasonable attorneys’ fees . The father contended, inter alia, that the mother engaged in frivolous conduct by relocating to Florida with the child without prior court approval, and by commencing a separate custody proceeding in Florida. The Family Court signed the order to show cause, setting a return date of November 22, 2021, for the sanctions motion, but not setting a briefing schedule. On April 4, 2022, while the sanctions motion remained pending and undecided, the mother moved for the Family Court Judge to recuse from the proceedings. During proceedings on April 18, 2022, the Family Court indicated that the mother’s prior assigned counsel was being relieved of his assignment, and acknowledged that the mother had new assigned counsel representing her. The court then stated that it intended to grant the mother’s motion for recusal. The court also, in effect, denied the mother’s new counsel’s request to file opposition to the sanctions motion. In an order dated April 27, 2022, the Family Court granted that branch of the sanctions motion which was for an award of reasonable attorneys’ fees for frivolous conduct, and directed the mother to pay attorneys’ fees in the sum of $1,250 to the father. In a separate order the court granted the mother’s motion for recusal. The Appellate Division observed that pursuant to 22 NYCRR 130–1.1(d), “[a]n award of costs or the imposition of sanctions may be made either upon motion in compliance with CPLR 2214 or 2215 or upon the court’s own initiative, after a reasonable opportunity to be heard. The form of the hearing shall depend upon the nature of the conduct and the circumstances of the case.” The Appellate Division agreed with the mother that the Family Court improvidently exercised its discretion in awarding the father reasonable attorneys’ fees without affording her a reasonable opportunity to be heard. Notably, the court never set a briefing schedule for the sanctions motion, and the court, in effect, denied the mother’s new counsel’s request to file opposition papers thereto. Under these circumstances, the mother did not receive a “reasonable opportunity to be heard” on the allegations in the sanctions motion. Additionally, the Family Court improvidently exercised its discretion by deciding the sanctions motion after indicating to the parties during the April 18, 2022 court appearance that it intended to grant the mother’s motion for recusal.

 

 

Under the circumstances of this case, the court should not have denied the mother’s objections due to her failure to comply with the proof of service requirement of FCA  § 439(e), where she  timely filed her objections and timely served a copy thereof upon the father but  filed proof of two weeks later and the father did not raise the proof of service issue.

 

          In Matter of Benzaquen v Abraham, --- N.Y.S.3d ----, 2023 WL 7172458, 2023 N.Y. Slip Op. 05498 (2d Dept.,2023) by order of disposition dated February 15, 2022, made after a hearing, a Support Magistrate, inter alia, declined to award the mother the full amount of arrears sought by her. The Family Court mailed the order of disposition to the parties on February 24, 2022. On March 25, 2022, the mother filed objections with the court. On April 5, 2022, the father submitted a rebuttal to the mother’s objections. By order dated August 31, 2022, the court denied the mother’s objections based on her failure to timely file proof of service pursuant to Family Court Act § 439(e). The Appellate Division held that under the particular circumstances of this case, the court should not have denied the mother’s objections due to her failure to comply with the proof of service requirement of Family Court Act § 439(e), and instead should have considered the merits of her objections. 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. Here, the Family Court improperly denied the mother’s objections on the ground that she failed to timely file proof of service. The mother timely filed her objections and timely served a copy thereof upon the father in compliance with Family Court Act § 439(e). She failed to file proof of service at the time of filing of the objections, as required by the statute, but nonetheless filed such proof two weeks later. Notably, the father submitted a rebuttal and did not raise the proof of service issue.

 

 

 

 

Appellate Division, Third Department

 

 

Supreme Court providently exercised its discretion in awarding the plaintiff 100% of the parties’ interest in the marital residence, where the defendant was unable to contribute financially to the mortgage loan or to the support of the parties’ child due to his long-term incarceration, and where the plaintiff was also responsible for 100% of the parties’ marital debt

 

             In Gigliotti v Gigliotti, --- N.Y.S.3d ----, 2023 WL 8102597, 2023 N.Y. Slip Op. 06029 (2d Dept., 2023) the  parties were married on August 20, 2011, and had one minor child. The defendant was incarcerated since 2016, and was not scheduled for release until 2033. The plaintiff commenced this action in or about January 2018. A nonjury trial was scheduled on February 28, 2020. The defendant’s attorney did not appear and did not properly request an adjournment pursuant to the rules of the trial part. The defendant appeared by phone. After the trial, the Supreme Court, inter alia, awarded the plaintiff 100% of the parties’ interest in the marital residence, the parties’ only marital asset, and allocated 100% of the parties’ debt to the plaintiff. A judgment of divorce, upon the decision, was entered on January 25, 2021. The Appellate Division affirmed. It held that Supreme Court providently exercised its discretion in denying the defendant’s application for an adjournment where his counsel did not properly seek an adjournment pursuant to the trial part’s rules and subsequently failed to appear at trial. It also held that Supreme Court providently exercised its discretion in awarding the plaintiff 100% of the parties’ interest in the marital residence, where the defendant was unable to contribute financially to the mortgage loan or to the support of the parties’ child due to his long-term incarceration, and where the plaintiff was also responsible for 100% of the parties’ marital debt

 

           

When determining the child’s best interests, Family Court must consider the effect of having committed a family offense when the allegations are proven by a preponderance of the evidence.

 

 

            In Matter of Jacklyn PP v Jonathan QQ, 2023 WL 8105077 (3d Dept.,2023) the Appellate Division found that a fair preponderance of the evidence supported the conclusion that the father committed the family offenses of stalking in the third degree and fourth degree. It rejected the fathers contention that  granting the mother sole custody was not in the child’s best interests and that Family Court erred in considering the father’s family offenses in determining custody. Family Court properly considered the various factors in its best interest analysis, giving greatest emphasis to the father having committed family offenses and finding that presently the parties could not communicate. Contrary to the father’s contention, when determining the child’s best interests, Family Court must consider the effect of having committed a family offense when the allegations are proven by a preponderance of the evidence.

 

 

Although the mother would have been unable to take an appeal from the orders entered upon her default, a defaulting party is still free to seek review of the proceedings on a contested inquest

 

            In Matter of Daniel RR v Heather RR,  2023 WL 8104865 (3d Dept.,2023) the maternal grandfather of the children, commenced proceedings seeking, in relevant part, visitation with them. Upon the mother’s default, Family Court issued two orders in March 2020 that awarded the grandfather visitation. After vacating the default and holding an inquest,  the Family Court granted the grandfather visitation. The Appellate Division held, inter alia, that although the mother would have been unable to take an appeal from the March 2020 orders entered upon her default, a defaulting party is still free to seek “review ... of the proceedings on a contested inquest” (James v. Powell, 19 N.Y.2d 249, 256 n 3, 279 N.Y.S.2d 10, 225 N.E.2d 741 [1967]; see Matter of DiNunzio v. Zylinski, 175 A.D.3d 1079, 1080, 108 N.Y.S.3d 634 [4th Dept. 2019]). Counsel for the mother appeared at the inquest that led to the appealed-from orders, offered no objection to it occurring, and actively participated in it by cross-examining the grandfather. Family Court, moreover, did not hold the mother to have defaulted in appearance at the inquest. In view of those facts, it concluded that the mother did contest the inquest and that she may appeal from the ensuing orders.

 

 

Where Family Courts plethora of errors curtailed significant testimony that would have been relevant and denied the father a full and fair opportunity to present evidence, the  custody order on appeal was reversed  and remitted for a new fact-finding hearing before a different judge.

 

In Matter of Shayne FF., v. Julie GG, --- N.Y.S.3d ----, 2023 WL 7750133, 2023 N.Y. Slip Op. 05767 (3d Dept.,2023) the Appellate Division reversed an order of the Family Court which granted respondent’s motion to dismiss petitioner’s applications,  to modify a prior order of custody and visitation. The Court observed that although not specifically raised by the parties, Family Court, seemingly driven by its overly narrow interpretation of the father’s petition and amended petition, committed a plethora of errors which curtailed significant testimony that would have been relevant and material to the father’s claim that a change in circumstances had occurred since entry of the 2012 order and that the best interests of the child would be served by modifying said order. Among other things, Family Court heavily limited testimony about the increased driving time and prevented any inquiry as to safety concerns that may have weighed against expanding the father’s parenting time, as to the child’s relationship with either parent, their significant others or their support systems, as to what parenting schedule the father sought, as to the mother’s refusal to allow the father holiday time and as to the father’s prior attempts at addressing that issue. Further, the order on appeal notes that the father “rejected an in court offer that was acceptable to [the mother] and to the [attorney for the child]”; Family Court was reminded that, except in very limited circumstances not applicable here, it cannot consider settlement negotiations among parties in its order (see CPLR 4547). This testimony would have been of particular importance here, where the prior order was premised on the parties’ consent rather than on a prior judicial determination, and such evidence could “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,” and aid the court in its best interests analysis. As these errors compounded and denied the father a full and fair opportunity to present evidence, it reversed the order on appeal and remitted this matter for a new fact-finding hearing before a different judge.

 

 

Where  the parental rights of both biological parents have been terminated, adoption is the sole and exclusive means to gain care and custody of the child

 

         In Matter of Mirely M., v Wilbert L., --- N.Y.S.3d ----, 2023 WL 7749859, 2023 N.Y. Slip Op. 05772 (3d Dept.,2023)  the Appellate Division held that where, as here, the parental rights of both biological parents have been terminated, adoption is the sole and exclusive means to gain care and custody of the child” and courts are “without authority to entertain custody proceedings commenced by a member of the child’s extended family. Here, the stepmother sought only custody of the child; she has not sought adoption. The appeal from denial of the stepmother’s custody petition was moot. Should she still seek care and custody of the child, the stepmother’s sole recourse was to file for adoption.

 

Appellate Divison, Fourth Department

 

 

A mutual mistake exists where the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement. Sufficiency of complaint sustained.

 

            In Baird v Baird, --- N.Y.S.3d ----, 2023 WL 7982187, 2023 N.Y. Slip Op. 05824 (4^th Dept., 2023) the Appellate Division affirmed an order which denied the defendants motion to dismiss the complaint pursuant to CPLR 3211 and for summary judgment dismissing the complaint pursuant to CPLR 3212. Plaintiff commenced this postjudgment matrimonial proceeding seeking to reform the parties’ Property Settlement and Parenting Agreement (agreement), which was incorporated but not merged into their judgment of divorce. Plaintiff asserted that the agreement should be reformed to include an equitable distribution of her marital interest in defendant’s pension, which she alleged was omitted from the agreement due to mutual mistake or fraud.  The Appellate Division rejected defendants argument that the complaint failed to sufficiently plead a cause of action for reformation based on fraud or mutual mistake . It observed that a claim for reformation of a written agreement must be grounded upon either mutual mistake or fraudulently induced unilateral mistake’. “A mutual mistake exists where the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement”. “When an error is not in the agreement itself, but in the instrument that embodies the agreement, equity will interfere to compel the parties to execute the agreement which they have actually made, rather than enforce the instrument in its mistaken form”. It concluded that the complaint sufficiently stated a cause of action for reformation of the agreement based on mutual mistake by alleging that the parties agreed to “the distribution of all assets owned jointly or in the individual name of either party” and then omitted the distribution of plaintiff’s marital interest in a defined benefit pension that defendant was entitled to because neither party was aware of defendant’s entitlement to those benefits at the time the agreement was negotiated and executed. Those allegations contained sufficient detail to satisfy the particularity requirement of CPLR 3016 (b). It also concluded that the complaint sufficiently states a cause of action for reformation of the agreement based on fraud. “[A] fraud cause of action must allege that the defendant: (1) made a representation to a material fact; (2) the representation was false; (3) the defendant intended to deceive the plaintiff; (4) the plaintiff believed and justifiably relied on the statement and in accordance with the statement engaged in a certain course of conduct; and (5) as a result of the reliance, the plaintiff sustained damages”. Here, the complaint alleges that defendant represented during the divorce negotiations that he did not have a defined benefit plan due to his employer’s bankruptcy; that defendant’s representation was false; that defendant intended to deceive plaintiff; that plaintiff justifiably relied on defendant’s misrepresentation in negotiating the agreement; and that, as a result of her reliance, plaintiff did not receive her marital share of defendant’s pension. Those allegations “sufficiently pleaded the elements of fraud ... and supplied sufficient detail to satisfy the specific pleading requirements of CPLR 3016 (b)”

 

 

Where Family Court Act articles 6 and 10 proceedings are pending at the same time, the court may jointly hear the hearing on the custody and visitation petition under article 6 and the dispositional hearing on the petition under article 10 provided, the court must determine the custody and visitation petition in accordance with the terms of article 6.

 

            In Matter of Lillyana B., --- N.Y.S.3d ----, 2023 WL 7982309 (4^th Dept., 2023) the Appellate Division held that where as here, Family Court Act articles 6 and 10 proceedings are pending at the same time, the court “may jointly hear the hearing on the custody and visitation petition under [article 6] and the dispositional hearing on the petition under article [10] ... ; provided, however, the court must determine the custody and visitation petition in accordance with the terms of ... article [6]” (Family Ct Act § 651 [c-1]; see § 1055-b [a-1]; Matter of Nevaeh MM. [Sheri MM.—Charles MM.], 158 AD3d 1001, 1002 [4th Dept 2018]). In an article 6 custody proceeding, it is well settled that, as between a parent and a nonparent, the parent has a superior right to custody that cannot be denied absent a finding that the parent has relinquished that right because of “surrender, abandonment, unfitness, persisting neglect or other extraordinary circumstances”. If extraordinary circumstances are established, then the court may make an award of custody based on the best interests of the child (see Bennett, 40 NY2d at 548). It agreed with the court that extraordinary circumstances existed here based on the father’s abandonment of the child.

 

 

In a contempt proceeding however misguided and erroneous the father believed the court’s order to have been he was not free to disregard it

 

            In Matter of Pritty-Pitcher v. Hargis., --- N.Y.S.3d ----, 2023 WL 7982342, 2023 N.Y. Slip Op. 05886 (4^th Dept.,2023) the Appellate Division held that however misguided and erroneous the father believed the court’s order to have been he was not free to disregard it and decide for himself the manner in which to proceed. Inasmuch as the father did not contest the jurisdictional validity of the prior order and did not dispute that he violated the order by refusing to abide by the provisions granting visitation to petitioner, it rejected his contention that the court erred in finding him in contempt.

 

 

Appellate Divison treats decision as order for purpose of taking an appeal where it “meets the essential requirements of an order”

 

In Matter of Geer, v  Collazo , --- N.Y.S.3d ----, 2023 WL 7982541 (Mem), 2023 N.Y. Slip Op. 05904 (4^th Dept.,2023) the father appealed from a decision that denied his petition seeking, inter alia, visitation with the child. The Appellate Division held that  although no appeal lies from a mere decision, the paper appealed from “meets the essential requirements of an order” (Nicol v Nicol, 179 AD3d 1472, 1473 [4th Dept 2020]) inasmuch as it was filed “with the Court Clerk and ... [it] resolved the [proceeding] and advised the father that he had a right to appeal” (Matter of Louka v Shehatou, 67 AD3d 1476, 1476 [4th Dept 2009]). It therefore treated it as an order.

 

 

 

Family Court

 

 

Under Domestic Relations Law § 76-a, a court cannot have exclusive continuing jurisdiction if it never had initial child custody jurisdiction in the first instance

 

            In Matter of  E.P.,v. B.S., --- N.Y.S.3d ----, 2023 WL 6819194, 2023 N.Y. Slip Op. 23318 Family Court, (2023) Family Court granted the fathers motion for an order dismissing the petitions on the grounds that New York lacked initial child custody jurisdiction because New York was not the “home state” of the children within the meaning of Domestic Relations Law § 75-a (7) because none of the children were living in New York for the six-month period immediately before the filing of the petitions in November 2022. The parties acknowledged that previous custody petitions had been filed in New York in 2017, that New York had issued temporary orders regarding custody and visitation in those proceedings, and that the Family Court in New York had a long history addressing the custody dispute between the mother and father. However, all the petitions filed in 2017 were dismissed in November 2022. When the 2017 proceedings were commenced, none of the children resided in New York. For a period of more than six months prior to the filing of the 2017 petitions, the children C. and A. had resided in Connecticut with the mother. According to the father, only the child M. lived in New York within the six-month period before the filing of the 2017 petitions. Indeed, in opposition to father’s motion, the mother avers that all three children resided outside of New York “for about 7 years” and that when the father initiated the 2017 proceedings “the children already lived outside the state” (Affirmation in Opposition, p. 7). Even though none of the children resided in New York at the time of commencement of the 2017 proceedings, the mother argues that New York was the children’s “home state” simply because New York had issued initial custody orders in those proceedings. Her argument relied upon Domestic Relations Law § 76-a entitled “exclusive continuing jurisdiction” and case law holding that “[a] New York court that has previously made a child custody determination has exclusive, continuing jurisdiction. The mother’s argument was flawed and circular because Domestic Relations Law § 76-a, and the case law interpreting it, presuppose that the New York court had initial child custody jurisdiction under Domestic Relations Law § 76 when it issued the initial custody order. In other words, under Domestic Relations Law § 76-a, a court cannot have exclusive continuing jurisdiction if it never had initial child custody jurisdiction in the first instance. Moreover, New York’s exercise of initial child custody jurisdiction under Domestic Relations Law § 76 in an earlier proceeding that was subsequently dismissed does not necessarily confer jurisdiction to a later proceeding.. Here, the affidavits of the mother and the father indicate that none of the children resided in New York at the time of commencement of the 2017 proceedings.

 

         

 

November 15, 2023

 

Where the Referee stated on the record during the hearing that petitioner could only present extraordinary circumstances evidence after she established that she had standing this was an error of law, as extraordinary circumstances is one of several bases for standing to seek custody and visitation.

            In Matter of Lashawn K., v. Administration for Childrens Services et al., --- N.Y.S.3d ----, 2023 WL 7391728, 2023 N.Y. Slip Op. 05662 (1^st Dept.,2023) the Appellate Division observed that as a prerequisite to seeking custody or visitation with a child, a party must establish standing. The party may establish standing (1) as a parent pursuant to Domestic Relations Law § 70; (2) as a sibling for visitation pursuant to Domestic Relations Law § 71; (3) as a grandparent for visitation or custody pursuant to Domestic Relations Law § 72; or (4) by showing extraordinary circumstances pursuant to Matter of Bennett v. Jeffreys, 40 N.Y.2d 543). 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), the Court of Appeals expanded the definition of the word “parent” to include a nonbiological, nonadoptive parent who has demonstrated by clear and convincing evidence that “the parties agreed to conceive a child and to raise the child together”. Here,  Family Court determined after a hearing that petitioner failed to establish the existence of an enforceable pre-conception agreement to conceive and co-parent the subject child with the child’s biological mother. The child’s biological mother unexpectedly died only months after the child was born and before she and petitioner were to be married. The Appellate Division held that Family Court erred in dismissing petitioner’s custody and visitation petitions without permitting petitioner the opportunity to present evidence supporting her argument that she had standing based on extraordinary circumstances. The Referee stated on the record during the hearing that she agreed with the biological father’s position that petitioner could only present extraordinary circumstances evidence after she established that she had standing. This is an error of law, as extraordinary circumstances is one of several bases for standing to seek custody and visitation. Extraordinary circumstances may be found where there has been “a judicial finding of surrender, abandonment, unfitness, persistent neglect, unfortunate or involuntary extended disruption of custody, or other equivalent but rare extraordinary circumstance which would drastically affect the welfare of the child” It reversed and remand the case to Family Court for a further hearing on whether petitioner can establish standing based on extraordinary circumstances.

 

 

Contention that no portion of accidental disability pension represented deferred compensation related to his length of service is without merit

            In Fanning v Fanning, --- N.Y.S.3d ----, 2023 WL 7362771 (Mem), 2023 N.Y. Slip Op. 05587 (2d Dept.,2023) the parties were married in 1995. In 2008, the plaintiff retired as a police officer for the Garden City Police Department with an accidental disability pension. They were divorced by judgment entered September 20, 2017, which incorporated, but did not merge, their stipulation of settlement. The stipulation of settlement provided for a 50% distribution to the defendant of that portion of the value of the plaintiff’s accidental disability pension which was “based upon the length of service.” Thereafter, the Supreme Court issued a qualified domestic relations order ( QDRO), drafted by the plaintiff’s former counsel and consented to by the parties, which provided for the defendant’s share of the pension to be calculated based on a fraction of the plaintiff’s hypothetical retirement benefits, which he would have received had he not been injured. In January 2021, the plaintiff moved to vacate the QDRO, contending that its terms conflicted with the terms of the stipulation of settlement with respect to the defendant’s share, if any, of his pension benefits. Supreme Court, inter alia, denied the plaintiff’s motion. The  Appellate Division affirmed an order which denied the plaintiff’s motion. It noted that to the extent that a disability pension constitutes compensation for personal injuries, that compensation is separate property which is not subject to equitable distribution. A domestic relations order entered pursuant to a stipulation of settlement can convey only those rights to which the parties stipulated as a basis for the judgment. Where a QDRO is inconsistent with the provisions of a stipulation or judgment of divorce, courts possess the authority to amend the QDRO to accurately reflect the provisions of the stipulation pertaining to the pension benefits. Here, the calculation of the defendant’s share of the plaintiff’s disability pension benefit, as set forth in the QDRO, was consistent with the terms of the stipulation of settlement. The plaintiff’s apparent contention that no portion of his accidental disability pension represented deferred compensation related to his length of service was without merit (see Miszko v. Miszko, 163 A.D.3d 1204, 1206, 81 N.Y.S.3d 617; Peek v. Peek, 301 A.D.2d 201, 204, 751 N.Y.S.2d 124; Palazzolo v. Palazzolo, 242 A.D.2d at 690, 663 N.Y.S.2d 58). Accordingly, the Supreme Court properly denied the plaintiff’s motion

 

 

Generally, the court’s custody determination should be made only after a  full and plenary hearing and inquiry, or, where a party failed to appear, after an inquest.

 

     In Otero v Walker, --- N.Y.S.3d ----, 2023 WL 7363407 (Second Dept.,2023) in 2017 the parties were awarded joint legal custody of their child, with residential custody awarded to the mother and parental access to the father at such times as agreed between the parties. In April 2021, the mother commenced a proceeding to modify the prior order to award her sole legal and residential custody of the child. On June 17, 2022, the father failed to appear for a hearing, and his attorney made an application to set the matter down for an inquest on the mother’s petition. The Family Court denied the application, and granted the mother’s petition upon the father’s default. The Appellate Division held that a custody determination, whether made upon the default of a party or not, must always have a sound and substantial basis in the record. Generally, the court’s determination should be made only after a full and plenary hearing and inquiry, or, where a party failed to appear, after an inquest. Here, the Family Court granted the mother’s petition to upon the father’s default, without receiving any testimony or other evidence, despite the fact that the father’s attorney proffered a reasonable explanation for the father’s absence and that the father did not have a history of missing court dates Under the circumstances, the court improvidently exercised its discretion. It, inter alia, reversed the order, vacated the determination granting the mother’s petition, and remitted the matter to the Family Court for an inquest and a new determination of the mother’s petition.

 

 

Pursuant to FCA 1046(a)(ii) the petitioner  makes out  prima facie case of child abuse or neglect by demonstrating that (1) an injury occurred to a child which would ordinarily not occur absent an act or omission of the respondents and (2) that the respondents were the caretakers of the child at the time the injury occurred

 

            In  Matter of J.B. S., --- N.Y.S.3d ----, 2023 WL 6529048, 2023 N.Y. Slip Op. 23303 Family Court, 2023) the neglect petition against J.S, the respondent father alleged RF neglected the subject children in that the child J.b. S. tested positive for fentanyl and was hospitalized while in the care of respondent father . The attorney for the children did not support a finding of neglect. Family court observed that Courts have consistently held that positive toxicology in children, combined with other factors in the record are consistent to sustain a finding of neglect.. The positive toxicology is often paired with a showing that the child suffered harm, such as withdrawal or a hospital stay to recover from the effects of the drug, which is sufficient to establish neglect against the parent or caretaker. Furthermore, case law is clear that a finding of neglect is appropriate when there is a failure to properly supervise by unreasonably allowing harm to be inflicted upon a child.. Here, J.b. S. tested positive for fentanyl and required hospitalization. Dr. N.R. testified about the lethal consequences which fentanyl causes and the record was clear that J.b. S. required lifesaving treatment to reverse the effects from the fentanyl ingestion. This was a harm sufficient to sustain neglect under FCA 1012(f). There must be a showing that this was caused by the failure of his parent or person legally responsible to exercise a minimum degree of care. The Family Court Act has incorporated the res ipsa loquitar definition into its definition of child abuse and neglect. Pursuant to FCA 1046(a)(ii) the petitioner  made a prima facie case of child abuse or neglect by demonstrating that (1) an injury occurred to a child which would ordinarily not occur absent an act or omission of the respondents and (2) that the respondents were the caretakers of the child at the time the injury occurred. In Re Philip M. 82 N.Y.2d 238, 604 N.Y.S.2d 40, 624 N.E.2d 168 (1993) the Court did not relieve the Petitioner from meeting its burden of proof by a preponderance of the evidence. However, “as in negligence cases tried on the theory of res ipsa loquitor, once the petitioner puts forth a prima facie case, “the burden of going forward shifts to respondents to rebut the evidence of parental culpability.” The Court of Appeals specifically held that the respondent could rest without rebutting the case and permit the court to decide the case on the strength of petitioner’s evidence. However, if respondents  rebut the prima facie case, they may do so by 1) establishing that the child was not in their care at the time of the incident, 2) demonstrating that the injury could reasonably have occurred accidentally, without the acts or omissions of the respondent or 3) countering the evidence that the child had the condition which was the basis for the finding of the injury. The Court in Philip M. upheld the finding and rejected the respondent’s testimony which it held as “conjecture” and without an explanation for how the injury occurred. The Court held that the parents failed to prove that one of the children’s injuries had another source. The testimony proffered by the respondents was implausible and the Court properly rejected their explanation. The Court found that Petitioner  established by a preponderance of the evidence that the respondent was  the father of the children, that the child has injuries of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent, and that RF was a caretaker for SC when the injury may have occurred. Respondent father  failed to rebut the Petitioner’s presumption of neglect. Therefore, under FCA 1046(a)(ii) and Matter of Philip M., the children were neglected children as defined in section 1012(f) of the Family Court Act.

 

 

November 8, 2023

 

Courts have the power to limit a parent’s independent access to a child’s medical, academic, and extracurricular records if it would contravene the child’s best interests.

 

 

            In Robert S. v. Norma C., --- N.Y.S.3d ----, 2023 WL 6626898, 2023 N.Y. Slip Op. 05210(1^st Dept.,2023) the Family Court awarded the mother sole physical and legal custody of the child with therapeutic supervised visits to the father, and granted the father independent access to all school, medical, and extracurricular activity reports from the child’s providers. The Appellate Divison modified, to the extent of deleting the provision of the order granting the father independent access to all school, medical, and extracurricular activity reports from the child’s providers, and otherwise affirmed. It held that the courts have the power to limit a parent’s independent access to a child’s medical, academic, and extracurricular records if it would contravene the child’s best interests. Under the facts of this case, it was not in the child’s best interests for his father to have independent access to his records, as the father had only a limited and sporadic relationship with the child, who adamantly opposed the father’s access to the records.

 

 

The term “paystub” is defined as “a record that is given to an employee with each paycheck and that shows the amount of money earned and the amount that was removed for taxes, insurance costs, etc. Informal timesheets do not qualify as “paystubs

 

            In Franklin v Franklin, --- N.Y.S.3d ----, 2023 WL 6394564, 2023 N.Y. Slip Op. 04925  (1^st Dept.,2023) the parties’ stipulation of August 24, 2021, provided in pertinent part that plaintiff will pay defendant $2,000 per month “as a contribution towards [defendant’s] childcare expenses.” Plaintiff’s obligation to make the payment is conditioned upon defendant being “employed by a nonrelative” and upon her periodic furnishing to plaintiff of “paystub[s]” documenting such employment. The stipulation required defendant to provide plaintiff with her first paystub from a given employer, the first and last paystub of each calendar year, and the paystub covering July 1 of each year.  Defendant moved for an order directing plaintiff to make a childcare payment based on her provision of timesheets purporting to document childcare services that she performed for Matthew Kleban. Given defendant’s averments that there was no written contract or other formal documentation of the employment relationship between herself and Kleban, and that Kleban did not provide her with paystubs, the court found that the timesheets defendant had provided to plaintiff were the “functional equivalent” of the “paystub[s]” required by the stipulation. The Appellate Division reversed the order which granted defendant wife’s motion to compel plaintiff to pay her $18,000 for childcare costs for the period of April to December 2022 and to pay $10,000 in legal fees. It held that a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms. Both parties represented by counsel, entered into a stipulation that expressly conditioned plaintiff’s obligation to make childcare payments upon defendant’s production of “paystub[s]” to document her employment by a nonrelative. The term “paystub” is defined as “a record that is given to an employee with each paycheck and that shows the amount of money earned and the amount that was removed for taxes, insurance costs, etc.” (https://merriam-webster.com/dictionary/paystub); accord Black’s Law Dictionary 1364 [11th ed 2019]). Under this definition, and based upon the circumstances, the informal timesheets produced by defendant plainly did  not qualify as “paystubs.” The motion court impermissibly changed the meaning of the parties’ agreement by adding or excising terms under the guise of construction.

 

 

A Settlement agreement no longer exists upon its merger into a divorce decree and, therefore, contract principles did not apply in an action for enforcement.

 

            In Hardy v Hummel, --- N.Y.S.3d ----, 2023 WL 7201003, 2023 N.Y. Slip Op. 05564(3d Dept.,2023) the parties' Indiana  settlement agreement was approved by the Indiana court and “made a part of” the Indiana decree. The decree directed that “[e]ach of the parties is bound by the terms and conditions of the [a]greement as an [o]rder of this [c]ourt.” Given that the settlement agreement merged into the decree, the agreement “ceased to exist as a separately enforceable contract” (Rainbow v. Swisher, 72 N.Y.2d 106, 109, 531 N.Y.S.2d 775, 527 N.E.2d 258 [1988]). The Appellate Divison held that although the law implies a reasonable time when a contract is silent on the time of performance, the settlement agreement no longer existed upon its merger into the decree and, therefore, contract principles did not apply in this action for enforcement.

 

           

Mere technical failures of the acknowledgment do not foreclose the validity of an agreement. An acknowledgment must be executed contemporaneously, although not necessarily simultaneously, with the party’s signing of the agreement

 

        In Ryerson v Ryerson, --- N.Y.S.3d ----, 2023 WL 7201028, 2023 N.Y. Slip Op. 05560 (3d Dept.,2023) Plaintiff ( wife) and defendant (husband) were married in 2005. On March 29, 2020, shortly after the beginning of the COVID–19 pandemic, the parties executed a separation agreement. At that time, Executive Order No. 202.7, issued on March 19, 2020, was in effect, temporarily authorizing the use of audio-visual technology for the remote execution of notarial acts required by state law. The parties met at the wife’s house to execute the separation agreement and contacted a notary public via video conference. After executing the agreement, the parties conveyed to the notary that they had no access to a scanner or facsimile machine to electronically transmit the document to the notary, as required by Executive Order No. 202.7. The notary instructed the wife to mail the agreement back to him, and the husband did not object to this proposed solution. A few days later, the notary received the agreement in the mail, reviewed it, acknowledged the parties’ signatures and mailed a copy of the agreement to each of them. The parties thereafter began complying with several terms of the agreement. The wife later initiated a matrimonial action, seeking, in relevant part, to incorporate but not merge the separation agreement into a judgment of divorce. The husband alleged that the agreement was invalid and unenforceable, and moved to set it aside, asserting, among other things, that the agreement was not signed in compliance with Executive Order No. 202. Supreme Court denied the husband’s motions. The Appellate Divison affirmed. It observed that an unacknowledged agreement is invalid and unenforceable in a matrimonial action. Although substantial compliance of an acknowledgment with the relevant statutory mandates is necessary for a separation agreement to be valid and enforceable, mere technical failures of the acknowledgment do not foreclose the validity of an agreement. The minor variation in which the agreement was sent to the notary did not deprive the notary of authority, and it in no way tainted the notarial process. In the absence of any substantive defect in the acknowledgment itself, the election to send the agreement by mail rather than electronic means was a mere technical irregularity that the courts may overlook. It held that the acknowledgment process used here fulfilled the requirement that an acknowledgment must be executed contemporaneously, although not necessarily simultaneously, with the party’s signing of the agreement. This rule “accounts for a reasonable delay between signing and acknowledgment, which might be occasioned by circumstances unrelated to a party’s knowing delay or intent to gain leverage over the other party as was the case here, where the delay was attributable to the practicalities attendant to the COVID–19 pandemic. The two substantive aspects of an acknowledgment, the oral declaration of the signers and the written certificate of acknowledgment, were present here, and the two purposes of acknowledgment, proving the identity of the signatories and imposing a measure of deliberation upon them had been fulfilled.

 

 

November 1, 2023

 

Applications and motions for the issuance of QDROs are not barred by the statute of limitations

In Wansi v Wansi, --- N.Y.S.3d ----, 2023 WL 7028913 (Mem), 2023 N.Y. Slip Op. 05457 (1^st Dept.,2023) the Appellate Division affirmed an order which denied plaintiff’s motion to vacate a qualified domestic relations order (QDRO). It held that contrary to plaintiffs contention applications and motions for the issuance of QDROs are not barred by the statute of limitations and the Uniform Rules for Trial Courts (22 NYCRR) § 202.48 is inapplicable because it was merely a mechanism to effectuate payment of defendant’s share in plaintiff’s retirement plan.

 

 

Petitioner lacked standing to bring a guardianship petition where the child had already been placed in the care of the CSS for the purpose of adoption

 

In Matter of Lajuan M., v. Administration for Children’s Services, --- N.Y.S.3d ----, 2023 WL 6394944, 2023 N.Y. Slip Op. 04932 (1^st Dept.,2023)  the Appellate Division affirmed an order of the Family Court which dismissed, with prejudice, the petition for guardianship brought under article 6 of the Family Court Act. It held that family Court properly dismissed the petitioner’s request for custody of the subject child. Petitioner lacked standing to bring a guardianship petition because the child had already been placed in the care and custody of the Commissioner of Social Services for the purpose of adoption (see Matter of Roslyn J. v. Charise J., 205 A.D.3d 480, 480, 165 N.Y.S.3d 846 [1st Dept. 2022]; Matter of Carmen P. v. Administration for Children’s Servs., 149 A.D.3d 577, 577, 50 N.Y.S.3d 275 [1st Dept. 2017]).

 

 

A  violation petition is subject to the requirements of CPLR 3013, and is required to be sufficiently particular as to provide notice of the occurrences to be proved and the material elements of each cause of action

 

 In Matter of Tonya YY., v. James ZZ., --- N.Y.S.3d ----, 2023 WL 7028272, 2023 N.Y. Slip Op. 05435 (3d Dept.,2023) the Appellate Division affirmed an order which dismissed the custody violation petition without a hearing. It held that a  violation petition is subject to the requirements of CPLR 3013, and thus is required to be sufficiently particular as to provide notice to the court and opposing party of the occurrences to be proved and the material elements of each cause of action. In order to prevail on a violation petition, the proponent must establish, as relevant here, that the alleged violator’s actions or failure to act defeated, impaired, impeded or prejudiced a right of the proponent and that the alleged violation was willful. Although an evidentiary hearing is required where a violation petition sets forth sufficient allegations that could support granting the relief sought a hearing is not required, even where a factual dispute exists, where, as here, the allegations set forth in the petition, even if accepted as true, are insufficient to support a finding of contempt.

 

October 25, 2023

 

 

Appellate Division, First Department

 

Promissory notes, which provided that defendant would repay funds to plaintiff, were not enforceable because they were not acknowledged in accordance with DRL § 236(B)(3). Where plaintiff failed to establish a baseline value for the business she could not sustain any claim to appreciation in the value of that business.

 

            In Barone v Clopton, --- N.Y.S.3d ----, 2023 WL 6883804, 2023 N.Y. Slip Op. 05309 (1^st Dept.,2023) the Appellate Division reversed a judgment awarding plaintiff $76,000 for loans she made to defendant during the marriage, as memorialized by promissory notes, and $36,200 for third-party loans plaintiff incurred during the marriage. It held that the promissory notes, which provided that defendant would repay funds to plaintiff, were not enforceable in this proceeding because they were not acknowledged in accordance with Domestic Relations Law § 236(B)(3). Plaintiff could not properly have been awarded the sums of those promissory notes or the third-party loans based on those sums having caused defendant’s separate property business to appreciate in value because Supreme Court determined that plaintiff failed to establish a baseline value for the business, and thus, she could not sustain any claim to appreciation in the value of the business (see Domestic Relations Law §§ 236[B][1][d][3], [B][5][c]). Plaintiff did not otherwise demonstrate that she was entitled to any credit for the third-party loans incurred and fully paid during the marriage .

 

 

Appellate Division, Second Department

 

The word “expenses” is commonly understood as meaning costs that are actually incurred.

 

In Herman v Herman, --- N.Y.S.3d ----, 2023 WL 6853823, 2023 N.Y. Slip Op. 05252 (2d Dept.,2023) the parties were divorced by a judgment that incorporated but did not merge a stipulation of settlement. The plaintiff moved, inter alia, for an award of child support add-on expenses of $31,128. Supreme Court, inter alia, granted the plaintiff’s motion. The Appellate Division reversed. It held that  Supreme Court erred. Where the stipulation is clear and unambiguous on its face, the intent of the parties must be gleaned from the four corners of the instrument, and not from extrinsic evidence. Here, the stipulation of settlement was unambiguous. It required the defendant to pay a certain percentage of child support add-on expenses incurred. It did not, however, obligate him to pay a set amount of add-on expenses irrespective of whether, in actuality, those expenses were incurred. The word “expenses,” which the defendant was obligated to pay as add-ons, is commonly understood as meaning costs that are actually incurred.

 

 

Appellate Division, Third Department

 

One-time nonrecurring payments should not have been utilized in calculating the husband’s income, where there was no evidence that these payments would continue in the future

 

            In McFarlane v McFarlane,--- N.Y.S.3d ----, 2023 WL 6883458, 2023 N.Y. Slip Op. 05295 (3d Dept.,2023) the Support Magistrate determined that the husband had demonstrated an extreme hardship to justify a reduction in maintenance. In calculating the husband’s presumptive maintenance amount, the Support Magistrate imputed certain income to the husband. Family Court partially denied the husband’s objections. It determined that the Support Magistrate correctly found that the husband demonstrated an extreme hardship warranting a downward modification, that the maintenance obligation should continue, that the Support Magistrate properly imputed income to the husband and appropriately considered the statutory factors in deviating from the presumptive maintenance amount. The Appellate Division observed that where, as here, the parties’ [stipulation] was incorporated into the judgment of divorce, no modification as to maintenance shall be made without a showing of extreme hardship”(see Domestic Relations Law § 236[B][9][b][1]). While it  agreed that the imputation of income to the husband was appropriate, it held that one-time nonrecurring payments should not have been utilized in calculating the husband’s income, including the value of a Mexican vacation, the “probable” payment of counsel fees, a vaccination bonus, the sale of an elliptical, Honda ATV and PRG vacation pay. There was no evidence that these payments would continue in the future and as such they artificially inflated the husband’s imputed income. Thus, these payments should not have been utilized in determining his ongoing maintenance obligation.

 

 

Despite the father’s alleged lack of biological relationship to the subject child the father’s unchallenged acknowledgment of paternity afforded him the legal status of a parent for purposes of this custody proceeding.

In  Matter of Autumn B., v. Jasmine A., --- N.Y.S.3d ----, 2023 WL 6883411, 2023 N.Y. Slip Op. 05293 (3d Dept.,2023) Respondents Jasmine A. ( mother) and Glenn ZZ. ( father) were the parents of the subject child (born in 2014); although the father’s paternity had been questioned, it was undisputed that he executed a voluntary acknowledgment of paternity following the child’s birth and that the acknowledgment remained in force. The child, like his older half sister, was raised by his maternal grandparents, whom the child understood to be his mother and father. Following the grandmother’s death in March 2020, petitioner (aunt), the child’s maternal aunt, commenced hearing, Family Court awarded the aunt sole custody of the child and granted the father 30 minutes of supervised video visitation every two weeks and at least two hours of supervised, in-person visitation per year. The Appellate Division held as a  preliminary matter, although there may have initially been an unwarranted amount of attention paid to the father’s alleged lack of biological relationship to the subject child, it was ultimately accepted that the father’s unchallenged acknowledgment of paternity affords him the legal status of a parent (see generally Family Ct Act § 516–a; Public Health Law § 4135–b). It therefore rejected the father’s argument that Family Court’s award was affected by a fundamental misunderstanding of law. The Appellate Division rejected the father’s assertion that the aunt failed to establish extraordinary circumstances and that the  father has not cared for the child for any period of time, and there was no indication of any meaningful relationship between them. He offered no evidence to show that he had considered, and could meet, any of the child’s basic needs. Deferring to Family Court’s credibility determinations and factual findings, it found a sound and substantial basis in the record for awarding the aunt sole custody of the child.

 

           

The certification requirement of Family Ct Act § 1046(a)(iv) does not apply to proceedings which seek the  termination of parental rights under Social Services Law § 384–b

 

In Matter of Nevaeh N. ,--- N.Y.S.3d ----, 2023 WL 6883449, 2023 N.Y. Slip Op. 05292 (3d Dept.,2023) the Appellate Division affirmed an order which terminated the parents rights on the grounds of permanent neglect. It rejected the fathers argument, that the court erred in admitting certain substance abuse treatment records because they lacked a certification required by Family Ct Act § 1046(a)(iv). It held that the certification requirement of Family Ct Act § 1046(a)(iv) did not apply to these proceedings which sought the termination of parental rights under Social Services Law § 384–b (see Matter of Shirley A.S. [David A.S.], 90 A.D.3d 1655, 1655, 936 N.Y.S.2d 825 [4th Dept. 2011]). Even if the court erred in admitting these records, it was harmless error.

 

 

Family Ct Act § 1046 does not place a time limit on the admissibility of prior findings

 

In  Matter of Bonnie FF. --- N.Y.S.3d ----, 2023 WL 6883479, 2023 N.Y. Slip Op. 05294 (3d Dept.,2023) the Appellate Division held that Family Ct Act § 1046 does not place a time limit on the admissibility of prior findings and our courts have not established a bright-line temporal rule prohibiting the consideration of prior protective determinations (see Matter of Evelyn B., 30 A.D.3d 913, 915, 819 N.Y.S.2d 573 [3d Dept. 2006]).

 

 

In a Termination of parental rights proceeding an agency may move for an order finding that “reasonable efforts to return the child to his or her home are no longer required” where “the parental rights of the parent to a sibling of such child have been involuntarily terminated. (Family Ct Act § 1039–b [b][6]).

 

In Matter of Y. SS., --- N.Y.S.3d ----, 2023 WL 6883470, 2023 N.Y. Slip Op. 05296 (3d Dept.,2023) the Respondent  was the mother of the subject child (born in 2013). The Appellate Division observed that it  had recently upheld a neglect adjudication involving the child and her continued placement with petitioner, which was premised upon the mother having photographed the child in a sexually explicit manner, disseminated those photographs and agreed to involve the child in her performance of sexual services for money (211 A.D.3d 1390, 180 N.Y.S.3d 675 [3d Dept. 2022]). Following that adjudication, petitioner moved to be relieved of its obligation to make reasonable efforts to reunite the mother with the child, citing the involuntary termination of the mother’s parental rights to several of the child’s siblings (Family Ct Act § 1039–b [b][6]). The attorney for the child supported the motion, the mother opposed and Family Court granted it without a hearing. The Appellate Division affirmed. It observed that ordinarily, to establish permanent neglect, the petitioning agency will need to demonstrate, as relevant here, that it has made “diligent efforts to encourage and strengthen the parental relationship”. However, an agency may move for an order finding that “reasonable efforts to return the child to his or her home are no longer required” in certain circumstances. One such circumstance is where “the parental rights of the parent to a sibling of such child have been involuntarily terminated,” unless the court further “determines that providing reasonable efforts would be in the best interests of the child, not contrary to the health and safety of the child, and would likely result in the reunification of the parent and the child in the foreseeable future” (Family Ct Act § 1039–b [b][6]). Although the Family Ct Act “does not require an evidentiary hearing on such a motion, courts have found that such a hearing is required by constitutional notions of due process ‘when genuine issues of fact are created by the answering papers. Petitioner’s submissions detailed the mother’s 30–year history of removals, neglect findings and terminations of her parental rights as a result of her failure to meaningfully address her mental health and her attendant issues with substance abuse, housing, employment and safe parenting generally. This history includes the involuntary termination of her parental rights with respect to four of the child’s siblings. Contrary to the mother’s assertion, there is no temporal limitation on the terminations that may be considered on a motion pursuant to Family Ct Act § 1039–b (see Family Ct Act § 1039–b [b][6]. Upon review, it found that Family Court soundly determined, without a hearing, that the exception in Family Ct Act § 1039–b did not apply.

 

October 18, 2023

 

 

Appellate Division, First Department

 

 

The granting of an income execution for maintenance arrears does not  foreclose entry of a money judgment on maintenance arrears

In Beer v Beer, --- N.Y.S.3d ----, 2023 WL 6626902, 2023 N.Y. Slip Op. 05182 (1^st Dept.,2023 the Appellate Division held, inter alia, that an income execution, awarded to the wife after the husband unilaterally prevented her from receiving a portion of his income, did not foreclose entry of a money judgment on maintenance arrears (see Domestic Relations Law § 244; Seale v. Seale, 154 A.D.3d 1190, 1194, 63 N.Y.S.3d 550 [3d Dept. 2017]; Gnoza v. Gnoza, 293 A.D.2d 571, 571–572, 740 N.Y.S.2d 226 [2d Dept. 2003]).

 

 

 

           

Appellate Division finds Implicit consent to an order of reference by actively participating in the proceeding without challenging the Referee’s jurisdiction.

 

In Edward C. Y.,v. Jessica E. H.,.2023 WL 6626818 (1^st Dept.,2023), a family offense proceeding, the Appellate Division held that although the record did not reflect that respondent provided written consent to the order of reference (see CPLR 4317[a]), respondent implicitly consented to the order of reference by actively participating in the proceeding without challenging the Referee’s jurisdiction.

 

 

Appellate Division, Second Department

 

 

In termination of parental rights proceeding on the ground of abandonment mother was still obligated to maintain contact with the petitioner, who had legal custody of the child, even though the court had suspended her parental access

 

In Matter of Abel J.R. --- N.Y.S.3d ----, 2023 WL 6613595, 2023 N.Y. Slip Op. 05139 (2d Dept.,2023) a proceeding to terminate parental rights, the Appellate Division held that the mother failed to demonstrate that the petitioner Agency prevented or discouraged her from communicating with it or with the child, or that she was otherwise unable to do so. The mother’s contention that the petitioner prevented her from communicating with the child by suspending her parental access was without merit, as it was the Family Court that suspended the mother’s parental access with the child, not the petitioner. Further, the mother was still obligated to maintain contact with the petitioner, which had legal custody of the child, even though the court had suspended her parental access (see Matter of “Baby Boy” N. [Albert N.], 163 A.D.3d 570, 572, 81 N.Y.S.3d 91; Matter of Alexandryia M.M.B. [Heather C.], 132 A.D.3d 664, 664, 17 N.Y.S.3d 321). The Family Court ruled that the mother could not present evidence regarding events that occurred before the statutory abandonment period. Family Court’s ruling relating to the petitioner’s alleged discouragement before the statutory abandonment period did not prevent the mother from establishing that her failure to communicate with the child or with the petitioner was due to the petitioner’s discouragement (see Matter of Alexa Ray R., 276 A.D.2d 703, 704, 714 N.Y.S.2d 347). The court was presented with evidence that the petitioner’s alleged conduct before the statutory abandonment period discouraged the mother from communicating with the petitioner during the statutory abandonment period. The alleged additional evidence proffered by the mother, even if credited, would not have risen to the level of agency discouragement or prevention of contact. Assuming arguendo that the additional testimony regarding the petitioner’s alleged discouragement before the statutory abandonment period was relevant and should have been admitted, under the circumstances of this case, any error in the Family Court’s ruling was harmless.

 

 

Supreme Court

 

 

Plaintiff did not establish the alleged harassing statements were made with the necessary intent to harass, alarm, or annoy her where  each of the alleged statements was made in the context of discussing issues related to the parties’ children

           

In  S.D.  v. J.D., 2023 WL 6614672, Unreported Disposition (Sup. Ct., 2023) a post-judgment proceeding, the Supreme Court denied the plaintiff’s motion for a temporary Order of Protection against Defendant. It observed that Domestic Relations Law (DRL) § 240(3) permits the court to make an order of protection in connection with any custody order and DRL § 252(1) mandates that the court entertain an application for an order of protection or temporary order of protection made by either party in either a pre-judgment or post-judgment proceeding. Courts have followed the case law developed under Article 8 of the Family Court Act when deciding such applications. The party alleging a family offense has the burden of establishing the complained of conduct by a fair preponderance of the evidence. Penal Law § 240.26 provides in relevant part that “[a] person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person: 3. 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.”  The intent to commit harassment in the second degree can be inferred from the party’s conduct and the surrounding circumstances. Finn v. Harrison, 188 AD3d 1200 (2d Dept. 2020) (intent to commit harassment in the second degree properly inferred from the respondent’s conduct, which included “her use of abusive language directed at the petitioner and her threatening action of videotaping the petitioner while she slept, both of which frightened the petitioner, caused her blood pressure to rise, and served no legitimate purpose”); Matter of Howard v. Howard, 181 AD3d 894, 896 (2d Dept. 2020) (intent to commit harassment in the second degree properly inferred from the respondent’s threatening conduct and use of abusive language directed at the petitioner which frightened the petitioner and served no legitimate purpose). Moreover, a single incident is sufficient to establish harassment in the second degree. See Matter of Richardson v. Brown, 173 AD3d 876, 876—877 (2d Dept. 2019) (evidence established the respondent committed the family offense of harassment in the second degree based on a text message sent by him to the petitioner, which “contained a genuine threat of physical harm, and the evidence ... adequately demonstrated that it was reasonable for the petitioner to take the threat seriously since it was sent during a period of extreme marital discord”).  The Court found that Plaintiff failed to allege the requisite elements to state a claim for harassment in the second degree and that the offending statements at issue, which were undisputed rose to the level of a family offense. The plaintiff did not establish the alleged harassing statements were made with the necessary intent to harass, alarm, or annoy her. See Mamantov v. Mamantov, 86 AD3d 540, 551 (2d Dept. 2011) (“accepting the evidence as true and giving her the benefit of every reasonable inference, the wife failed to demonstrate, prima facie, that the husband, in committing the act alleged, acted with an ‘intent to harass, annoy or alarm’ ”). Rather, each of the alleged statements was made in the context of discussing issues related to the parties’ children and Plaintiff herself made similar statements and used similar language towards Defendant. Courts have determined that “[m]ere words alone are not enough to constitute the family offense of harassment.” Lisa T. v. K.T., 49 Misc 3d 847, 853 (Fam. Ct. 2015) (respondent’s emails to petitioner in custody dispute were not sent with the intention of harassment where respondent obtained a custody order giving him a legitimate reason to contact petitioner); see also People v. Dietze, 75 NY2d 47, 51 (1989) (“unless speech presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized”).

 

 

Family Court

 

 

New York was not the children’s “home state” within the meaning of Domestic Relations Law § 75-a(7), and New York did not have initial child custody jurisdiction under Domestic Relations Law § 76 where none of the children lived in New York within the six-month period before the commencement of the proceedings.

 

In Matter of E.P.,v. B.S., --- N.Y.S.3d ----, 2023 WL 6819194, 2023 N.Y. Slip Op. 23318 (Fam Ct, 2023) the father contended that New York lacked initial child custody jurisdiction because New York was not the “home state” of the children within the meaning of Domestic Relations Law § 75-a (7) because none of the children were living in New York for the six months immediately before the filing of the petitions in November 2022. Previous custody petitions had been filed in New York in 2017 and New York had issued temporary orders regarding custody and visitation in those proceedings. All the petitions filed in 2017 were dismissed in November 2022. The father pointed out that when the 2017 proceedings were commenced, none of the children resided in New York. For more than six months before the filing of the 2017 petitions, the children C. and A. had resided in Connecticut with the mother. Family Court held that since all the petitions filed in 2017 have been dismissed and the temporary orders vacated, the issue was not whether the court had initial child custody jurisdiction in 2017 when the parties filed those petitions, but rather whether the Court now had initial child custody jurisdiction on the petitions filed in 2022. None of the children lived in New York within the six-month period before the commencement of the proceedings. It was undisputed that the children C. and A. had been residing with the mother in New Jersey since 2019. As such, New York was not the children’s “home state” within the meaning of Domestic Relations Law § 75-a(7), and New York did not have initial child custody jurisdiction under Domestic Relations Law § 76.

October 11, 2023

 

Appellate Division, First Department

 

 

New York was the child’s home state, where the child had resided in New York for over six months prior to the mother filing for custody. Her relocation from Morocco to escape domestic violence was not wrongful removal of the child and her petition for custody was, therefore, properly commenced in New York.

            In Matter of Geraldine H.T.B., v. Guillaume A.P.M.J., --- N.Y.S.3d ----, 2023 WL 6558919, 2023 N.Y. Slip Op. 05091 (1^st Dept.,2023) the Appellate Division affirmed an order of the Family Court which held that New York had exclusive jurisdiction over the custody proceeding for the subject child under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The Family Court properly determined that New York was the child’s home state, based on the fact that the child had resided in New York for over six months prior to the mother filing for custody (see Domestic Relations Law §§ 75–a[7], 76[1][a], 76–a[1]). The mother’s relocation from Morocco to escape domestic violence was not wrongful removal of the child (see Domestic Relations Law § 76–g[4], Jacquety v. Baptista, 538 F.Supp.3d 325 [S.D.N.Y.2021]), and her petition for custody was, therefore, properly commenced in New York. This was not contradicted by the mother having filed a divorce petition in Morocco, as that petition did not seek custody of the child. Nor did the father filing a petition for reconciliation in Morocco constitute a custody proceeding under the UCCJEA, as that filing was not made in substantial conformity with the jurisdictional requirements of the UCCJEA (see Domestic Relations Law § 76[1]. As a matter of New York’s public policy to protect the victims of domestic abuse, Family Court’s conclusion that enforcing the Moroccan judgment would subject both the mother and the child to grave risk of harm was a proper exercise of Family Court’s discretion under the circumstances (see Domestic Relations Law §§ 75[2]; 75–d[3]).

 

 

 

Appellate Division, Second Department

 

 

While the Domestic Relations Law allows for deductions for “unreimbursed employee business expenses except to the extent said expenses reduce personal expenditures” such expenses are properly deducted from parental income in calculating child support obligations only when proven, usually by tax returns accompanied by records and receipts.         

 

            In Qazi v Qazi, --- N.Y.S.3d ----, 2023 WL 6452028, 2023 N.Y. Slip Op. 04970 (2d Dept.,2023) the parties were married in 1994 and had two children. The plaintiff commenced the  action for a divorce in May 2016. Supreme Court, inter alia, imputed an annual income of $72,000 to the defendant for purposes of calculating child support, and, utilizing this figure, directed the defendant to pay $1,384.10 per month in basic child support, as well as 66% of the children’s unreimbursed medical and undergraduate college expenses. The Appellate Division held that Supreme Court’s discretionary determination to impute an annual income to the defendant of $72,000 for the purposes of calculating child support, based upon the defendant’s own admissions, was supported by the record. While the Domestic Relations Law allows for deductions for “unreimbursed employee business expenses except to the extent said expenses reduce personal expenditures” (Domestic Relations Law § 240[1–b][5][vii][A]), such expenses “are properly deducted from parental income in calculating child support obligations only when proven, usually by tax returns accompanied by records and receipts. As the defendant failed to prove his actual, current business expenses, it affirmed the judgment of divorce insofar as appealed from.

 

 

 

To ensure that waivers of the statutory provisions of the CSSA are truly knowingly made, Domestic Relations Law § 240(1–b)(h) requires that, in order to be valid, a stipulation must contain the required recitals 

 

            In Sayles v Sayles, --- N.Y.S.3d ----, 2023 WL 6452033, 2023 N.Y. Slip Op. 04968 (2d Dept.,2023) the parties were married in 1996 and had two children. In May 2012, the parties entered into a separation agreement in which they agreed that the defendant would pay child support of $1,200 per month for the parties’ two children, an amount that was specified in the agreement to be less than the presumptively correct amount of support that would have been calculated pursuant to the Child Support Standards Act ( CSSA), and also agreed that the defendant would pay child support of $600 per month upon the emancipation of the parties’ first child. In 2021, the plaintiff commenced the action for a divorce and moved, to set aside and vacate the child support provisions of the separation agreement requiring the defendant to pay $600 per month in child support upon the emancipation of the parties’ first child and to direct the defendant to pay the presumptively correct amount of child support for one child in accordance with the CSSA, arguing that the parties’ separation agreement failed to comply with the recital requirements of the CSSA (see Domestic Relations Law § 240[1–b][h]). The Supreme Court denied the plaintiff’s motion. The Appellate Division reversed. It held that to ensure that waivers of the statutory provisions of the CSSA are truly knowingly made, Domestic Relations Law § 240(1–b)(h) requires that, in order to be valid, a stipulation must recite that the parties have been made aware of the CSSA, and that the basic child support obligation provided for therein would presumptively result in the correct amount. Where the stipulation deviates from the basic child support obligation, it must specify what the presumptive amount would have been and the reason for the deviation”.  Here  the provisions in the parties’ separation agreement relating to the child support obligations with respect to one child did not contain the specific recitals mandated by the CSSA, and the record did  not demonstrate that the plaintiff’s agreement to said provisions was made knowingly. Accordingly, the provisions were  not enforceable.

 

 

The respondent in a civil contempt proceeding who faces the possibility of the imposition of a term of imprisonment has the right to the assignment of counsel upon a finding of indigence

 

 

            In Hoffman v Hoffman, --- N.Y.S.3d ----, 2023 WL 6451999, 2023 N.Y. Slip Op. 04959 (2 Dept.,2023) the Appellate Division held that in  general, the respondent in a civil contempt proceeding who faces the possibility of the imposition of a term of imprisonment, however short, has the right to the assignment of counsel upon a finding of indigence. Moreover, a parent has the statutory right to counsel in a proceeding in which it is alleged that he or she has willfully failed to comply with a prior child support order.  (Family Ct Act § 262 [a] [vi]).

 

 

 

Supreme Court

           

 

 

 

Supreme Court Granted Comity to German Judgment. Duly recognized foreign judgments are immune from collateral attack in the New York courts by a party who, as here, properly appeared in the foreign divorce action, absent some showing of fraud or a violation of a strong public policy of the State.

 

            In Application of Nicole P., 2023 WL 6528954 (Sup. Ct.,2023) Nicole P., sought an  Order awarding her a Majauskas share, with pre- and post-survivorship benefits, of Respondent’s military retirement benefits, and pension benefits from his employment with General Electric. The parties entered into  mediation which resulted in the execution of a settlement agreement, which was prepared in English, on April 28, 2017. Thereafter, the parties were advised that the Swiss Court would only accept documents written in German before a divorce could be granted. As a result, the parties had their executed separation agreement translated into German by a certified translator and executed the translated agreement on May 12, 2017. Because the parties did not have the ability to read or understand the German language, they were unable to personally verify the accuracy of the translated separation agreement.. The parties were represented by the mediator for the duration of the proceedings before the Swiss court. On or about September 15, 2022, Petitioner filed the application. Respondent argued that Petitioner waived any claim to his pension and military benefits based on the terms of the English version of the settlement agreement. The English agreement provided, in relevant part, as follows: *2 5. Dividing of pension funds “All USA pensions are divided according to NY law; this includes military pension and [Respondent’s] GE pension, and any other pensions and social security government pension[s].” After receiving Petitioner’s application, Respondent was advised by his Swiss attorney that the German version of the parties’ separation agreement did not contain an accurate translation of the pension provision in the English agreement. According to Respondent, the pension provision in the German agreement provided as follows: 5. Allocation of the pension fund “All US pensions are shared under New York State law, this includes the US Army Veteran’s Pension and his GE pension, as well as any other government pensions and AHV pensions.” Respondent commenced a proceeding in the Swiss court seeking to correct/amend the German version of the agreement due to the alleged translation mistake. The Swiss court issued a decision dismissing Respondent’s application and declared the German agreement to be legally valid and binding. The Court found that the German version of the parties’ agreement was controlling. Respondent petitioned the Swiss court regarding the differing translations of the pension provisions and the Swiss court held that the German agreement is the legally binding agreement between the parties. Furthermore, the parties’ Swiss divorce decree dated May 12, 2017, and entitled “Ruling of the President of the Court,” specifically stated that both the English and German versions of the parties’ separation agreement “are attached to this ruling as an integral part” but that the “German version is the decisive one.” Supreme Court held that New York courts will generally accord recognition to bilateral foreign judgments of divorce, including the terms and provisions of any agreements incorporated therein, under the doctrine of comity. No specific language is necessary to create an incorporation by reference. The court must look to the entire judgment of divorce and the surrounding circumstances. These duly-recognized foreign judgments are thereafter immune from collateral attack in the New York courts by a party who, as here, properly appeared in the foreign divorce action, absent some showing of fraud or a violation of a strong public policy of the State. The Court found  no basis to disturb the Swiss court’s ruling that the German version of the separation agreement was a legally binding (see S.B. v. W.A., 38 Misc 3d 780, 798-99; Tal v. Tal, 158 Misc 2d 703, 706).

 

 

 

 

 

October 4, 2023

 

Appellate Division, First Department

 

 

Mother did not have a right to habeas corpus relief pertaining to the illegal detention of a child where the child is not present in New York 

            In Matter of Alexandra RR v Doris H, 2023 --- N.Y.S.3d ----, 2023 WL 6394632, 2023 N.Y. Slip Op. 04948(1^st Dept.,2023) the Appellate Division held that the Family Court properly denied the mother’s petition for a writ of habeas corpus. As the petitions for writs of habeas corpus pertained to the illegal detention of a child by either parent, which is not present here [in New York]  the mother did not have a right to habeas corpus relief (Domestic Relations Law § 70[a]; see Matter of Kiara B. v. Omar R., 147 AD3d 476 [1st Dept 2017]).

 

 

Appellate Division, Second Department

 

 

While an agreement is not unconscionable merely because, in retrospect, some of its provisions were improvident or one-sided, an agreement that might not have been unconscionable when entered into may become unconscionable at the time a final judgment would be entered.

 

In McEvoy v McEvoy, --- N.Y.S.3d ----, 2023 WL 6278671, 2023 N.Y. Slip Op. 04764 (2d Dept., 2023) the parties were married on September 13, 2014. Before their marriage, they entered into a prenuptial agreement dated July 2, 2014. The agreement stated, inter alia, that marital property would not be created unless the parties placed marital earnings into a joint account or titled property jointly. All property titled in an individual party’s name would remain separate property, including income earned during the marriage. Both parties also waived their right to maintenance. At the time of the agreement, the plaintiff was employed by Jewish Metropolitan Hospice and the defendant was employed by the New York City Department of Sanitation. The defendant entered the marriage with assets totaling approximately $355,000, while the schedule purporting to list the plaintiff’s assets remained blank. There were two children of the marriage, born in 2015 and 2019. The plaintiff became a stay-at-home parent after the birth of the parties’ first child. The plaintiff suffered a stroke on August 28, 2019. Shortly following her stroke, the plaintiff petitioned the Family Court for, inter alia, a parenting schedule, and the parties were subsequently granted joint physical custody of the children. In February 2020, the plaintiff commenced the action for a divorce and moved, inter alia, to set aside the parties’ prenuptial agreement. The defendant cross-moved for summary judgment on the validity of the prenuptial agreement. The Supreme Court granted the plaintiff’s motion to set aside the parties’ prenuptial agreement, awarded the plaintiff $2,885.94 per month in temporary maintenance and $10,000 in interim attorneys’ fees, but denied the plaintiff’s motion for an award of pendente lite child support. The Appellate Division observed that an unconscionable bargain is one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense. While “an agreement is not unconscionable ‘merely because, in retrospect, some of its provisions were improvident or one-sided an agreement that might not have been unconscionable when entered into may become unconscionable at the time a final judgment would be entered” (Taha v. Elzemity, 157 A.D.3d 744, 745–746, 68 N.Y.S.3d 493). It found that the plaintiff sustained her burden of establishing that the prenuptial agreement was unconscionable. Based on the record, the plaintiff received no benefit from the agreement, as no marital assets were created during the marriage and the plaintiff relinquished all rights to any property or earnings titled in the defendant’s name. Enforcement of the agreement would result in the risk of the plaintiff becoming a public charge, as she had suffered a debilitating stroke, had been unemployed since the birth of the parties’ first child, and would be left largely without assets, while the defendant would retain approximately $942,000 in assets and continue making approximately $190,000 per year.

 

            The Appellate Division also held that the Supreme Court erred in denying plaintiff’s motion for pendente lite child support. The Court of Appeals held that the Child Support Standards Act applies to shared custody cases and that child support in a shared custody case should be calculated as it is in any other case. Where neither parent has the child for a majority of the time, the parent with the higher income, who bears the greater share of the child support obligation, should be deemed the noncustodial parent for the purposes of child support. It was undisputed that the parties share physical custody of the children equally. The defendant was estopped from claiming that he was the primary physical custodian of the children for child support purposes, which was a contrary and inconsistent position to the position he took in motion practice The plaintiff was considered the custodial parent for purposes of child support, as she was the nonmonied spouse. The defendant was directed to pay to the plaintiff $2,885.94 per month in basic child support, as well as 80% of the children’s add-on expenses, during the pendency of this action.

 

 

The court properly took judicial notice of a functionally identical CPI index published by the government to replace the defunct CPI index specified in the prenuptial agreement to give effect to the parties’ stated intent. The discontinuance of the index specified in the prenuptial agreement did not render the subject clause unenforceable.

           

 

            In Lin v Banko, 2023 WL 6278707 (2d Dept.,2023) the parties entered into a prenuptial agreement in July 2001 and married in August 2001. The prenuptial agreement established, inter alia, the plaintiff’s entitlement to a distributive award in an amount dependent upon the duration of the parties’ marriage as measured from the earliest of three alternative termination events, including, as relevant here, the “separation” of the parties or the commencement of an action for divorce. The prenuptial agreement also fixed maintenance of $50,000 per annum, payable monthly. This sum was to be adjusted according to a specified inflation index published by the U.S. Department of Labor. The plaintiff commenced this action for a divorce. Supreme Court conducted a nonjury trial and determined, inter alia, that, for the purposes of the prenuptial agreement, the marriage terminated on the commencement of this action, and that the 2018 “CPI for Urban Wage Earners and Clerical Workers, New York–Newark–Jersey City, NY–NJ–PA” index ( the 2018 Index) would be used to calculate the adjustments to the maintenance sum in place of the index specified in the prenup. The judgment of divorce, awarded the plaintiff maintenance of $6,216.66 per month, to be adjusted annually according to the 2018 Index, and awarded the plaintiff a distributive award of $850,000.

 

            The Appellate Division affirmed. It held that contrary to the defendant’s contention, the credible evidence adduced at trial supported the Supreme Court’s determination that the parties did not separate in May 2016 and that therefore, the parties’ marriage terminated, for purposes of calculating the distributive award, on the day that the plaintiff commenced this action. The Supreme Court also correctly determined that the parties intended for annual cost of living adjustments to be applied to the defendant’s maintenance obligation. The parties expressly agreed that the “fairness and adequacy” of the maintenance sum depended on yearly adjustments to the amount of maintenance in line with increases to the cost of living. The court, therefore, properly rejected the defendant’s proffered interpretation of the prenuptial agreement as inconsistent with the parties’ intent, and properly took judicial notice of a functionally identical index published by the same government source to replace the defunct index specified in the prenuptial agreement to give effect to the parties’ stated intent. Contrary to the defendant’s contentions, the discontinuance of the index specified in the prenuptial agreement did not render the subject clause unenforceable.

 

Supreme Court

 

Supreme Court set aside judgment of divorce pursuant to CPLR 5015(a)(3) based on intrinsic fraud and restored the action to the calendar where the husband’s assertion that the wife did not have a social security number was false as was the sworn statement that there were no children of the marriage.

 

        In Eyon G v Monica G, 2023 WL 6382649 (Sup. Ct., 2023) the parties were divorced pursuant to an Uncontested Judgment of Divorce, on default, based upon irretrievable breakdown of the marriage. Defendant-Wife contended that the Judgment of Divorce should be set aside because it was “based on lies” and that the action be restored to the calendar. She testified that she was never served, nor did she ever reside at the address listed on the affidavit of service. She also noted that she had a social security number and that the husband’s assertion that she did not have a social security number was false as was the sworn statement that there were no children of the marriage. The Court found her testimony to be credible. The Plaintiff testified that he commenced the divorce action; that he was referred to someone by the name of “Reynaldo” in Brooklyn to assist him in preparing the divorce paper; that he was given an “information sheet” to fill out which listed  the name of a self-represented divorce company; that another individual named “Orlando” prepared and filed the divorce documents on his behalf and that neither Reynaldo nor Orlando asked him whether he had any children, although he had six (6) children. He testified that after Orlando prepared the documents he reviewed and signed the documents. The Court granted the motion. It observed that CPLR 5015 (a) (3) provides that “the court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct upon the ground of: fraud, misrepresentation, or other misconduct of an adverse party.” A defendant seeking to vacate a judgment of divorce has the burden of establishing, by admissible evidence, the existence of fraud, misrepresentation, or other misconduct on the plaintiff’s part sufficient to entitle him or her to vacatur. The Defendant met that burden.“Where a defendant seeks to vacate a default pursuant to CPLR 5015(a)(3) based on intrinsic fraud, he or she must establish a reasonable excuse for the default and a potentially meritorious defense to the action” (Mission Field Church, Inc. v. Lindsay, 214 AD3d 981, 982 [2d Dept 2023]). “It is well established that a party seeking to set aside a judgment on the basis of fraud “will not prevail by merely showing fraud in the underlying transaction but must show fraud in the very means by which the judgment was procured”  (Cofresi v. Cofresi, 198 AD2d 321, 321 [2d Dept 1993]). Here, the Wife was able to establish a meritorious defense. The very means by which this Judgment of Divorce was procured was fraudulent. The Husband failed to offer a satisfactory explanation for this misrepresentation and appeared to shift blame to the individual who assisted him in preparing the divorce papers. The concealment was in effect also a fraud upon the Court. The Plaintiff-Husband filed a false affidavit pursuant to Penal Law § 175.30. The sworn, notarized statements submitted by the Plaintiff-Father to procure a Judgment of Divorce constituted “material factual statements that are false” within the meaning of 22 NYCRR 130—1.1(c). The plaintiff was sanctioned $500.00 for his frivolous conduct in filing a false instrument with the court. The motion to vacate the judgment was granted, the Judgment of Divorce was vacated, and action was restored to the contested matrimonial calendar.

 

 

 

Supreme Court found that in both New York and New Jersey, a marriage is formed when a couple obtains a marriage license and partakes in a wedding ceremony before a proper officiant at which the parties solemnly declare that they take each other as spouses. The parties satisfied these requirements.

 

            In S.F., v. J.S., Slip Copy, 2023 WL 6382637 (Table), 2023 N.Y. Slip Op. 51033(U) Unreported Disposition (Sup. Ct.,2023) defendants motion to dismiss the action, contending that no valid marriage existed between the parties was denied, and summary judgment was granted in plaintiffs favor. The parties became engaged to marry on November 25, 2019.   The parties had a religious wedding ceremony and party, which took place on June 21, 2021 at a wedding venue in New Jersey. Approximately one month prior to the wedding, the parties submitted a sworn Application for Marriage License to the New Jersey Department of Health. Page two of the License Application reflects that a wedding license was duly granted on May 18, 2021, and would expire on August 15, 2021.  On June 21, 2021, the parties participated in a Jewish wedding ceremony witnessed by more than 200 friends and family. Before the ceremony took place under the chuppah (a Jewish wedding canopy), the men and women were kept in separate rooms. In the men’s room, an engagement contract was signed and then the parties’ mothers came in and broke a plate with a hammer as part of this contract. The parties’ Ketubah (a traditional Jewish marriage contract) was signed by Rabbi X and then two (2) witnesses, M.H. and E.P., both close friends of Defendant. Thereafter, the wedding ceremony took place under the chuppah. This was composed of two (2) parts - the kiddushin and the nissuin. First, the Rabbi asked several questions of the Defendant. When he agrees, he is asked to give the bride the ring that he owns. This “transfer of possession” is called “Kinyon,” and shows the consent of both parties to enter into marriage. Just before presenting the bride with the ring, the groom says “Behold, by this ring you are consecrated to me as my wife according to the laws of Moses and Israel.” Here, Defendant transferred the ring to Plaintiff and recited the statement. This statement, along with the act of Kinyon, makes the bride and groom married. After the chuppah ceremony, the parties went to a personal suite, guarded by two witnesses, to consummate the marriage. The wedding reception was held immediately after the ceremony. The parties disputed whether the wedding ceremony was only intended to be “symbolic.” Plaintiff  disputed Defendant’s claim that they both agreed not to have the marriage license/certificate filed with the New Jersey Department of Health following the wedding. Ultimately, the certificate was never filed.   Both parties claimed not to know where the unrecorded original certificate was located currently. The Court found that in both New York and New Jersey, a marriage is formed when a couple obtains a marriage license and partakes in a wedding ceremony before a proper officiant at which the parties solemnly declare that they take each other as spouses. The parties satisfied these requirements. However, in New York the failure to obtain a marriage license does not void a properly solemnized marriage (see Dom Rel § 25). The Domestic Relations Law establishes that where parties participate in a solemn marriage ceremony officiated by a clergyman or magistrate wherein they exchange vows, they are married in the eyes of the law (Persad v Balram, 187 Misc 2d 711, 713 [Sup Ct, Queens County 2001]). The Court found that the marriage was valid under New York and New Jersey law. It rejected defendant argument that  the parties’ marriage was invalid under New York law because the rabbi who solemnized the marriage did not register with the Clerk of New York City. This claim has specifically been rejected by controlling appellate authority (See Shamsee v. Shamsee, 51 AD2d 1028 [2nd Dep’t 1976].  Defendant’s reliance on Ponorovskaya v. Stecklow (45 Misc 3d 597 [Supreme Court, New York County 2014]) was misplaced as the circumstances here were distinguishable. In Ponorovskaya, the court declined to apply New York law to find a marriage valid where the parties did not complete the application for a marriage license, had a “symbolic” ceremony in Mexico, and knew or should have known that they were not complying with the Mexican formalities required. Further, neither one had a justifiable “expectation that they were legally married,” and defendant “unequivocally knew both before and after the wedding that it did not constitute a valid marriage.” Nor was this case akin to Devorah H. v. Steven S. (49 Misc 3d 630 [Supreme Court, New York County 2015]). In Devorah H., the “wedding,” although conducted by a rabbi, was spontaneous and sudden, “bare-boned,” and lasted only a few minutes. Further, there may or may not have been witnesses, rings were not exchanged, and it is unclear if there was a Ketubah. In addition, the rabbi who officiated expected and advised the parties to obtain a marriage license and come back to him to conduct another ceremony, indicating his awareness that the impromptu ceremony had no legal import. Because the parties’ actions unquestionably satisfied the statutory requirements to form a marriage in both New Jersey and New York, there was no basis to dismiss this action.

September 27, 2023

 

Appellate Division, First Department

 

 

 

Appellate Divison holds that the lack of a post-judgment retainer agreement did  not preclude recovery of counsel fees where the wife’s counsel substantially complied with 22 NYCRR 1400.3

            In McLennan v McLennan, --- N.Y.S.3d ----, 2023 WL 6219225 (Mem), 2023 N.Y. Slip Op. 04724 (1^st Dept.,2023), a post-judgment enforcement and modification proceeding,  the Appellate Division held that the absence of a post-judgment retainer agreement did not preclude recovery of counsel fees here, where the wife’s counsel substantially complied with the requirements of 22 NYCRR 1400.3 and the wife clearly authorized counsel to act on her behalf.

 

 

 

Appellate Division, Second Department

 

 

 

Islamic Mahr agreement was unenforceable for lack of proper acknowledgment required by Domestic Relations Law § 236(B)(3), as it would be improper and unconstitutional to treat a Mahr agreement differently than other religious or nonreligious nuptial agreements

            In Khan v Hasan, 2023 WL 6134161 (2d Dept., 2023) the parties were married in a civil ceremony on March 2, 2016, and subsequently held a religious ceremony on September 12, 2016. Their  religious certificate of marriage, which was signed by two witnesses and an imam, but was not acknowledged, listed  an amount of $50,000 for “Meher.” The parties assert that a Meher or Mahr agreement is an agreement between the parties to a marriage, under Islamic law, that the husband will pay to the wife a specified sum in the event of a divorce. Related to an action for a divorce the plaintiff commenced a plenary action to set aside the Mahr agreement. Supreme Court granted the plaintiff summary judgment and determined that the Mahr agreement was unenforceable for lack of acknowledgment. The Appellate Division affirmed. It pointed out that the Court may apply well-established principles of secular law to the dispute, thus permitting judicial involvement to the extent that it can be accomplished in purely secular terms” (Avitzur v. Avitzur, 58 N.Y.2d 108). It noted that Domestic Relations Law § 236(B)(3) states that an agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. An unacknowledged agreement is invalid and unenforceable in a matrimonial action (Matisoff v. Dobi, 90 N.Y.2d 127). Here, pursuant to the neutral principles of law approach, the Supreme Court properly determined that the Mahr agreement was unenforceable for lack of proper acknowledgment, as it would be improper and unconstitutional to treat a Mahr agreement differently than other religious or nonreligious nuptial agreements in terms of procedural requirements. It rejected the defendant’s contention that she could cure the acknowledgment defect, as the Court of Appeals has held that “an acknowledgment must be executed contemporaneously, although not necessarily simultaneously, with the party’s signing of the agreement (Anderson v. Anderson, 37 N.Y.3d 444).

 

           

 

Family Court erred in determining, in effect, that proving sexual abuse was a prerequisite to proving neglect. Family Court also erred in finding that the child’s out-of-court statements about sexual abuse were uncorroborated. Independent statements requiring corroboration may corroborate each other.  

 

            In Matter of Jada W, --- N.Y.S.3d ----, 219 A.D.3d 732, 2023 WL 5251492, 2023 N.Y. Slip Op. 04318 (2d Dept.,2023) the Administration for Children’s Services (ACS) filed a petition against the mother alleging, inter alia, that she had neglected her then7–year–old daughter ( child) by failing to provide the child with proper supervision or guardianship in that she knew or should have known that her then 15–year–old son ( son) with whom she left the child was sexually abusing the child. ACS’s theory of neglect was that the mother neglected the child by leaving the child unattended in the supervision of the son even though the mother knew that the child had alleged that the son had sexually abused her. ACS argued that the mother neglected the child by allowing the son to be a caretaker of the child despite the concerns the mother had or should have had about the son’s history of sexual inappropriateness. After the fact-finding hearing, the Family Court determined that the testimony of each of the two caseworkers was credible and, without specification, that the mother was “mostly credible.” However, the court determined, in effect, that ACS was required to prove that the son was sexually abusing the child as a prerequisite to establishing that the mother neglected the child and that the child’s out-of-court statements to school personnel, the child’s statements to the caseworker that the son has had sex with her, and the statements the child made to her godmother were uncorroborated and thus dismissed the petition.

 

            The Appellate Division reversed and made a finding that the mother neglected the child. It held that the Family Court erred in determining, in effect, that proving sexual abuse was a prerequisite to proving neglect and that ACS had not proven that the mother neglected the child. A finding of neglect is warranted when a parent allows the child to be harmed or placed in substantial risk of harm (see Family Ct Act § 1012[f][i]). A parent, who, by willful omission, fails to protect a child, and as a consequence places the child at imminent risk of harm, demonstrates a fundamental defect in understanding the duties and obligations of parenthood and creates an atmosphere detrimental to the physical, mental, and emotion well-being of the child.

 

            Family Court also erred in finding that the child’s out-of-court statements about sexual abuse were uncorroborated.  To establish its burden of showing by a preponderance of the evidence that the mother neglected the child, a petitioner may rely upon prior out-of-court statements of the child, provided that they are properly corroborated. Corroboration, for purposes of Article 10 proceedings, is defined to mean a]ny other evidence tending to support the reliability of the previous statements, including, but not limited to the types of evidence defined in this subdivision. The Appellate Division pointed out that in Matter of Nicole V., 71 N.Y.2d at 119, 524 N.Y.S.2d 19, 518 N.E.2d 914, the Court of Appeals found sufficient the testimony of the child’s caseworker, the child’s therapist, and the child’s mother, each of whom testified to out-of-court hearsay statements by the child describing incidents of sexual abuse by the respondent in that action. There, the Court found that other evidence in the proceeding, including testimony from an expert that the child’s behavior was symptomatic of a sexually abused child, was sufficient to corroborate the child’s out-of-court statements. The Court noted that the expert identified classic symptoms of child abuse such as a withdrawn demeanor, a typical avoidance mechanism adopted by persons suffering from posttraumatic stress, and the child’s knowledge of sexual activity far beyond the norm for her young age and that the child’s statements demonstrated specific knowledge of sexual activity. The Court also found that the testimony of the mother that the child had developed a vaginal rash after a visit with the respondent corroborated the child’s statements. Notably, the evidence here, like the evidence in Matter of Nicole V., showed that the child had specific knowledge of sexual activity despite her young age and, when asked at the hospital about the sexual abuse, her demeanor changed and she became quiet. Also notable in Matter of Nicole V. was the discussion that, although the out-of-court statements of a child relating to allegations of abuse or neglect must be corroborated to make a finding of abuse or neglect, in certain circumstances, particularly in child abuse proceedings, where the interests of the child are paramount, independent statements requiring corroboration may corroborate each other. This Court has found that evidence of a change in the demeanor of a child, sexual references by a child which are not age-appropriate, and detailed, consistent out-of-court statements of sexual abuse can be sufficient to corroborate a child’s out-of-court statements of sexual abuse. Here, the child’s statements to school personnel, her godmother, and the caseworkers were consistent and detailed about the sexual activity that the son had engaged in with her. In addition, both the mother’s acknowledgment at the hearing that the son admitted to her that he watched pornography in the child’s presence and the son’s admission to the first caseworker that he had his own pornography account directly corroborated the child’s statements that the son watched pornography in her presence. The child’s knowledge of sexual behavior despite her age—her depiction to school personnel of the son’s pumping motion with his penis and her discussion of sex, which she called “polo” to the first caseworker, describing it as where “a man and a woman they don’t have any clothes on and they put their private parts into each other,” was further corroboration of her out-of-court statements about the son’s sexual abuse of her. Moreover, the records submitted into evidence demonstrated that the child, who had been happy and talkative at the hospital, became withdrawn and quiet when asked about the sexual abuse. Under these circumstances, the Family Court should have found that the child’s out-of-court statements were sufficiently corroborated by the other evidence in the record that supported the reliability of the child’s out-of-court statements that the son had sexually abused her.

 

 

Appellate Divison, Third Department

 

 

 In a proceeding alleging that the Child was wrongfully retained in New York in violation of the Hague Convention and seeking his return to Italy, Supreme Court erred in directing, without conducting a hearing,  that the child be returned to Italy pending further order of the Italian court where the submissions raised genuine issues of material fact with respect to the “grave risk of harm” and “wishes of the child “exceptions invoked by the father.

 

            In  Matter of Luisa JJ., v. Joseph II., --- N.Y.S.3d ----, 2023 WL 6150233, 2023 N.Y. Slip Op. 04699 (3d Dept.,2023) Luisa JJ. ( mother) and Joseph II (father) were the parents of a child (born in 2013). In June 2019, the parties entered into a separation agreement, pursuant to which they would share joint legal and physical custody of the child beginning in July 2022. In November 2022, the parties entered into a stipulation modifying that arrangement and filed the stipulation in Italy. It provided that they would continue “[shared custody” of the child but that the child would remain in Italy with the mother and the father would have certain extended periods of parenting time in New York throughout the year. Shortly after the child’s arrival in New York in December 2022, he disclosed to the father that a minor relative of the mother’s boyfriend, who frequently stayed in the child’s home, had been sexually abusing him for several months. According to the father, the child stated that he told the mother about the abuse, but she did nothing to stop it. In light of the allegations and the child’s stated fear of returning to Italy, the father elected not to return the child to the mother on January 5, 2023. Italian authorities also began an investigation of the child’s allegations, and an Italian court issued an order on January 19, 2023 “provisionally arrang[ing] the exclusive custody and placement of the [child] with the father until the next hearing, reserving any further measures to the outcome,” and appointing an expert to evaluate the parties and the child. The father and the child did not return to Italy thereafter, and, by order dated April 6, 2023, the Italian court reiterated the need for in-person evaluations and adjourned the proceedings until December 12, 2023.

 

            In May 2023, the mother commenced proceeding No. 1, alleging that the child was being wrongfully retained in New York in violation of the Hague Convention on the Civil Aspects of International Child Abduction and seeking his return to Italy. The father answered and interposed two defenses, provided for in the Hague Convention, that “there is a grave risk that [the child’s] return would expose [him] to physical or psychological harm or otherwise place the child in an intolerable situation” and that “the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of [his] views”. He also moved for, among other things, an evidentiary hearing. The father also commenced proceeding No. 2, requesting that the Supreme Court exercise temporary emergency jurisdiction under Domestic Relations Law § 76–c.

 

            On July 28, 2023, the Supreme Court, without conducting a hearing or making any findings of fact or conclusions of law, ordered that the child be returned to Italy and remain there pending further order of the Italian court, subject to the provision that the mother “not expose the child to the company of” the boyfriend and/or the offending minor.

 

            The Appellate Division reversed and remitted the matter to the Supreme Court to commence the required hearing.  It found that the mother established that the father wrongfully retained the child in New York. It was undisputed that Italy is the child’s country of habitual residence. As for the retention, it was undisputed that, but for the father’s retention, the mother would have been exercising her custody rights to the child following a prompt return. Thus, as of January 6, 2023, the father was wrongfully retaining the child within the meaning of the Hague Convention. The Appellate Division agreed with the father that the Supreme Court abused its discretion in ordering the child’s return without making further inquiry as to the Hague Convention exceptions asserted. There is no law requiring “ ‘that discovery be allowed or that an evidentiary hearing be conducted’ as a matter of right in cases arising under the Convention”. That said, courts routinely hold hearings in circumstances such as these. It is also common to conduct an in-camera interview, direct and/or consider the results of expert evaluations, and/or appoint and hear from an attorney for the child who is the subject of a return petition ). Here, the submissions before the Supreme Court raised genuine issues of material fact with respect to both exceptions invoked by the father, warranting a hearing and some assessment of the child’s position.

 

              As for the grave risk exception, the father’s affidavit reflected that the child made prompt, detailed disclosures of extended sexual abuse experienced in Italy. According to that affidavit, the child also reported that abuse to the mother, who did nothing to intervene or prevent it and instead “forced” the child to continue sleeping in the same bed as the offending minor. As a result, the child has developed a fear of returning to the mother’s custody in Italy. Supreme Court was also provided with a State Police incident report, which reflected that the child made consistent allegations regarding the abuse about a week following his disclosure to the father while interviewed by a child advocate. The submissions further included confirmation of the Italian criminal proceedings against the mother and the boyfriend for not only their alleged failure to prevent the abuse but their facilitation thereof, and there was no information in the record regarding the current status of those proceedings. Accepting these serious allegations as true it was an abuse of discretion to summarily reject the father’s first exception.

 

            The Court observed that a “ ‘child’s views concerning the essential question of [his or her] return or retention may be conclusive, provided [the child] has ... attained an age and degree of maturity sufficient for [his or her] views to be taken into account’ ” The Hague Convention, applicable only to children under the age of 16, “does not set an age at which a child is automatically considered to be sufficiently mature”; it is instead accepted that maturity is a “fact-intensive and idiosyncratic ... inquiry” Although there is no established test for assessing maturity, indications of maturity may include “the child’s age ... [and] ability to express mixed feelings[ ] and ... plan past obstacles” (“[A] child’s ‘generalized desire’ to remain in the United States is ‘not necessarily sufficient to invoke the exception,’ ” but “ ‘particularized objections to returning to’ the former country of residence” should be considered.  The submissions before the Supreme Court again included the father’s affidavit attesting to the fact that the child repeatedly advocated for himself with regard to the subject abuse, seeking help from both of his parents even after the mother’s alleged failure to intervene. The affidavit also made clear the child’s particularized fear of returning to the mother’s custody given that failure and her alleged facilitation of the sexual abuse that he suffered. Also before the court was the transcript of a telephone call between the child and the mother, in which the child, then nearly 10½ years old, articulately opposed the mother’s efforts to secure his return, citing the mother’s “lies” as to why he is in New York. Accepting the foregoing submissions as true, the father raised a genuine issue of fact as to the child’s objection and degree of maturity, and it was therefore a further abuse of discretion to summarily dispense with the father’s second exception.

 

September 20, 2023

 

 

Appellate Division, First Department

 

 

Although the facts warranting a new hearing were  outside the record on appeal, the Appellate Division  took notice of the new facts to the extent they indicated that the record was no longer sufficient to determine the mother’s relocation petition

 

         In Matter of Emily F v Victor P., --- N.Y.S.3d ----, 2023 WL 5962329, 2023 N.Y. Slip Op. 04634 (1^st Dept.,2023) the Appellate Division declined to disturb Family Court’s discretionary determination, made after a hearing and an in camera examination of the child, to deny the mother’s petition to relocate with the child to North Carolina. However, as the attorney for the child argued on this appeal, the mother’s motion to this Court for a stay pending appeal (a motion this Court granted), raised legitimate concerns about the adequacy of representation by her assigned counsel at the fact-finding hearing on her relocation petition. In her affidavit in support of her stay motion, the mother attested that counsel failed to adequately present evidence of the financial necessity that supported her decision to relocate. On account of these omissions, as well as the passage of time and intervening events that occurred since the court’s it reversed the court’s denial of the mother’s petition and remanded for a new hearing to determine what is in the child’s best interests. Although the facts warranting a new hearing were  outside the record on appeal, given that changed circumstances have particular significance in child custody matters, it took notice of the new facts to the extent they indicated that the record was no longer sufficient to determine the mother’s relocation petition (see Matter of Michael B., 80 N.Y.2d 299, 317–318 (1992)).

 

 

Appellate Division, Second Department

 

           

Courts should normally exercise their discretion to grant  a request for interim counsel fees made by the non-monied spouse, in the absence of good cause articulated by the court in a written decision

 

            In Hutchinson v Hutchinson, 2023 WL 5943914 (2d Dept.,2023) the Appellate Division held, with regard to the Plaintiff’s renewed motion for interim counsel fees that  “courts should ... normally exercise their discretion to grant such a request made by the non-monied spouse, in the absence of good cause ... articulated by the court in a written decision” (Prichep v. Prichep, 52 A.D.3d at 65–66, 858 N.Y.S.2d 667).”  In support of her motion for leave to renew, the defendant submitted the required statement of net worth and documentary evidence of her income, which she had failed to provide in support of her prior motion. Although the defendant did not explain her failure to provide this evidence in support of her prior motion, the Supreme Court, should have either declined to hear that branch of her prior motion or should have denied it without prejudice to renew upon compliance with the applicable requirements (see 22 NYCRR 202.16[k][2], [5][ii]. Under the circumstances presented here, the court improvidently exercised its discretion in denying defendant’s motion for leave to renew her prior motion pursuant to Domestic Relations Law § 237 for an award of interim counsel fees. Moreover, taking into account all of the relevant circumstances, including the disparity in the parties’ respective incomes, the extent to which the plaintiff’s conduct has resulted in a delay of the proceedings, and other relief awarded to the defendant, an award of interim counsel fees to the defendant, as the nonmonied spouse, was warranted.

 

 

Appellate Divison, Third Department

 

 

Third Department holds that generally, joint legal custody is the preferred arrangement, unless the evidence demonstrates that the parties are unable to work together and communicate cooperatively.

 

            In Matter of Chad KK., v. Jennifer LL., --- N.Y.S.3d ----, 2023 WL 5962188, 2023 N.Y. Slip Op. 04620 (3d Dept.,2023) the parties shared joint legal custody of the children, with the mother having primary residential custody and the father having parenting time. Following a hearing Family Court found that there was a change in circumstances since the 2019 order, and further determined that the best interests of the children warranted a continuation of joint custody with,, an increase in the younger child’s parenting time with the father. The Appellate Division held, among other things, that generally, joint legal custody is the preferred arrangement, unless the evidence demonstrates that the parties are unable to work together and communicate cooperatively. The record reflected that the relationship between the parties had been relatively contentious since their divorce; however, although the two engaged in the occasional squabble, their exchanges did not evidence a level of acrimony that rendered the joint custody award unworkable.

 

 

 

In demonstrating a change in circumstances  to trigger a best interests analysis in a custody modification proceeding  an order entered on consent is entitled to less weight.

 

In Matter of Maranda WW., v. Michael XX., --- N.Y.S.3d ----, 2023 WL 5962196, 2023 N.Y. Slip Op. 04622 (3d Dept.,2023) the Appellate Division observed that  a party seeking to modify a prior order of visitation must first demonstrate a change in circumstances since the entry of such order so as to trigger an analysis as to whether modification would serve the best interests of the child. It noted that an order entered on consent, without a plenary hearing, is entitled to less weight.

 

September 13, 2023

 

 

Appellate Division, Second Department

 

 

Defendant who told the Court he intended to live-stream the proceedings, and on the adjourned date refused to respond to question by the court whether he was recording the proceedings, was properly held in default under 22 NYCRR 202.27.

 

            In Spata v Kelly, --- N.Y.S.3d ----, 2023 WL 5251670, 2023 N.Y. Slip Op. 04331(2d Dept.,2023) the defendant’s parental access was suspended, pending a mental health evaluation. When he informed the Supreme Court that he intended to live-stream the proceedings the court informed the defendant that the only recording of the proceedings would be made by the official court reporter. When the parties appeared for the hearing on June 29, 2021, the Supreme Court asked the defendant if he was recording the proceedings, and he refused to answer based on his constitutional right against self-incrimination. The defendant was directed to leave the courtroom, and the court ruled that he was in default pursuant to 22 NYCRR 202.27. In an order dated July 22, 2021, the court, inter alia, denied the defendant’s motion for parental access. The Appellate Division affirmed. It held that defendant had no right to record the proceedings, without proper authorization (see Civil Rights Law § 52; 22 NYCRR 29.1). Those restrictions did not violate the United States Constitution or the New York State Constitution. Since this case involved a civil proceeding, his constitutional right against self-incrimination was not violated.

 

 

 

Family Court

 

 

 

Family Court held that an 8-year-old can be a respondent in a  family offense proceeding. Article 8 of the Family Court Act does not dictate a minimum age for a respondent in a family offense proceeding

 

            In V.M., v. C.M., Slip Copy, 2023 WL 5763557 (Table), 2023 N.Y. Slip Op. 50942(U)  (Fam. Ct, 2023)  the Family offense petition alleged, inter alia, that the child G.B. engaged in inappropriate sexual behavior against the child L.M.  G. B. moved to dismiss the petition based on the fact that he was only 8 years old. He argued that due to a recent change in the law, an eight-year-old can no longer be prosecuted as a juvenile delinquent and therefore cannot be the subject of a family offense proceeding. Family Court held that the fact that criminal responsibility cannot be sustained against an 8-year-old has no bearing on a family offense proceeding in Family Court, which has exclusive jurisdiction where the respondent would not be criminally responsible by reason of age. Article 8 of the Family Court Act does not dictate a minimum age for a respondent in a family offense proceeding. The motion to dismiss the petition was denied.

 

 

September 6, 2023

 

An agreement that states that an obligation to maintain life insurance terminates upon the death of the insured is meaningless.

 

 In Matter of Edelen, 2023 WL 5598679 (2d Dept.,2023) the Appellate Division, held that an agreement that states that an obligation to maintain life insurance terminates upon the death of the insured—just when the policy proceeds become payable—is meaningless. Such would be contrary to the basic tenets of contract interpretation that ‘a court should seek an interpretation which does not render any term or phrase of a contract meaningless or superfluous.

 

CPLR 3101(d)(1)(i) requires a party to identify the expert witnesses the party expects to call at trial but does not require a response at any particular time or mandate that a party be precluded merely because of noncompliance

 

In Giovinazzo-Varela v Varela, --- N.Y.S.3d ----, 2023 WL 5598665 (Mem), 2023 N.Y. Slip Op. 04441 (2d Dept.,2023) the plaintiff served the defendant with discovery demands, including a request for expert witness disclosure (see CPLR 3101[d]). The defendant, in his response, did not state that he intended to retain an expert. More than one year later, the defendant advised the Supreme Court that he intended to retain a vocational expert. In July 2020, the defendant sent the plaintiff a “Notice of Expert and Demand to Submit to Examination,” which informed the plaintiff that he intended to call Daniel Wolstein as a vocational expert witness at trial. He also provided the plaintiff with Wolstein’s curriculum vitae. In March 2021, after the note of issue and certificate of readiness were filed, the defendant served the plaintiff with a draft copy of Wolstein’s report, dated September 21, 2020.  Supreme Court, inter alia, granted the plaintiff’s motion to preclude the defendant from offering the expert testimony of Wolstein and his report at trial. The Appellate Division reversed. It noted that  CPLR 3101(d)(1)(i) requires a party, upon request, to identify the expert witnesses the party expects to call at trial but does not require a response at any particular time or mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute. The defendant served his expert notice before a trial date was set, and thus it was not untimely. Further, the notice was not deficient. It identified the expert witness, indicated that he was a vocational expert, and included the expert’s qualifications. Although the notice did not include the expert’s opinion and grounds for that opinion, that information was in the draft report that was received by the plaintiff before the trial date was set (see CPLR 3101[d]). The defendant also complied with the requirements set forth in 22 NYCRR 202.16(g) by disclosing his expert witness shortly after the expert had been retained, and serving the expert report more than 60 days before trial (see 22 NYCRR 202.16[g][2]).

 

 

 

August 30, 2023

 

Father’s contentions concerning the Support Magistrate’s order were  unpreserved for appellate review, where the father failed to raise these contentions in his objections before the Family Court

 

            In Licitra v Licitra, 2023 WL 5419571 (2d Dep’t, 2023) after the Support Magistrate dismissed the father's petition for modification of the support order the father filed objections in which he listed the reasons provided by the Support Magistrate for dismissing the petition, without raising any arguments addressed to the Support Magistrate’s order. Family Court denied the father’s objections on the ground that they were not specific within the meaning of Family Court Act § 439(e). The Appellate Division observed that the father’s contentions concerning the Support Magistrate’s order were unpreserved for appellate review because he failed to raise these contentions in his objections before the Family Court. Since the father’s objections to the Support Magistrate’s order were not specific within the meaning of Family Court Act § 439(e), the court properly denied his objections on that ground.

 

 

Support  Order reversed where it contained language suggesting that the mother was advised of her right to seek counsel  but the transcript of the hearing contained  no proof that she was advised of this right or that she voluntarily and knowingly waived this right

 

 

            In Moor v Moor, 218 A.D.3d 772, 193 N.Y.S.3d 250, 2023 N.Y. Slip Op. 03918  (2d Dept.,2023) the father filed a petition seeking, inter alia, an award of child support from the mother. After the father appeared with counsel and the mother appeared pro se the Support Magistrate, inter alia, in effect, granted the father’s petition and directed the mother to pay child support. Although the order contained language suggesting that the mother was advised of her right to seek counsel as required by Family Court Act § 433, the transcript of the hearing contained no proof that the mother was advised of this right or that she voluntarily and knowingly waived this right and proceeded without counsel. The Appellate Division held that the Support Magistrate erred in failing to advise the mother that she had an absolute right to be represented by counsel at the hearing at her own expense and that she was entitled to an adjournment to retain the services of an attorney. The Support Magistrate also erred in proceeding with the hearing without an explicit waiver of the right to counsel from the mother as there was no word or act in the record upon which the Family Court could have concluded that the mother explicitly waived that right. It remitted the matter to the Family Court for a new hearing and determination.

Absent unusual circumstances an AFC cannot overrule the decision-making authority of

a parent, and unilaterally take an appeal in a Family Offense Proceeding where the parent who is an aggrieved party has not done so. 

 

            In Joey L.F., v. Jerid A.F., --- N.Y.S.3d ----, 218 A.D.3d 1297, 2023 WL 4837130, 2023 N.Y. Slip Op. 04046(4^th Dept., 2023) the petitioner filed a family offense petition on behalf of her son against the respondent. Respondent moved to dismiss the petition on the ground that it was facially insufficient. The Attorney for the Child (AFC) appealed from an order granting the motion. The Appellate Division held that under the circumstances of this case, the AFC lacked standing to bring an appeal on behalf of the subject child. It observed that generally speaking, the legislature has “demonstrated [its] preference for natural guardians,” such as petitioner, to represent their minor children in a proceeding. Given that preference, it held that an AFC cannot, in most Family Court Act Article 8 proceedings, unilaterally take an appeal where a parent or guardian who is an aggrieved party has not done so. In this case, the petitioner did not appeal even though it was her petition that was dismissed. It also noted that there was no evidence that the petitioner had “an interest adverse to the” subject child that would warrant termination of her role as guardian in the proceeding, thereby permitting the AFC to bring an appeal on the child’s behalf. To conclude that the AFC has standing to appeal where the petitioner has not done so would effectively force a parent—the individual who originated the proceeding on the subject child’s behalf—to litigate a position that they have abandoned. This would, in some cases, override a parent’s reasonable decision-making authority. Absent unusual circumstances not present here, an AFC cannot overrule the decision-making authority of a parent, and take an appeal where the parent has not done so. Because the AFC lacked standing here it dismissed the appeal.

August 23, 2023

 

 

A party seeking to vacate a default ordinarily must show a reasonable excuse for his or her default and a meritorious defense to the action or motion. In evaluating a proffered excuse, the court should take into account “the procedural history and particular facts of the case”.

 

 

            In Davis v Davis --- N.Y.S.3d ----, 2023 WL 5251144, 2023 N.Y. Slip Op. 04301 (2d Dept.,2023) the Appellate Division reversed an order which granted a default judgment of divorce. The parties married in 1984 and had two adult children. In December 2018, the plaintiff commenced this action for a divorce and later admitted that she was served with a summons with notice. The Appellate Division pointed out that pursuant to CPLR 5015(a)(1), a party seeking to vacate a default ordinarily must show a reasonable excuse for his or her default and a meritorious defense to the action or motion. In matrimonial actions, it applies a liberal policy with respect to vacating defaults. In evaluating a proffered excuse, the court should take into account “the procedural history and particular facts of the case”. It found that Supreme Court improvidently exercised its discretion in denying the defendant’s motion. After admitting that she was served with the summons with notice, the defendant voluntarily and actively participated in the divorce proceedings, including entering into a partial stipulation of settlement concerning issues of equitable distribution, up until her absences from the preliminary conference on October 4, 2019, and from the inquest on November 22, 2019. The defendant submitted affidavits explaining that she did not receive the notice of inquest because she was in Florida caring for a hospitalized family member for much of July 2019 through February 2020, as well as screen shots of text messages from July 2019, between her and the plaintiff, in which she advised the plaintiff that she would be traveling to Florida “over the coming months” to care for her family member. Additionally, the record did  not contain proof that the defendant was notified of any of the court dates in question in any manner other than by mail service at her New York address, nor does the record contain a return receipt for the certified mailing of the notice of inquest. Moreover, upon returning to New York in February 2020, timely retained counsel and moved to vacate the judgment of divorce. The defendant proffered a reasonable excuse for her default. She  also established a potentially meritorious defense, since despite having comparable finances, among other things, the Supreme Court did not equalize the parties’ retirement accounts, distributed the defendant’s pension but not the plaintiff’s, and ordered the defendant to pay the plaintiff’s counsel fees.

 

           

 

Only competent, material and relevant evidence may be admitted in a fact-finding hearing. The evidence presented in support of the Family Offense petition, including the father’s testimony regarding statements made to him by his children, and a report from Child Protective Services, consisted primarily of inadmissible hearsay. He therefore failed to establish the allegations in the petition by competent evidence.

 

            In Wedra v Greco, --- N.Y.S.3d ----, 2023 WL 5251467, 2023 N.Y. Slip Op. 04319(2d Dept.,2023) the Appellate Division observed that the determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court’s determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record (see Matter of Walsh v. Desroches, 118 A.D.3d at 814, 987 N.Y.S.2d 231; Matter of Harry v. Harry, 115 A.D.3d 858, 858, 982 N.Y.S.2d 379). ‘Only competent, material and relevant evidence may be admitted in a fact-finding hearing’ ” ( Family Ct Act § 834). Here, the evidence presented in support of the petition, including the father’s testimony regarding statements made to him by his children, and a report from Child Protective Services, consisted primarily of inadmissible hearsay. The father, therefore, failed to establish the allegations in the petition by competent evidence. Accordingly, the Family Court properly, in effect, denied the father’s family offense petition and dismissed that proceeding.

 

 

 

Seventeen year old Respondent in Family Offense Proceeding lacked the capacity to appear before the Family Court, rendering the proceeding void. As an infant, he could only appear by a parent or guardian as set forth in CPLR 1201.

           

            In Cohen v Escabar, .--- N.Y.S.3d ----, 2023 WL 5251525, 2023 N.Y. Slip Op. 04313 (2d Dept.,2023) Jamie Cohen commenced this family offense proceeding against her ex-boyfriend, Louis Escabar, in 2021. At the time, Cohen was 16 years old and Escabar was 17 years old. Escabar did not appear for the hearing, but his attorney participated in his absence. The court found that Cohen had established that Escabar committed a family offense and issued an order of protection, from which Escabar appeals. The Appellate Division held that the order of protection was not entered upon Escabar’s default. Although Escabar failed to appear at the hearing, his counsel appeared on his behalf and participated in the hearing. It also held that Escabar lacked the capacity to appear before the Family Court, rendering the proceeding void. and reversed the order.  It noted that a natural person’s status as an infant, could disqualify that individual from seeking relief in court. An “infant” is “a person who has not attained the age of eighteen years” (CPLR 105[j]; see Family Ct Act § 119[c]). “Unless the court appoints a guardian ad litem, an infant shall appear by the guardian of his [or her] property or, if there is no such guardian, by a parent having legal custody, or, if there is no such parent, by another person or agency having legal custody, or, if the infant is married, by an adult spouse residing with the infant” (CPLR 1201).  Escabar, who was 17 years old when Cohen commenced this proceeding, was an infant; Family Ct Act § 119[c]). As an infant, he could only appear by a parent or guardian as set forth in CPLR 1201, and he lacked the capacity to appear on his own behalf . Neither the presence of Escabar’s mother in court, nor the assignment of counsel, was sufficient to satisfy CPLR 1201. Although Escabar’s mother was present at a prehearing court date, the court expressly prohibited her from appearing on Escabar’s behalf. Counsel’s representation of Escabar contravened CPLR 321 and 1201, and it therefore had “no legal effect”.

 

 

 

 

Family Court follows Rule of First and Third Departments that the ICPC “does not apply” to out-of-state noncustodial parents. It held that  Court can issue a Temporary (or final) Custody Order providing custody to a relative who does not reside in New York without invoking the provisions of the Interstate Compact on the Placement of Children where the child has not been placed in foster care.

           

            In Peggy RR., v. JenellL RR.,--- N.Y.S.3d ----, 2023 WL 5282677, 2023 N.Y. Slip Op. 23252 (Family Court,2023) the question was whether the Court can issue a Temporary (or final) Custody Order providing custody to a relative who does not reside in the State of New York without invoking the provisions of the Interstate Compact on the Placement of Children where the child has not been placed in foster care? The Court answered the question in the affirmative. The facts were stated by the Court as follows:  Petitioner (maternal grandmother) filed a petition under Article 6 of the Family Court Act prior to the initiation of any application or petition being filed under Article 10 of the Family Court Act; the subject child was born in, and has since resided in the State of New York from the time of her birth; at Peggy RR. resides and is otherwise domiciled in the State of West Virginia; and that the subject child has never been placed in foster care or in the custody of the Department of Social Services or any other agency; and  that the Department of Social Services attempted to submit a referral to the New York State Office of Children and Family Services - ICPC office to initiate a home study under the ICPC, and the NYS OCFS - ICPC office refused to accept the referral citing their position that the circumstances and procedural history of this case do not invoke the provisions of the ICPC. The Court noted that D.L. v. S.B., 39 N.Y.3d 81, 86, 181 N.Y.S.3d 154, (2022) the Court of Appeals observed that the Appellate Division Departments have disagreed regarding the applicability of the ICPC to noncustodial parents who reside outside New York. The Second Department has repeatedly applied the ICPC to out-of-state noncustodial parents, holding that where the custody of a child who is under the supervision of the Commissioner of Social Service is transferred to the custody of a parent or relative in another state, the provisions of the ICPC apply” (Matter of Alexus M. v. Jenelle F., 91 A.D.3d 648 [2d Dept. 2012]). By contrast, the First Department has expressly declined to follow the Second Department’s interpretation of the ICPC and, instead, has held that the ICPC “does not apply” to out-of-state noncustodial parents, reasoning that the plain language of the ICPC limits its application to placements in foster care or adoptive settings (Matter of Emmanuel B. [Lynette J.], 175 A.D.3d 49, 52,[2019]. The Third Department recently endorsed the First Department’s approach, albeit in dicta (see Matter of David Q. v. Schoharie County Dept. of Social Servs., 199 A.D.3d 1179, 1181 [3d Dept. 2021]).The Court found that the case at bar was not one where there has been a foster care placement, and as a result, the provisions of the Interstate Compact on the Placement of Children are not invoked.

 

 

 

August 16, 2023

 

 

            Grandparents established the existence of “other like extraordinary circumstances” so as to afford them standing where, among other things, child lived with the grandparents for his entire life, expressed a strong desire to continue residing with them; parent suffered from severe substance abuse and were unable to care for the child

 

            In Matter of Tuttle v Worthington,  --- N.Y.S.3d ----, 2023 WL 5160120, 2023 N.Y. Slip Op. 04282 (4^th Dept., 2023)  Petitioner mother commenced a proceeding for modification of a prior order, entered more than three years earlier, that awarded joint custody of the subject child to her, the child’s father, and respondents Kristine Worthington and Donald Worthington, i.e., the child’s paternal grandparents, with “primary placement” of the child with the grandparents and “secondary placement” with the mother and with the father. In her amended petition for a change in custody, the mother sought modification of the child’s placement with primary placement of the child awarded to the mother. 

Following a hearing, Family Court determined that the mother established a change in circumstances since entry of the prior order and that the grandparents failed to meet their burden of establishing extraordinary circumstances, without which they lacked standing to seek custody. The court determined that there was “no extended disruption of custody” because the mother had joint legal custody of the child since entry of the prior order and maintained consistent contact with him as well as secondary placement. The court further determined that there was no “abandonment or prolonged separation,” and, thus, no extraordinary circumstances. The Appellate Division held that  those are not the only grounds upon which nonparents may establish standing to seek custody. The grandparents established the existence of “other like extraordinary circumstances” so as to afford them standing (Bennett, 40 N.Y.2d at 544, 387 N.Y.S.2d 821, 356 N.E.2d 277). It was undisputed that the child, who was eight years old at the time of the hearing, had lived with the grandparents for his entire life in the only home he has ever known; the child expressed a strong desire to continue residing with his grandparents and the AFC adhered to that position on appeal; the mother and the father both suffered from severe substance abuse problems for years and were unable to care for the child on their own; the mother failed to contact the child for a period of 18 months before resuming visitation in January 2018; the child’s half-sister also resided with the grandparents and the child developed a sibling relationship with her; and the grandparents have taken care of the child for most of his life and provided him with stability. Under the circumstances, it concluded that, even if the prolonged separation alone is entitled to little significance here, the combination of that factor along with others present on this record sufficiently established the existence of extraordinary circumstances, and that the court’s contrary determination is not supported by a sound and substantial basis in the record. It  reversed and remitted  the matter for a new hearing.

 

 

 

Father’s appeal had to be dismissed. Although he participated in the fact-finding hearing and his status as an intervenor was not contested, he was still a nonrespondent parent who has a limited statutory role and narrow rights under Family Ct Act § 1035(d) which applied on appeal.

           

In  Matter of Rosalynne AA. --- N.Y.S.3d ----, 2023 WL 5108737, 2023 N.Y. Slip Op. 04242 (3d Dept.,2023) after the mother and the father separated, the mother relocated from Florida to New York with the children, and they resided in a single-wide trailer with respondent Thomas BB. ( boyfriend), with whom the mother had a relationship. Following a disclosure by the younger child that the boyfriend had inserted his fingers into her vagina, petitioner commenced proceeding No. 2 alleging neglect and sexual abuse by the boyfriend. Petitioner also commenced proceeding No. 1 alleging neglect by the mother based upon the allegations in proceeding No. 2, as well as allegations pertaining to the conditions of the home and the hygiene of the children. With the mother’s consent, the children were then temporarily placed in the care of the father. A fact-finding hearing ensued, at the conclusion of which petitioner moved to conform the pleadings to the proof by adding an allegation of educational neglect. In a July 2019 corrected order, Family Court granted petitioner’s motion and found, in proceeding No. 1, that the mother had neglected the children. The court dismissed the entire petition in proceeding No. 2. In a December 2019 order entered after a dispositional hearing in proceeding No. 1, the court placed custody of the children with the father for a period of one year and permitted him to relocate the children to Florida. Petitioner, the mother and the father separately appealed  from the July 2019 corrected order. The mother also appealed from the December 2019 order. The Appellate Division held as an initial matter, that the father’s appeal from the July 2019 corrected order had to be dismissed. Although the father participated in the fact-finding hearing and his status as an intervenor was not contested, he was still a nonrespondent parent. As a nonrespondent parent, the father has a limited statutory role and narrow rights under Family Ct Act § 1035(d) to: (1) pursue temporary custody of his children during fact-finding, and (2) seek permanent custody during the dispositional phase. In view of this limited role, which applied on appeal, the father’s arguments directed toward the dismissal of the petition in proceeding No. 2 and the finding of neglect against the mother would  not be considered. Furthermore, given that the father appealed only from the July 2019 corrected order and was awarded temporary custody of the children prior to the fact-finding hearing, he was not aggrieved thereby .

 

 

 

Supreme Court erred in granting, without a hearing, defendant’s cross-motion to enforce the terms of the modification agreement where irregularities on the face of the modification agreement itself called into doubt its authenticity.

 

             In Del Vecchio v Del Vecchio,  --- N.Y.S.3d ----, 2023 WL 5064229, 2023 N.Y. Slip Op. 04189 (2d Dept.,2023) the parties were married in 1998 and had one child together, who  is now emancipated. The parties were divorced pursuant to a judgment dated February 22, 2013. The judgment of divorce incorporated, but did not merge, a separation agreement dated November 28, 2012. The separation agreement  provided, among other things, that it could not be orally modified, and that “[only a statement in writing, signed and acknowledged with the same formality as this Agreement,” would modify the agreement. In August 2019, the plaintiff moved to, inter alia, hold the defendant in contempt due to his failure to pay maintenance and failure to cooperate in the sale of the marital residence, for an award of $52,000 in maintenance arrears from December 2012 to November 2017, to direct the defendant to immediately list the marital residence for sale, to direct the defendant to immediately return to the plaintiff certain items of personal property that remained in the marital residence, and for an award of counsel fees. The defendant cross-moved, inter alia, to enforce the terms of a written modification agreement dated February 27, 2013. The purported modification agreement proffered by the defendant read as follows: “This letter is an official document to guarantee [the plaintiff] and [the defendant] equal sharing of the profit of the home upon its final sale. Furthermore, it also guarantees that upon [the plaintiff’s] residing in the residence of a significant other, [the defendant] is no longer obligated to pay [the plaintiff] the court-ordered $900 per month for maintenance.” In an affidavit in support of his cross-motion, the defendant attested that the modification agreement was intended to memorialize the parties’ oral agreement to postpone the sale of the former marital residence until the parties’ child completed high school in June 2015, and to terminate the defendant’s maintenance obligation, in exchange for the plaintiff receiving a greater equitable distribution award from the parties’ equal division of the proceeds from the sale of the marital residence due to the payments that the defendant had continued to make on the property’s mortgage. The plaintiff submitted a reply affidavit in which she conceded that she had orally agreed that the defendant could “postpone the start” of his maintenance payments until after their child graduated high school, but after the child’s graduation occurred in June 2015, the defendant never remitted any payments. The plaintiff denied that she had agreed to any other modifications, denied that she had executed the alleged written modification agreement, and offered to produce witnesses to testify that her purported notarized signature on the written modification agreement was forged. 

            The Supreme Court denied the plaintiff’s motion and granted the defendant’s cross-motion to the extent of, inter alia, finding that the modification agreement was valid and enforceable. The Appellate Division held that  Supreme Court erred in granting, without a hearing, the branch of the defendant’s cross-motion which was to enforce the terms of the modification agreement and in denying, without a hearing, the branch of the plaintiff’s motion which was for an award of maintenance arrears. It held that while something more than a bald assertion of forgery is required to create an issue of fact contesting the authenticity of a signature here, irregularities on the face of the modification agreement itself called into doubt its authenticity. The parties’ signatures, which were sworn before a notary but not acknowledged, reflected that the plaintiff allegedly signed the modification agreement on March 29, 2011, two years before the date of the agreement, and the defendant allegedly signed the agreement on February 4, 2014, three years after the plaintiff and one year after the date of the agreement. Moreover, the modification agreement was not acknowledged, as required by the plain terms of the parties’ separation agreement. Under such circumstances, it was error to conclude that no triable issue of fact existed as to the validity and enforceability of the written modification agreement.

 

 

 

 

 

 

Where  neither the petition nor the supporting depositions provided sworn, nonhearsay allegations as to a physical injury sustained by the complainant, that count was jurisdictionally defective and had to be dismissed for failure to comply with Family Ct Act § 311.2[3]).

 

            In the Matter of Yacere D. --- N.Y.S.3d ----, 2023 WL 4482188, 2023 N.Y. Slip Op. 03781(2d Dept.,2023) a juvenile delinquency proceeding Family Court, the  Appellate Division held that count 5 of the petition, which alleged that he committed an act which, if committed by an adult, would have constituted the crime of assault in the third degree, was jurisdictionally defective. For a juvenile delinquency petition, or a count thereof, to be sufficient on its face, the factual part of the petition or of any supporting depositions must set forth sworn, nonhearsay allegations sufficient to establish, if true, every element of each crime charged and the alleged delinquent’s commission thereof” (Family Ct Act § 311.2[3]). Such allegations must be set forth in the petition or the supporting depositions (see Family Ct Act § 311.2[3]). “The failure to comply with this requirement constitutes a nonwaivable jurisdictional defect that deprives the court of subject matter jurisdiction to entertain the petition or count” . Here, neither the petition nor the supporting depositions provided sworn, nonhearsay allegations as to a physical injury sustained by the complainant named in count 5. Accordingly, that count was jurisdictionally defective and had to be dismissed.

 

                       

 

Allocution in juvenile delinquency proceeding  was fatally defective because Family Court failed to comply with Family Ct Act § 321.3(1) where neither respondent nor his mother were informed of “the exact nature of his placement outside of the home or its possible duration

 

In Matter of Tashawn MM.,--- N.Y.S.3d ----, 2023 WL 4353583, 2023 N.Y. Slip Op. 03745 (3d Dept.,2023) a juvenile delinquency proceeding was commenced against respondent in March 2022, alleging that respondent had committed acts in November 2021 that, if committed by an adult, would constitute the crimes of burglary in the second degree and criminal possession of stolen property in the third degree. Thereafter, in satisfaction of the petition, respondent admitted to acts which, if committed by an adult, would constitute the lesser offense of criminal possession of stolen property in the fourth degree. Family Court issued an order finding that respondent had engaged in that conduct, as well as an order transferring the proceeding to Tompkins County for disposition. Following a dispositional hearing in Tompkins County, Family Court placed respondent in the custody of the Office of Children and Family Services for a period of 12 months. The Appellate Division reversed. It found that the petition was jurisdictionally adequate to support respondent’s admission to acts constituting the lesser offense of criminal possession of stolen property in the fourth degree. However, as petitioner conceded, the allocution in which respondent admitted to those acts was fatally defective because Family Court failed to comply with the requirements of Family Ct Act § 321.3(1). At the time of his admission, Family Court commented on some possible dispositions including being “placed outside of [his] home ... for a period of time.” Neither respondent nor his mother were informed of “the exact nature of his placement outside of the home or its possible duration” (Family Ct Act § 321.3[1][c]). Inasmuch as the provisions of Family Ct Act § 321.3(1) are mandatory and cannot be waived, the order had to  be reversed.

 

 

 

August 9, 2023

 

 

 

The Parties should be given an opportunity to present any arguments concerning an  application to withdraw a Neglect Petition, such as the effect upon a child’s welfare, whether prejudice should attach to the discontinuance or whether another party should be permitted to commence a neglect proceeding.

 

            In Matter of Lauren X.,,--- N.Y.S.3d ----, 2023 WL 4353635, 2023 N.Y. Slip Op. 03732 (3d Dept.,2023) in May 2021, petitioner a neglect petition alleging, among other things, that the child had been completely absent from school since the end of March 2021. During the pendency of the proceedings, the petitioner interviewed the child in August 2021. Then, on December 6, 2021, the petitioner transmitted a letter by email to Family Court, counsel for the respondent, counsel for the father and the attorney for the child (AFC) requesting to withdraw the petition without prejudice and to cancel the fact-finding hearing scheduled for December 14, 2021. That same day, the court issued an order granting the petitioner’s request and dismissing the neglect petition. The AFC appealed. The Appellate Division observed that whether an application to discontinue an action pursuant to CPLR 3217(b) should be granted lies within the sound exercise of the court’s discretion, and such should be entered upon terms and conditions, as the court deems proper”. It held that Family Court erred in granting the petitioner’s application to dismiss the neglect petition without allowing any time for objections to be raised. Ordinarily, a party cannot be compelled to litigate and, absent special circumstances, discontinuance should be granted” (Tucker v. Tucker, 55 N.Y.2d 378, 383,[1982]). However, one should be given an opportunity to present any such special circumstances or any other arguments concerning the application, such as the effect upon a subject child’s welfare, whether prejudice should attach to the discontinuance or whether another party should be permitted, in the court’s discretion, to commence a neglect proceeding (see Family Ct Act § 1032[b]). Because Family Court dismissed the petition without allowing the parties, including the father as a nonrespondent parent, to present any arguments regarding the petitioner’s application for a discontinuance, it remitted the matter to allow them the opportunity to do so.

 

 

 

 

 

 

 

 

Family Court may adjourn a fact-finding hearing for good cause shown on its own motion, and such determination is a matter resting within the court’s sound discretion

 

            In Matter of Nina TT, --- N.Y.S.3d ----, 2023 WL 4353601, 2023 N.Y. Slip Op. 03737(3d Dept.,2023) the Appellate Division affirmed an order which granted petitioner’s application to adjudicate the subject child to be abandoned, and terminated respondent’s parental rights. It rejected the Respondents argument that  that, even though he did not request an adjournment, Family Court abused its discretion in failing to adjourn the fact-finding hearing on its own initiative to allow him to testify. It noted that Family Court may adjourn a fact-finding hearing for good cause shown on its own motion,” and such determination is a matter resting within the court’s sound discretion (Family Ct Act § 626[a]). The right to be present is not absolute and must be balanced with the child’s right to a prompt and permanent adjudication. Here, respondent failed to appear at the continued fact-finding hearing that had been scheduled for over a month, despite speaking with his counsel the morning of the hearing and advising her that he would be in attendance. Although he also told her that he was attending a funeral that morning, he did not request an adjournment or raise such a claim at the dispositional hearing that he later attended. The continuation of the fact-finding hearing was pursuant to his request after he withdrew his intention to sign prepared conditional judicial surrender documents. In scheduling the continuation, Family Court made it clear that the matter would proceed in his absence and reminded him of the same two days before the hearing. More importantly, the child had been in foster care since before her first birthday and remained for over three years with a family that desired to adopt her. Respondent had not had contact with the child since November 2018 and the abandonment proceeding continued for nine months, where respondent failed to appear on two occasions and failed to contact his assigned counsel before a third appearance resulting in an adjournment.

 

 

 

Failure to advise Respondent of right to be present required reversal of delinquency adjudication. Respondents in juvenile delinquency proceedings have a constitutional and statutory right to be present at all material stages of court proceedings, including fact-finding hearings

 

 

            In Matter of Timar P.,  --- N.Y.S.3d ----, 217 A.D.3d 1591, 2023 WL 4284925, 2023 N.Y. Slip Op. 03654 (4^th Dept.,2023) a juvenile delinquency proceeding, the Appellate Division agreed with the Respondent that the court violated his constitutional and statutory right to be present at the fact-finding hearing. It reversed the order and remited the matter to Family Court for further proceedings on the petition. Respondents in juvenile delinquency proceedings have a constitutional and statutory right to be present at all material stages of court proceedings, including fact-finding hearings (see US Const 6th Amend; NY Const, art I, § 6; Family Ct Act § 341.2 [1])). Respondents may, however, waive the right to be present at such proceedings. In order to effect a voluntary, knowing and intelligent waiver, the respondent must, at a minimum, be informed in some manner of the nature of the right to be present at the fact-finding hearing and the consequences of failing to appear’ for that hearing. Here, the court did not advise respondent that he had a right to be present at the fact-finding hearing and that the consequence of his failure to appear would be that the fact-finding hearing would proceed in his absence. It therefore concluded on the record that there was no voluntary, knowing, and intelligent waiver of respondent’s right to be present at the hearing.