Recent Decisions and Legislation November 1, 2019

Appellate Division, Second Department

Forensic Report property admitted in custody case pursuant to 22 NYCRR 202.16(g)

            Comment: The Court of Appeals has held that forensic reports are not admissible in custody cases unless they are admitted pursuant to stipulation or upon consent of the parties. Kesseler v. Kesseler, 10 N.Y.2d 445, 225 N.Y.S.2d 1, 180 N.E.2d 402 (1962). However, 22 NYCRR 202.16(g)(2) provides that in the discretion of the court, written expert reports may be used to substitute for direct testimony at the trial. The reports must be submitted by the expert under oath, and the expert must be present and available for cross-examination.  To be admissible the forensic report can not rely upon information other than that upon which an expert may properly base an opinion. see Jemmott v. Lazofsky, 5 A.D.3d 558, 772 N.Y.S.2d 840; Wagman v. Bradshaw, 292 A.D.2d 84, 86–87, 739 N.Y.S.2d 421).Matter of D'Esposito v Kepler, 14 AD3d 509, 788 N.Y.S.2d 169 (A.D. 2 Dept.2005)

            In Matter of Raymond v Raymond, 174 A.D.3d 625, 107 N.Y.S.3d 433, 2019 N.Y. Slip Op. 05546  (2d Dept., 2019) the mother filed a petition seeking sole custody of the parties’ only child, who resided with her. The father initially was awarded parental access every weekend. He subsequently filed a petition seeking increased parental access. Family Court granted the mother’s petition and denied the father’s petition. The Appellate Division agreed  with the Family Court’s determination to  admit the forensic report into evidence. The parties received access to the report well in advance of the scheduled hearing, the forensic evaluator testified and was cross-examined by the parties at the hearing, the parties had  the opportunity to rebut the forensic evaluator’s findings, and the conclusions in the report were based primarily on the forensic evaluator’s firsthand interviews rather than on hearsay statements made by nontestifying declarants.

Appellate Divison holds that test generally applied for setting combined parental income cap is whether child is receiving enough to meet his or her actual needs and the amount required to live an appropriate lifestyle

In Pandis v Lapas, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 5057564, 2019 N.Y. Slip Op. 07267(2d Dept.,2019) the parties were married in 1992. There were  two children of the marriage, S.P., born in 1999, and N.P., born in 2005. The plaintiff commenced this action for divorce on January 9, 2012. Supreme Court awarded the defendant sole custody of the children, and declined to direct any parental access between the plaintiff and the children. In terms of child support, the court set the combined parental income cap at $250,000. The court directed the plaintiff to pay child support of $3,593.75 per month, which was 69% of the basic child support for the two children. The court also directed the plaintiff to pay 69% of the children=s add‑on expenses, including private school tuition and college tuition.  The Appellate Division held, among other things, that Supreme Court did not err in setting the combined parental income cap for child support purposes at $250,000.  Where Athe combined parental income exceeds the [statutory cap], the court shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in [Domestic Relations Law ' 240(1Bb)(f)] and/or the child support percentage@ (Domestic Relations Law ' 240[1Bb][c][3]. The test generally applied is whether the child is receiving enough to meet his or her >actual needs and the amount required ... to live an appropriate lifestyle= @

Party must demonstrate Aexigent or compelling circumstances@ supporting request for an adjournment to obtain counsel at late stage in the hearing

            In Matter of Eckstein v Young, 2019 WL 5057835 (2d Dept., 2019) the Appellate Division affirmed an order which granted the mother custody and permission to relocate to Connecticut. The Appellate Division, inter alia,  rejected the fathers argument that he was denied the right to counsel. The right to be represented by counsel of one=s own choosing is qualified in the sense that a party may not employ such right as a means to delay judicial proceedings. Absent exigent or compelling circumstances, a court may, in the exercise of its discretion, deny a party=s request to substitute counsel made on the eve of or during trial if the party has been accorded a reasonable opportunity to retain counsel of his [or her] own choosing before that time. Family Court providently exercised its discretion in denying the father=s request for an adjournment to obtain new counsel When the father requested this adjournment, the hearing had been ongoing for three years; the father had finished presenting his case, including testifying on his own behalf and calling two witnesses, and the mother had completed most of her case, including testifying on her own behalf on six dates and calling two witnesses. The father failed to demonstrate that there were Aexigent or compelling circumstances@ supporting his request for an adjournment at this late stage in the hearing, and given that the father was represented for the first several years of the proceedings, there is no indication that he lacked Aa reasonable opportunity to retain counsel@ before the date on which he requested the adjournment.

Mothers willful interference with fathers right to parental access] so inconsistent with the best interests of the child as to, warrant custody award to father, despite forensic evaluator recommending custody to mother

In Matter of Nieves v Nieves, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 5057657, 2019 N.Y. Slip Op. 07261 (2d Dept.,2019) Family Court, denied the mother=s petition for sole legal and physical custody of the parties= child and granted the father=s petition for sole legal and physical custody of the child. The Appellate Division affirmed.  In September 2016, a court‑appointed forensic evaluator prepared a forensic evaluation, noting extensive evidence that the mother and the stepfather had engaged in behavior intended to alienate the child from the father. Despite this evidence, as well as other concerns regarding the mother=s parenting, the forensic evaluator recommended against awarding custody to the father on the ground that it would be Adevastat[ing]@ to the child. Family Court concluded that despite the forensic evaluator=s recommendation, subsequent events warranted awarding sole custody to the father on the ground, among others, that he was better able to foster the child=s relationship with the noncustodial parent. The Appellate Division observed that >[w]illful interference with a noncustodial parent=s right to [parental access] is so inconsistent with the best interests of the child[ ] as to, per se, raise a strong probability that the offending party is unfit to act as a custodial parent=. The record was replete with evidence of the efforts of the mother and the stepfather to thwart the father=s parental access and alienate the child from the father. The mother and the stepfather appeared to be Apunish[ing the child] for having a relationship with [him]@ by, inter alia, forcing the child to take telephone and video calls with the father outdoors, even in inclement weather, taking a tablet that had been provided by the father to facilitate the video calls and that the stepfather claimed was Agarbage,@ and confiscating gifts from the father. The mother and the stepfather also repeatedly refused to cooperate with travel plans, and the father, among other things, had to seek a writ of habeas corpus to bring the child to the airport for a planned visit. Moreover, the mother and the stepfather disparaged the father and his family to the child and caused the child to worry that the mother would not permit him to continue a relationship with the father. This conduct was so inconsistent with the child=s best interests as to warrant awarding sole legal and physical custody to the father, notwithstanding the fact that the mother had been the primary custodian. Further, as the court observed, at the time the forensic evaluator made his recommendation that a change of custody would be detrimental to the child, the relationship between the father and the child was Aextremely tenuous,@ whereas, due to Athe extended visits,@ they subsequently developed a Asolid relationship.@

Recent Decisions and Legislation October 16, 2019

Appellate Division, Second Department

In 9-year, marriage 42-year-old wife, incapable of maintaining employment because of symptoms experienced as result of multiple sclerosis, awarded maintenance until age 67

            In Murphy v Murphy, --- N.Y.S.3d ----, 2019 WL 4656304, 2019 N.Y. Slip Op. 06780 (2d Dept.,2019) the parties were married on September 18, 2004, and had no children together. Prior to the marriage, the plaintiff was diagnosed with multiple sclerosis. On March 19, 2013, the plaintiff commenced the action for a divorce. The parties entered into a stipulation in which they resolved, inter alia, the issue of equitable distribution. At the time of trial, the plaintiff was 42 years old and the defendant was 47 years old. After the trial, the court determined, inter alia, that the plaintiff was incapable of maintaining employment because of the symptoms she experienced as a result of multiple sclerosis, and awarded the plaintiff maintenance of $10,760 per month commencing June 1, 2016, and terminating the first of the month after the plaintiff turns 67 years old. The Appellate Division affirmed. It was undisputed that the plaintiff was diagnosed with multiple sclerosis, which is a chronic and incurable autoimmune disease, as well as another autoimmune disorder, Hassimoto’s thyroiditis. At trial, the plaintiff’s evidence demonstrated that she experienced numerous symptoms as a result of multiple sclerosis and the treatment that she received for this disease, and that these symptoms interfered with her ability to work. The fact that the plaintiff wrote and self-published a book during the marriage, which took her 10 years to complete and for which she earned no income, did not warrant a different result. However, the Supreme Court should have directed that, in the event that either party dies or the plaintiff remarries during the period when the defendant is obligated to pay maintenance, that obligation terminates (see Domestic Relations Law § 236[B][1][a]).

Custody order reversed where attorney for the child failed to advise the Family Court of, much less advocate for, the position of the then 10–year–old child

            In Matter of David v LoPresti, --- N.Y.S.3d ----, 2019 WL 4849301, 2019 N.Y. Slip Op. 07066 (2d Dept.,2019) the mother and the father were divorced in 2015 and had one child, born in 2008. Pursuant to a stipulation the parties agreed to joint legal custody of the child with the mother having primary physical custody. In 2018, the mother moved to modify the stipulation so as to allow her to temporarily relocate with the child from Queens, New York, to New Orleans, Louisiana, for a period of two years, while she completed a fellowship program at Tulane University School of Medicine. Since the mother’s fellowship commenced prior to the hearing on the petition, she was constrained to move to Louisiana without the child, and the child stayed with the father in New York. Following the hearing, the Family Court, in effect, denied the mother’s petition and awarded physical custody of the child to the father and parental access to the mother. The Appellate Division reversed and remitted for a new hearing. It found that the record was insufficient to allow it to make a fully informed determination as to whether relocation was in the child’s best interests. Throughout the course of the proceedings on the petition, the attorney for the child failed to advise the Family Court of, much less advocate for, the position of the then 10–year–old child. The Rules of the Chief Judge (22 NYCRR 7.2[d]) require that, except in certain proceedings not relevant here, the attorney for the child “zealously advocate the child’s position. The Family [Court] Act identifies, as one of the primary obligations of the attorney for the child, helping the child articulate his or her position to the court” (Matter of Mark T. v. Joyanna U., 64 A.D.3d 1092, 1093, 882 N.Y.S.2d 773; see Family Ct Act § 241). Moreover, despite the fact that it was not made aware of the child’s position through the attorney for the child, the court did not meet in camera with the child to aid it in determining her best interests. Under the circumstances of this case, including that the mother was the child’s primary caregiver since birth and that the relocation was temporary, the denial of the petition absent any indication of the child’s preferences was not supported by a sound and substantial basis in the record, and the record was insufficient to enable the Court to make its own determination of the petition. Additionally, the mother was improperly prevented by the Court Attorney Referee from presenting evidence on her petition relevant to, inter alia, the mother’s reasons for seeking the move and the impact the move would have on the child economically and educationally.

            The Appellate Division also found that the mother’s petition was for permission to relocate temporarily, and the father withdrew his cross petition for physical custody. Thus, there was no request pending before the court for a permanent change of custody, nor was there a showing that such a permanent change of custody would be in the child’s best interests.

Appellate Divison rejects mother’s argument that the Family Court should not have limited her ability to cancel a scheduled visit to instances of “substantial medical reason involving the child.”

            In Matter of Liriano v Hotaki, --- N.Y.S.3d ----, 2019 WL 4849282, 2019 N.Y. Slip Op. 07071  (2d Dept.,2019) the Family Court denied in part the mothers petition to modify the custody order so as to require that the father’s parental access with the child be supervised and by conditioning the father’s right to parental access on his participation in therapy. The court also directed that the mother was “not to cancel the visit except for substantial medical reason involving the child.” The Appellate Division affirmed. It, among other things, rejected the mother’s argument that the Family Court should not have limited her ability to cancel a scheduled visit to instances of “substantial medical reason involving the child.” The Appellate Division observed that this is a fairly standard limitation (see Parenting Plan, ¶ 2.12, available at www.nycourts.gov/forms/matrimonial/ParentingPlanForm.pdf [last accessed September 12, 2019]). It held that  the court’s determination that it was in the child’s best interests to limit the mother’s ability to cancel scheduled visits to instances of “substantial medical reason involving the child” was supported by a sound and substantial basis in the record (cf. Matter of Michael R. v. Aliesha H., 155 A.D.3d 1042, 1044, 66 N.Y.S.3d 39).

Appellate Divison holds it is an improvident exercise of discretion to direct that school, religious, or extracurricular activities of the children are always to take precedence over father’s parental access

            In Matter of Cuccia-Terranova v. Terranova, 174 A.D.3d 528, 107 N.Y.S.3d 28, 2019 N.Y. Slip Op. 05401 (2d Dept., 2019) the Appellate Division held that under the circumstances of this case, it was an improvident exercise of discretion to direct that the school, religious, or extracurricular activities of the children are always to take precedence over the father’s parental access, particularly since the mother was  permitted to unilaterally determine the children’s non-school activities without prior consultation with the father, and she had asserted that the children were so busy that establishing a fixed schedule would be difficult. In this context, the provision giving primacy to other activities could result in an undue curtailment of the father’s parental access. Similarly, it was an improvident exercise of discretion to preclude make-up parental access in the event that the father, or the children, were unable to participate in scheduled parental access for good cause.

Recent Decisions and Legislation October 1, 2019

Recent Legislation

Laws of 2019, Ch 335, enacted and effective October 3, 2019 amended Family Court Act §§828 and 842, Family Court Act § 412(10), Domestic Relations Law § 236 [B][5-a] [b][5] and Domestic Relations Law § 236[B](6][b][4]

               Family Court Act §§828 and 842  were amended to authorize Family Court, when issuing a temporary order of protection to issue  an  order directing  the parties to appear within seven business days of the issuance of the order in the family court, in the same action, for consideration of an order for temporary spousal support in accordance with article four of the family court act. If the court directs the parties to appear, it must direct the parties to appear with information with respect to income and assets. However, a temporary order for spousal support may be issued pursuant to article four of the family court act on the return date notwithstanding the respondent’s default upon notice, and notwithstanding that information with respect to income and assets of the petitioner or respondent may be unavailable.

               The additions to Family Court Act §828 (5) and 842 are identical and read as follows:

                Notwithstanding the provisions of section eight hundred seventeen

   of this article, where a temporary order of spousal support has not

   already been issued, the court may, in addition to the issuance of a

   temporary order of protection pursuant to this section, issue an order

   directing the parties to appear within seven business days of the issue-

   acne of the order in the family court, in the same action, for consider-

   ation of an order for temporary spousal support in accordance with arti-

   cle four of this act. If the court directs the parties to so appear, the

   court shall direct the parties to appear with information with respect

   to income and assets, but a temporary order for spousal support may be

   issued pursuant to article four of this act on the return date notwith-

   standing the respondent’s default upon notice and notwithstanding that

   information with respect to income and assets of the petitioner or

   respondent may be unavailable.

               Family Court Act § 412(10), Domestic Relations Law § 236 [B][5-a][b][5] and Domestic Relations Law § 236[B](6][b][4] were amended to fix the date of the biennial adjustment of the spousal maintenance "cap" at March 1st, rather than January 31st, commencing in 2020.

               According to the Assembly sponsors memorandum in support to the legislation the Family Protection and Domestic Violence Intervention Act of 1994 (L. 1994, c. 222) authorized Family Courts, when issuing orders of protection in family offense cases, to issue temporary orders of child support. However, it did not authorize the court to award support to married petitioners in family offense proceedings who do not have minor, dependent children. Child support, but not spousal support, may be ordered in conjunction with the issuance of an order of protection. The amendment permits issuance of a temporary order of spousal support on the return date of the family offense petition "notwithstanding the respondent's default upon notice and notwithstanding that information with respect to income and assets of the petitioner or respondent may be unavailable." Upon making an order for temporary spousal support, the court must set the spousal support matter down for determination of the final order.

               The amendment of the date of calculation of the spousal maintenance

"cap" in the Family Court Act and Domestic Relations Law, conforms the adjustment date to that already in effect for the child support income "cap," self-support reserve and poverty level guidelines amount.

Appellate Divison, Second Department

Court has no discretion to deny trial application for money judgment where it is established that arrears were due and unpaid

In Uttamchandani v Uttamchandani, --- N.Y.S.3d ----, 2019 WL 4457752, 2019 N.Y. Slip Op. 06645 (2d Dept.,2019) the Appellate Division observed that a  party to a matrimonial action may make an application for a judgment directing the payment of arrears at any time prior to or subsequent to the entry of a judgment of divorce (see Domestic Relations Law § 244; McCoy v. McCoy, 117 A.D.3d 806, 808, 985 N.Y.S.2d 629). The court did not have the discretion to deny the plaintiff’s application for leave to enter a money judgment since she established that arrears were due and unpaid. Where there are triable issues of fact as to the amount of arrears, an evidentiary hearing should be held.

Recent Decisions and Legislation September 16, 2019

September 16, 2019

Recent Legislation

Laws of 2019, Ch 258, effective September 16, 2019

           

Laws of 2019, Ch 258, enacted September 16, 2019 amended Domestic Relations Law §110 by adding a new closing paragraph which provides: A petition to adopt, where the petitioner's parentage is legally-recognized under New York State law, shall not be denied solely on the basis that the petitioner's parentage is already legally-recognized.

According to the Assembly Memorandum in support of the Legislation, under existing New York law, judges already have the ability to grant an adoption of a child by a petitioner whose parentage is already legally-recognized. These adoptions are routinely granted and can be very important for many same-sex couples and their children. While the spouse of a woman who gives birth to a child is presumed to be the child's parent, same-sex couples find themselves in a legally precarious position when traveling in places that do not fully respect the rights of non-biological parents even when they are married. A New York adoption would be honored in another jurisdiction, and afforded full faith and credit. This gives children the security that both their parents will be legally recognized wherever family members may be.

Laws of 2019, Ch 313 effective September 13, 2019

            Laws of 2019, Ch 313 enacted September 13, 2019 amended the Domestic Relations Law (DRL) and the Family Court Act (FCA) to specify that the incarceration of the child support obligor is not to be treated as voluntary unemployment in either the establishment or modification of a support order unless such incarceration is the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment. The amendments provide that incarceration shall not be a bar to establish a substantial change in circumstances, barring these exceptions. (amendments are underlined below)

            Domestic Relations Law § 240 (1-b) (b) (5) (v) was amended to provide that incarceration shall not be considered voluntary unemployment in establishing child support obligations, except in certain situations. The amendment reads as follows:

     (v)  an amount imputed as income based upon the parent's former

   resources or income, if the court determines that a parent has reduced

   resources or income in order to reduce or avoid the parent's obligation

   for child support; provided that incarceration shall not be considered

   voluntary unemployment, unless such incarceration is the result of non-

   payment of a child support order, or an offense against the custodial

   parent or child who is the subject of the order or judgment;  

            Domestic Relations Law § 236 [B] (9) (b) (2) (i) was amended to provide that incarceration shall not be considered voluntary unemployment in modifying child support obligations and shall not be a bar to establish a substantial change in circumstances, except in certain situations.

               Domestic Relations Law § 236 [B] (9) (b) (2) (i) was amended to read as follows:

               (i) The court may modify an order of child support, including an order

   incorporating without merging an agreement or stipulation of the

   parties, upon a showing of a substantial change in circumstances.

   Incarceration shall not be considered voluntary unemployment and shall

   not be a bar to finding a substantial change in circumstances provided

   such incarceration is not the result of non-payment of a child support

   order, or an offense against the custodial parent or child who is the

   subject of the order or judgment.

            Family Court Act § 413 subd. 1 (b) (5) (v) was amended to provide that incarceration shall not be considered voluntary unemployment in establishing child support obligations, except in certain situations.

            Family Court Act § 413 subd. 1 (b) (5) (v) was amended to read as follows:

     (v) an amount imputed as income based upon the parent’s former

   resources or income, if the court determines that a parent has reduced

   resources or income in order to reduce or avoid the parent’s obligation

   for child support; provided that incarceration shall not be considered

   voluntary unemployment, unless such incarceration is the result of non-

   payment of a child support order, or an offense against the custodial

   parent or child who is the subject of the order or judgment;

            Family Court Act § 451 subd. 3 (a) was amended to provide that incarceration shall not be considered voluntary unemployment in modifying child support obligations and shall not be a bar to establish a substantial change in circumstances, except in certain situations.

               Family Court Act § 451 subd. 3 (a) was amended to read as follows:

     (a) The court may modify an order of child support, including an order

   incorporating without merging an agreement or stipulation of the

   parties, upon a showing of a substantial change in circumstances.

   Incarceration shall not be considered voluntary unemployment and shall

   not be a bar to finding a substantial change in circumstances provided

   such incarceration is not the result of non-payment of a child support

   order, or an offense against the custodial parent or child who is the

   subject of the order or judgment. 

            Social Services Law § 111-g, subd. 3 (a) was amended to comply with the mandatory provision of the federal Bipartisan Budget Act of 2018 to increase from $25 to $35 the annual service fee for providing child support services in the case of an individual who has never received Title IV-A assistance. In addition, the Social Services Law was amended to comply with the federal requirement to increase from $500 to $550 the amount of support that the State must collect and disburse to the family prior to imposing the fee for each federal fiscal year.

               Social Services Law § 111-g, subd. 3 (a) was amended to read as follows:

                (a)  A person who is receiving child support services pursuant to this

   section who has never received assistance pursuant to title IV-A of the

   federal social security act shall be subject to an annual service fee of

   thirty-five dollars for each child support case if at least five hundred fifty dollars of                  support has been collected in the    federal fiscal year. Where a custodial parent has children with different noncustodial parents, the order payable by each noncustodial parent    shall be a separate child support case for the purpose of imposing an

   annual service fee.  The fee shall be deducted from child support

   payments received on behalf of the individual receiving services. 

            According to the Assembly Memorandum in support of the Legislation, the bill implements federal requirements and provides that incarceration shall not be a bar to establish a substantial change in circumstance, unless such incarceration is the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment. Because incarceration cannot be treated as voluntary unemployment (except in the enumerated circumstances), support awards for incarcerated individuals will not be imputed from pre-incarceration earnings. Instead, modification would be based on the incarcerated individual's current financial circumstances. If there is a basis for a modification, the child support guidelines would be applied to the incarcerated individual's current income and assets to determine his or her new support obligation. While incarceration itself would not be grounds for a modification, any significant reduction in the noncustodial parent's ability to pay support could be the basis of a downward modification (except in the enumerated circumstances).

Appellate Division, First Department

Support Magistrate's failure to make a recommendation as to incarceration upon finding of willfulness constitutes recommendation against incarceration. Summary of alleged arrears, admitted into evidence without testimony or supporting documentation is hearsay, and not competent evidence.

          In Matter of Michael R v Amanda R, ___AD3d___, 2019 WL 4264401 (1^st Dept., 2019) the first and only day of trial on the father’s enforcement petition took place on February 2, 2016 before the Support Magistrate. On that date, the father offered into evidence, without objection, his typewritten summary of the amount that he claimed the mother then owed for basic child support and for her share of the children’s add-on expenses. The father’s summary alleged that the mother owed total arrears of $63,003.53, from October 15, 2012 through November 1, 2015. However, he did not testify or present any documentation or other evidence to support the numbers in his chart. The mother testified as to her income, employment, and payment of child support and add-on expenses, and put into evidence, without objection, the parties’ child support stipulation her tax returns for 2012 through 2014, a letter of employment, documentation of unemployment benefits she had received, and her financial disclosure affidavit. At the end of the day, the court adjourned the proceeding during the mother’s testimony. The court never took further testimony. Subsequently, the court granted the father’s motion pursuant to CPLR 3126 for an order of preclusion against” the mother for failure to provide post trial disclosure.

            On or about December 7, 2017, the Support Magistrate issued findings of fact, an order of disposition, and an “Order Entry Money Judgment.” The findings of fact stated that the mother’s testimony and evidence at trial are stricken, based on the preclusion order. They state that neither party “submitted proof of income, expenses, or support of others.” They also state that the mother owed the father arrears totaling $123,720.98, apparently based solely on the father’s “alleged statement of arrears” submitted to the Support Magistrate on a date when no testimony was taken, and no exhibits received in evidence. The order of disposition and the “Order Entry Money Judgment” directed entry of a money judgment against the mother in the amount of $123,720.98. In addition, the “Order Entry Money Judgment” directed the mother to pay the father’s attorney $4,680 as counsel fees. The findings and the two orders each contained a determination that the mother had willfully violated an order of support dated April 25, 2014, although that order was not in evidence. On February 8, 2018, the father and counsel for each party appeared before the Family Court Judge, who issued a warrant directing that the mother be brought before the court, and stated, “And at that time when [the mother] is returned before this Court on that warrant, this Court will then determine ... how this Court should proceed.”

            After Family Court denied the mother’s objections to the Support Magistrate’s findings of fact and orders entered on December 7, 2017 the Mother appealed and the Appellate Division reversed. It held that a party may seek additional disclosure after trial commences only by permission of the trial court on notice (CPLR 3102[d]). Here, the father never sought permission for post-trial discovery. Nor did the father’s motion papers demonstrate any reason why he should have been permitted to pursue additional discovery more than a year after trial commenced. It held that in view of this, and the fact that the mother faced contempt penalties if she were unable to present evidence about her ability to pay, the Support Magistrate improvidently exercised his discretion in “precluding” the mother from presenting evidence and testimony that he had already admitted into evidence at trial more than a year previously.

            The Court noted that the Family Court Rules require that a support magistrate's fact findings that include a finding of willfulness “shall include ... a recommendation regarding the sanctions that should be imposed, including a recommendation whether the sanction of incarceration is recommended” (22 NYCRR 205.43[g]). A support magistrate's written findings of facts must be issued within five days of the conclusion of a willfulness hearing (22 NYCRR 205.43[f]). It had previously held that a “Support Magistrate's failure to make a recommendation as to incarceration upon [a] finding of willfulness essentially constituted a recommendation against incarceration” (Matter of Carmen R. v. Luis I., 160 A.D.3d 460, 462, 74 N.Y.S.3d 37 [1st Dept. 2018]).

Here, neither the Support Magistrate's findings of facts issued on or about December 7, 2017 nor any other document in the record contained a recommendation as to incarceration or a cure amount. It was not clear why the Family Court Judge before whom the parties appeared on February 8, 2018 stated on the record that she “believe[d]” that he had made such a recommendation. In addition, the attorneys for both parties each confirmed on the record that they were unaware that the Support Magistrate had made such a recommendation. Therefore, it was clear that no recommendation had been “transmitted to the parties” with the findings of facts. Moreover, there was no order in the record in which a Family Court Judge confirmed any recommendation by the Support Magistrate as to incarceration. Accordingly, Family Court erred in making a finding in its March 20, 2018 order that the Support Magistrate had made such a recommendation.

            The Appellate Division held that Family Court erred in denying the mothers objections on the basis that the mother’s counsel failed to file a proper affidavit of service. Any error in the affidavit of service was inadvertent and did not prejudice the father. Family Court Act § 439(e) provides that a party filing objections must serve those objections upon the opposing party, and that proof of service must be filed with the court at the time that the party’s objections are filed. Here, the father did not argue either that the mother failed to serve the objections on him or that he suffered any prejudice. Accordingly, despite the mother’s attorney’s sloppy drafting, the Family Court should have addressed the merits of the mother’s objections (Matter of Worner v. Gavin, 112 AD3d 956, 957 [2d Dept 2013]; Matter of Nash v. Yablon–Nash, 106 AD3d 740, 741 [2d Dept 2013]; Matter of Perez v. Villamil, 19 AD3d 501 [2d Dept 2005] ).

        The Appellate Division further held that because the Support Magistrate had struck all of the mother’s testimony and evidence, including a copy of the parties’ child support agreement, the only evidence supporting the father’s claims was his summary of alleged arrears, admitted into evidence without testimony or supporting documentation on the single day of trial. The summary itself was hearsay, and was not competent evidence of the mother’s obligation to pay child support or that she failed to pay any sums she was obligated to pay. Nor was it clear and convincing evidence of respondent’s willful failure to pay such sums. Moreover, the summary apparently relied on by the Support Magistrate, which the father provided to the court on a later date when no testimony was taken or evidence entered, was not evidence at all.

            The Appellate Division reversed on the law and vacated the order which granted  a preclusion order against respondent mother; reversed the order which, upon the finding that the mother willfully violated a child support order, directed entry of a money judgment and directed the mother to pay petitioner father's counsel fees; reversed the order which denied the mother's objections, on the law, without costs, and remanded the matter remanded for further proceedings consistent with its  order.     Finally, the Appellate Division held that no appeal lies from a warrant of arrest which is a non appealable paper. (see Holubar v. Holubar, 2011 N.Y. Slip Op 66140[U] [2d Dept 2011]; CPLR 5701) and dismissed the appeal from that order.

Recent Decisions and Legislation September 1, 2019

Recent Legislation

           

            Domestic Relations Law §240 (1-c) (b) was amended by Laws of 2019, Ch 182 to add to subdivision (B) which provides that

               There  is  a rebuttable presumption that it is not in the best interests of the child to   be  placed  in  the custody of or have unsupervised visits with a person who has been convicted of a felony sex  offense,  as  defined  in section  70.80  of  the penal law, or convicted of an offense in another jurisdiction which, if committed in this state, would constitute such  a felony  sex  offense, where the victim of such offense was the child who is the subject of the proceeding.  ^►Laws of 2019, Ch 182, &s;§1, effective September 22, 2019.

            Family Court Act §651 (a) was amended by Laws of 2019, Ch 182, &s;read as follows:

            When referred from the supreme court or county court to the family court, the family court has jurisdiction to determine, in accordance with subdivisions one and one-c of section two hundred forty of the domestic relations law and with the same powers possessed by the supreme court in addition to its own powers, habeas corpus proceedings and proceedings brought by petition and order to show cause, for the determination of the custody or visitation of minors.  Laws of 2019, Ch 182, &s;§2, effective September 22, 2019.

    

Appellate Division, Fourth Department

Mother’s Refusal to Believe Child’s Disclosure of Sexual Abuse and Her Continued Commitment to Alleged Abuser Rendered Her Unfit to Have Custody of Child

            In Matter of Edmonds v Lewis, --- N.Y.S.3d ----, 2019 WL 3955058, 2019 N.Y. Slip Op. 06316 (4^th Dept., 2019) the Appellate Division affirmed an order which granted the fathers motion to  modify a prior joint custody order so as to grant him sole custody of child and granted the mother supervised visitation with child. The parties were the parents of a child born in 2012. In October 2015, they stipulated to a joint custody order that granted primary physical residence of the child to the father and visitation to the mother. The mother’s visitation was suspended in May 2016, following the child’s disclosure of sexual abuse by the mother’s boyfriend. After the mother agreed to keep her boyfriend away from the child, Family Court granted the mother supervised visitation. In December 2016, however, the court temporarily suspended that visitation and, as of March 2017, the mother’s visitation had not resumed. The Appellate Division found a sound and substantial basis in the record to support the court’s determination. The mother’s refusal to believe the child’s disclosure of sexual abuse and her continued commitment to the alleged abuser rendered her unfit to have custody of the child. The quality of the home environment of the father was superior to that of the mother inasmuch as the mother resided in a one-bedroom apartment with the alleged abuser. The record established that the father, who was attentive to the child’s disclosures of abuse, was better able to provide for the child’s emotional and intellectual development and that the court’s determination aligned with the child’s desires. It rejected the mother’s contention that the court erred in directing that her visitation be supervised. “Supervised visitation is a matter left to the sound discretion of the court and will not be disturbed where ... there is a sound and substantial basis in the record to support such visitation”. Here, the record established that the mother repeatedly put the child at risk by violating court orders and by permitting the alleged abuser to have access to the child.

Fourth Department, Holds Request by Party to Waive Right to Counsel Places in Issue Whether Court Fulfilled its Obligation to Ensure A Valid Waiver, Which, As Subject of Contest Before the Court, Could Be Reviewed.

            In Matter of DiNunzio v Zylinski, --- N.Y.S.3d ----, 2019 WL 3955273, 2019 N.Y. Slip Op. 06337 (4^th Dept., 2019) after the  mother failed to return to courtroom following recess and did not appear for the  remainder of hearing, the Family Court, found the mother in default and entered an order granting father sole custody of child. On appeal the Appellate Division held that the validity of the mother's waiver of the right to counsel was the subject of contest before trial court, and thus the mother was permitted to raise on appeal her contention that trial court erred in failing to ensure that her waiver was knowing, voluntary, and intelligent.

            The Appellate Division observed that New York State law recognizes that “[p]ersons involved in certain family court proceedings have a constitutional right to counsel in such proceedings” (Family Ct Act § 261). Parties entitled to counsel include, as pertinent here, any person seeking custody of his or her child or “contesting the substantial infringement of his or her right to custody of such child” (§ 262[a][v]). When determining whether a party may properly waive the right to counsel in favor of proceeding pro se, the trial court, “[i]f a timely and unequivocal request has been asserted, ... is obligated to conduct a ‘searching inquiry’ to ensure that the [party’s] waiver is knowing, intelligent, and voluntary” (Matter of Kathleen K. [Steven K.], 17 N.Y.3d 380, 385, 929 N.Y.S.2d 535, 953 N.E.2d 773 [2011] ). Such a request for relief triggers the obligation of the court, which is permitted to grant the relief only upon “a showing on the record of a knowing, voluntary and intelligent waiver of the [right to counsel]” (Matter of Storelli v. Storelli, 101 A.D.3d 1787, 1788, 958 N.Y.S.2d 249 [4th Dept 2012]. For that reason, it held that a request by a party to waive the right to counsel and proceed pro se, as the mother made here, placed in issue whether the court fulfilled its obligation to ensure a valid waiver. The record supported the conclusion that whether the mother validly waived her right to counsel was a contested issue before the court. As the issue of the mother’s waiver of the right to counsel was the subject of contest before the court and, it could be reviewed by the Appellate Division.

            The mother, contended that the court erred in failing to ensure, in response to her request, that her waiver of the right to counsel was knowing, voluntary, and intelligent. The Appellate Division held that a showing on the record of a knowing, voluntary and intelligent waiver of the right to counsel is a prerequisite to the court’s grant of that relief. The first dissent’s assertion that the mother was not aggrieved because she was permitted to represent herself as she requested assumed that the mother made “a knowing, voluntary and intelligent choice” in obtaining that relief. That issue was the subject of contest before the court and was therefore reviewable on appeal from the orders in appeal Nos. 1–5 (see James, 19 N.Y.2d at 256 n. 3, 279 N.Y.S.2d 10, 225 N.E.2d 741.

            The majority rejected the argument of the first dissent that the statutory aggrievement requirement in CPLR 5511, which required the mother to move to vacate her default in order to appeal from that order, precluded consideration of an order or judgment “entered upon the default of an aggrieved party”. The dissent pointed out that in circumventing the default, the majority relied on a purported exception that permits the Court to review issues that were the subject of contest before the appealing party’s default (see James, 19 N.Y.2d at 256 n. 3, 279 N.Y.S.2d 10, 225 N.E.2d 741). The first dissent did not agree that James created, via a mere footnote, such a broad exception to the aggrievement requirement, and saw nothing in that case to suggest otherwise. It noted that the relevant footnote in James did nothing more than appropriately apply the aggrievement requirement to the facts of that case.