Recent Decisions and Legislation December 1, 2019 to January 16, 2019

January 16, 2019

Appellate Division Revises Statement of Client Rights

A Joint Order of the Departments of the New York State Supreme Court, Appellate Division adopted a Revised Form of Statement of Client’s Rights and Responsibilities pursuant to 22 NYCRR 1400.2, effective February 15, 2019.

Appellate Division, Second Department

Default Vacated in custody case although mother did not have a reasonable excuse for her default. Default orders not favored in custody and child support cases.

            In Abel A v Imanda M, --- N.Y.S.3d ----, 2018 WL 6797927, 2018 N.Y. Slip Op. 09000 (1^st Dept., 2018) the Appellate Division reiterated the rule that while the decision to grant or deny a motion to vacate a default rests in the sound discretion of the court, default orders are disfavored in cases involving the custody or support of children, and thus the rules with respect to vacating default judgments are not to be applied as rigorously. It found that although the mother did not demonstrate a reasonable excuse for her default in this change of custody case, she had a meritorious defense. The children had resided primarily with her, and insufficient evidence was submitted to make an informed change of circumstances determination that served the best interests of the children. Also, the court failed to sua sponte appoint an attorney for the children, which, based upon the insufficient evidence it had to make an informed best interests determination, would have been advisable. It held that under these circumstances, Family Court improvidently exercised its discretion in denying the mother’s request to vacate the final custody order made upon her default and vacated her default.

Where individual incarcerated for violating order of protection issued under Family Court Act article 8, the proceeding is one involving criminal contempt.

           

            In Desiena v Desiena, --- N.Y.S.3d ----, 2018 WL 6778900, 2018 N.Y. Slip Op. 08931 (2d Dept., 2018) the Family Court determined, beyond a reasonable doubt, that the husband willfully violated a temporary order of protection, and directed that he be incarcerated for a period of six months for each of those violations, the periods of incarceration to run concurrently. The Appellate Division affirmed. It explained that where, as here, an individual is incarcerated as a punitive remedy for violating an order of protection issued under Family Court Act article 8, the proceeding is one involving criminal contempt. In order to sustain a finding of criminal contempt, there must be proof beyond a reasonable doubt that the contemnor willfully failed to obey an order of the court. The Appellate Division pointed out that as the proceeding was criminal and not civil in nature the court was not entitled to draw a negative inference from the invocation of his Fifth Amendment privilege against self-incrimination, (see Baxter v. Palmigiano, 425 U.S. 308, 318).

Equitable estoppel is not used to deny the existence of a relationship, but rather to protect one

In Matter of Ramos v. Broderek, 166 A.D.3d 783, 88 N.Y.S.3d 204, 2018 N.Y. Slip Op. 07733 (2d Dept., 2018) the mother filed a petition alleging that Broderek was the father of the child. At the conclusion of the fact-finding hearing, the Family Court concluded that the doctrine of equitable estoppel did not apply and adjudicated Broderek as the child’s biological father. The Appellate Division affirmed. It agreed with the Family Court’s determination that the doctrine of equitable estoppel did not apply. Equitable estoppel may successfully be invoked in paternity proceedings, in the interest of fairness, to prevent the enforcement of rights which would ultimately work fraud or injustice upon the person against whom enforcement is sought. Equitable estoppel, however, does not involve the equities between or among the adults. Instead, the paramount concern in applying equitable estoppel in paternity cases is the best interests of the subject child. Equitable estoppel is not used to deny the existence of a relationship, but rather to protect one (Matter of Juanita A. v. Kenneth Mark N., 15 N.Y.3d at 5, 904 N.Y.S.2d 293, 930 N.E.2d 214).

Appellate Divison, Third Department

Uncle had standing to commence Termination of Parental Rights proceeding pursuant to Social Services Law § 384–b

            In Matter of Jahvani Z., --- N.Y.S.3d ----, 2019 WL 80635, 2019 N.Y. Slip Op. 00008 (3d Dept., 2019) the Appellate Division held as a threshold matter, that the uncle had standing to commence the proceeding. Social Services Law § 384–b provides that custody of a child may, by court order, be committed to an authorized agency, a foster parent or “a relative with care and custody of the child” (Social Services Law § 384–b[3][a]) That statute specifically provides that proceedings to terminate parental rights ‘may be originated by an authorized agency or by a foster parent ... or by a relative with care and custody of the child’ ” (Matter of Cadence SS. [Amy RR.–Joshua SS.], 103 A.D.3d at 128, 956 N.Y.S.2d 639). The uncle was “a relative with care and custody of the child” who was authorized to commence this permanent neglect proceeding pursuant to Social Services Law § 384–b(3)(b). Respondent’s reliance upon other statutory provisions governing Family Court’s authority or obligation to issue orders under certain circumstances (see Social Services Law § 384–b[3][a] ) and regarding who may initiate a petition to terminate parental rights when the authorized agency fails to do so as court ordered in certain circumstances (see Social Services Law § 384–b[3][l][i], [iv]; Family Ct. Act §§ 1055[d]; 1089[d][2] [viii] [E] ) was misplaced. Those provisions do not override the express authority granted by Social Services Law § 384–b(3)(b) to a relative with care and custody of the child” to initiate parental termination proceedings. In a footnote the court pointed out that Family Ct. Act § 1032 did not apply here, as the proceeding was commenced pursuant to Social Services Law § 384–b.

January 1, 2019

Recent Legislation

Laws of 2018, Ch 516 - CPLR 4511(c) - Judicial notice of Google Maps. 

            Laws of 2018, Ch 516 amended CPLR 4511, effective December 28, 2018, to insert subdivision (c) which provides for a rebuttable presumption of judicial notice of web mapping or global imaging websites such as Google Maps.  Every court must take judicial notice of an image, map, location, distance, calculation, or other information taken from a web mapping service, a global satellite imaging site, or an internet mapping tool, when requested by a party to the action, subject to a rebuttable presumption that such image, map, location, distance, calculation, or other information fairly and accurately depicts the evidence presented.  The presumption may be rebutted by credible and reliable evidence that the image, map, location, distance, calculation, or other information taken from a web mapping service, a global satellite imaging site, or an internet mapping tool does not fairly and accurately portray that which it is being offered to prove.  A   party intending to offer the image or information at a trial or hearing must, at least 30 days before the trial or hearing, give notice of such intent, providing a copy or specifying the internet address at which the image or information may be inspected. No later than 10 days before the trial or hearing, a party upon whom the notice is served may object to the request for judicial notice of such image or information, stating the grounds for the objection. Unless objection is made pursuant to this provision, or is made at trial based upon evidence which could not have been discovered by the exercise of due diligence prior to the time for objection otherwise required by this provision, the court must take judicial notice of the image or information. Former subdivisions (c) and (d) were renumbered as (d) and (e).

Laws of 2018, Ch 415 - Domestic Relations Law §11.

            Domestic Relations Law §11 was amended effective December 21, 2018, by adding a new subdivision 2-a which adds to the list of those persons who may solemnize a marriage, a member of the New York state legislature, provided that he or she does not charge or receive a fee.

Laws of 2018, Chapter 362  

            Laws of 2018, Ch 362 amended amend Articles seven and ten of the Family Court Act with regard to PINS and child protective proceedings involving truancy allegations. The Chapter:

Amended Family Court Act § 735 to require designated lead PINS diversion agencies to review and document efforts by school districts to resolve truancy or school misbehavior in all PINS proceedings containing such allegations regardless of the potential petitioner

Amended Family Court Act § 736 to require that the school district or local educational agency be notified of the court proceeding and be allowed to participate and provide assistance where the court determines that such participation and /or assistance would aid in the resolution of the petition.

Amended Family Court Act § 742 of the Family Court Act to permit the court

to refer PINS proceedings to diversion agencies at any stage in the proceeding. To minimize the unnecessary filing of educational neglect petitions against parents, the amendment adds provisions that, in effect, establish a rebuttable presumption in favor of diversion.

Amended the definition of educational neglect in Family Court Act § 1012(f) to require proof of parental failure to provide educational services to a child "notwithstanding the efforts of the school district or local educational agency and child protective agency to ameliorate such alleged failure prior to the filing of the petition," thus making failure to resolve educational problems through diversion a prerequisite to filing.

Amended Family Court Act § 1031 to require that these efforts be recited in the petition, along with "the grounds for concluding that the education-related allegations could not be resolved absent the filing of a petition."

Amended Family Court Act § 1035 to authorize Family Court to notify the school district or local educational agency and to allow their participation where the court determines that such participation and /or assistance would aid in the resolution of the petition. (See 2018 NY Legis Memo 362)

Laws of 2018, Ch 60 - Family Court Act 842-a

            Laws of 2018, Ch 60, § 5, amended Section 842–a of the family court act

to add rifles and shotguns to the list of weapons whose licenses may be suspended or  revoked upon the issuance of a temporary order of protection or order of protection and to provide that upon the termination of any suspension order issued pursuant to this section, any court of record exercising criminal jurisdiction may order the return of a firearm, rifle or shotgun pursuant to paragraph b of subdivision five of section 530.14 of the criminal procedure law.

Laws of 2018, Ch 55 - Family Court Act §821(1)(a)

          Family Court Act §821 (1)(a) was amended to add coercion in the third degree to the list of crimes that constitute a family offense.

Recent Decisions

Appellate Division, First Department

Hearing necessary before court modifies prior order of custody or visitation, even where court is familiar with parties and child, particularly where facts in dispute. Hearing must include opportunity for both sides, and children’s attorney to present respective cases

            In Matter of Anthony B v Judy M, --- N.Y.S.3d ----, 2018 WL 6537034, 2018 N.Y. Slip Op. 08568 (1s Dept., 2018) the Appellate Division held that the court erred when, without holding an evidentiary hearing, it made a final order transferring physical and legal custody to the father and suspending all contact between the mother and the child for a year. It observed that it has consistently held that “an evidentiary hearing is necessary before a court modifies a prior order of custody or visitation,” even where the court is familiar with the parties and child, and particularly where there are facts in dispute. While it has stated that a hearing on modification of a custody arrangement in the child’s best interests “may be ‘as abbreviated, in the court’s broad discretion, as the particular allegations and known circumstances warrant ...,’ it must include an opportunity for both sides, and the children’s attorney when there is one, to present their respective cases, and the ‘factual underpinnings of any temporary order [must be] made clear on the record’ ” (Shoshanah B. v. Lela G., 140 A.D.3d 603, 607, 35 N.Y.S.3d 18 [1st Dept. 2016] ). The court’s reliance on statements made by the ACS caseworker during a court conference was inappropriate, since the mother’s attorney had requested, but was denied, a full hearing at which counsel could have cross-examined the caseworker. There was no indication in the record that the court possessed sufficient information to determine how to modify the custody and visitation arrangement in order to best serve the child’s interests. Moreover, there was no basis in the record for the court’s determination that it was in the best interests of the parties’ young child that he have no contact with his mother for a year. The matter was remanded to the court for further proceedings.

            The Appellate Division held that the court also erred in prohibiting the mother from filing any future petitions for custody or visitation without leave of court for a period of one year when neither the father nor the child’s attorney sought this relief. In an appropriate case, a court may enjoin a party from continuing to litigate certain claims without prior approval of the court “to prevent use of the judicial system as a vehicle for harassment, ill will and spite” (Matter of Sud v. Sud, 227 A.D.2d 319, 319, 642 N.Y.S.2d 893 [1st Dept. 1996]; see also Komolov v. Segal, 96 A.D.3d 513, 514, 947 N.Y.S.2d 14 [1st Dept. 2012]). However, there was no evidence that the mother had a history of relitigating the same claim or otherwise engaging in frivolous litigation against the father that might have made such a ruling appropriate.

Appellate Division, Second Department

When allegations of fact in petition to change custody are controverted, court must, as a general rule, hold a full hearing.  Denial of custody as a punishment for misconduct is improper.

            In Williams v Jenkins, --- N.Y.S.3d ----, 2018 WL 6519193, 2018 N.Y. Slip Op. 08491 (2d Dept., 2018) an order dated May 21, 2014, awarded the parties joint legal custody of the child with physical custody to the mother and parental access to the father. The order provided that neither parent could relocate with the child outside the five boroughs of New York City or the State of New Jersey without the written consent of the other parent and the establishment of a mutually agreeable post-relocation parental access schedule. In the absence of such an agreement, the order required court approval to relocate with the child. In June 2015, the mother petitioned to relocate with the child to Illinois. Prior to a scheduled court appearance on March 3, 2016, the father purportedly appeared at the courthouse and, inter alia, screamed and used inappropriate language at courthouse staff. Without conducting a hearing, the Supreme Court immediately entered an order awarding the mother sole legal and physical custody of the child, and permission to relocate with the child to Illinois. The order further provided that, “due to the father’s disruptive and obstreperous behavior in the court room, having cursed at court personnel ... all [of the father’s parental access is] suspended.” The order provided that the father could petition for parental access upon completion of a drug treatment program. The Appellate Division reversed. It pointed out that when the allegations of fact in a petition to change custody are controverted, the court must, as a general rule, hold a full hearing. The record did not demonstrate that there were no unresolved factual issues so as to render a hearing unnecessary (see S.L. v. J.R., 27 N.Y.3d at 563, 36 N.Y.S.3d 411, 56 N.E.3d 193]). It appeared that the order “serve[d] more as a punishment to the father for his misconduct than as an appropriate custody award in the child’s best interests (Matter of John A. v. Bridget M., 16 A.D.3d 324, 337, 791 N.Y.S.2d 421). The matter was remitted to the Supreme Court for a hearing on the mother’s petition, and a new determination before a different Justice.

Failure to apprise respondent in PINS proceeding of right to remain silent constitutes reversible error, even if the respondent consents to disposition

          In Matter of Tyler D, 166 A.D.3d 612, 87 N.Y.S.3d 338, 2018 N.Y. Slip Op. 07427 (2d Dept., 2018) the Appellate Division reversed an order in a PINS proceeding which determined that the appellant violated the terms of an ACD order, restored the matter to the calendar, vacated the ACD order, adjudged the appellant to be a person in need of supervision, and directed that he be placed in the custody of the Commissioner of Social Services for a period of up to 12 months. It observed that Family Court Act § 741(a) provides, in relevant part: “[a]t the initial appearance of a respondent in a proceeding and at the commencement of any hearing under this article, the respondent and his or her parent or other person legally responsible for his or her care shall be advised of the respondent’s right to remain silent”. The failure to apprise a respondent of the right to remain silent constitutes reversible error, even if the respondent consents to the disposition in the presence of counsel or fails to seek to withdraw his or her admissions based on the failure. Here, the Family Court never apprised the appellant of his right to remain silent, not at the initial appearance on the PINS petition, nor prior to accepting his admission to the allegations in the petition and entering the ACD order, nor at the fact-finding and dispositional hearing addressing the alleged violation of the ACD order. The court’s failure to advise the appellant of his right to remain silent cannot be considered harmless error (see Matter of Mark J., 259 A.D.2d 40, 42–43, 696 N.Y.S.2d 583), as the court never advised the appellant of his right to remain silent at any time during the course of this proceeding or the original PINS proceeding. Thus, the order had to be reversed (see Matter of Daniel XX., 149 A.D.3d 1231, 1232).

Family Court properly precluded father from presenting testimony from psychiatrist where no indication that testimony would have been relevant to issue of changed circumstance

 

In Matter of Gansburg v Behrman, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 6626800, 2018 N.Y. Slip Op. 08650 (2d Dept., 2018) the Appellate Division pointed out that A[e]vidence is relevant if it has >any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence= @ People v. Davis, 43 N.Y.2d 17, 27). It found that Family Court providently exercised its discretion in precluding the father from presenting testimony from a psychiatrist, as there was no indication that the psychiatrist=s testimony would have been relevant to the issue of changed circumstances, the threshold issue in the custody case. The father, through his attorney, indicated only that the psychiatrist was a trauma expert and that the psychiatrist had determined that the child had been Atraumatized.@ However, the father had not alleged in any of his pleadings that the child had been traumatized or that this alleged trauma constituted a change in circumstances necessitating a modification of custody or parental access. Nor did the father or his attorney specify the nature of the alleged trauma or how it related to the mother=s custody of the child or the father=s parental access with the child. The father=s vague allegations of trauma, with no apparent connection to the existing custody and parental access arrangements, did not demonstrate that the psychiatrist=s testimony would be relevant to the issue of whether there was Aa subsequent change of circumstances such that modification is required to ensure the best interests of the child@ (Matter of Bacchus v. McGregor, 147 A.D.3d at 1050, 48 N.Y.S.3d 683).

Determination that absence of sexual intimacy conclusively established there was no “intimate relationship” within meaning of Family Court Act § 812(1)(e), was improper

            In the Matter of Raigosa v Zafirakopoulos, --- N.Y.S.3d ----, 2018 WL 6519212, 2018 N.Y. Slip Op. 08485 (2d Dept., 2018) the petitioner commenced a proceeding seeking, inter alia, an order of protection against the respondent. She alleged that the petitioner and the respondent “have an intimate relationship,” as they were living together as roommates. Family Court, without a hearing, found that the parties did not have an intimate relationship because their relationship was not sexual in nature (Family Court Act § 812(1)(e) and granted the respondent’s application to dismiss for lack of subject matter jurisdiction.  The Appellate Division held that Family Court’s determination that the absence of sexual intimacy between the parties by itself conclusively established that there was no “intimate relationship” within the meaning of Family Court Act § 812(1)(e) was improper (see Matter of Arita v. Goodman, 132 A.D.3d 1108, 1110, 18 N.Y.S.3d 473). It reversed and remitted the matter to the Family Court, for a hearing to determine whether the Family Court had subject matter jurisdiction under Family Court Act § 812(1)(e), and for a new determination.

Appellate Divison, Third Department

Third Department Joins First and Second Departments in holding Family Ct. Act ' 1046(a)(vi) can not be applied in a proceeding pursuant to Family Ct Act article 8.

In Matter of Kristie GG v Sean GG, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2018 WL 6683333, 2018 N.Y. Slip Op. 08718 (3d Dept., 2018) the mother filed a petition alleging that the father had committed a family offense against the children. At a fact‑finding hearing, the attorney for the children moved to preclude the parties from calling the children as witnesses. Family Court granted the motion on consent. Over the father=s hearsay objections, two detectives testified as to the children=s out‑of‑court statements about the incident. The mother also testified as to the children=s statements. Video recordings of the police interviews with the children were admitted into evidence, over the father=s objections. The father testified regarding the incident, asserting that he took the middle child by the arm to lead him outside the hotel but, after the child was disrespectful and hit the father=s arm, the father grabbed the child by both arms to get him under control. Based on the testimony, video recordings and a photograph of the child=s arm, Family Court found that the father committed the family offense of harassment in the second degree and issued a two‑year order of protection. The Appellate Division held that Family Court erred in admitting hearsay testimony of the children in the fact‑finding portion of this Family Ct Act article 8 proceeding. In proceedings commenced pursuant to Family Ct Act article 8, A[o]nly competent, material and relevant evidence may be admitted in a fact‑finding hearing@ (Family Ct. Act ' 834). Competent evidence excludes hearsay testimony unless an exception exists. The court here relied on Family Ct. Act ' 1046(a)(vi), which provides, in part, that Aprevious statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence, but if uncorroborated, such statements shall not be sufficient to make a fact‑finding of abuse or neglect.@ By its terms, that statute applies only in hearings under Family Ct Act articles 10 and 10BA, which generally address child protective proceedings (see Family Ct. Act ' 1046[a] ). Nevertheless, courts have applied this statutory hearsay exception to custody and visitation proceedings, commenced pursuant to Family Ct Act article 6, and have deemed admissible in such proceedings a child=s out‑of‑court statements so long as they relate to abuse or neglect and are sufficiently corroborated. The Appellate Division pointed out that despite the extension of the exception from Family Ct Act articles 10 and 10BA to article 6, it had never directly addressed whether Family Ct. Act ' 1046(a)(vi) can be applied in a proceeding pursuant to Family Ct Act article 8. The First and Second Departments have concluded that even though the exception has been applied in custody proceedings under article 6 that are founded on abuse or neglect, because Family Ct. Act ' 1046(a)(vi) Ais explicitly limited to child protective proceedings under articles 10 and 10BA, [it] has no application to family offense proceedings under article 8@ (Matter of Dhanmatie G. v. Zamin B., 146 A.D.3d 495, 495, 45 N.Y.S.3d 40 [1st Dept. 2017]; see Matter of KhanBSoleil v. Rashad, 108 A.D.3d 544, 546, 969 N.Y.S.2d 104 [2d Dept. 2013] ). This conclusion comports with the language of the statute. Considering that Family Ct Act article 8 essentially provides a civil forum to address criminal conduct and is generally utilized between adult parties, whereas the primary purpose of Family Ct Act articles 10 and 10BA is to protect vulnerable children, it is reasonable to limit the Family Ct. Act ' 1046(a)(vi) exception for children=s out‑of‑court statements from being applied in family offense proceedings. Therefore, it held that Family Court erred in admitting the children=s out‑of‑court statements during the fact‑finding hearing, and found that without the hearsay testimony, there was not a sufficient basis for the court to find that the father committed a family offense. It reversed and remitted for a new fact‑finding hearing.

Movant to vacate a default judgment, generally required to demonstrate both a reasonable excuse for failure to appear a meritorious defense. No such showing is required where a party’s fundamental due process rights have been denied.

 In Matter of King v King, --- N.Y.S.3d ----, 2018 WL 6683269, 2018 N.Y. Slip Op. 08724 2018 WL 6683269 (3d Dept., 2018) when the wife failed to appear, the court found her to be in default and dismissed her family offense petition. The court conducted a brief fact-finding hearing upon the husband’s family offense petition and found that the wife had committed several family offenses and issued a two-year order of protection against the wife. The wife moved to vacate the default, and Family Court denied the motion. The Appellate Division reversed. It noted that to vacate a default judgment, the movant is generally required to demonstrate both that there was a reasonable excuse for his or her failure to appear and that the movant had a meritorious defense against the allegations addressed at the hearing. “No such showing is required, however, where a party’s fundamental due process rights have been denied” (Matter of Sonara HH. [Robert HH.], 128 A.D.3d 1122, 1124, 8 N.Y.S.3d 477 [2015]).  At the hearing, the court asked the husband whether he had signed and dated the petition, and whether everything he had sworn to therein was true. The husband answered affirmatively. There was no further questioning or testimony related to the allegations set forth within his petition. The court instead, sua sponte, addressed a new subject, inquiring about allegations that had apparently been raised on some other occasion. When the court asked whether the alleged events had occurred, the husband responded, “Yes, ma’am,” without specifically describing those factual allegations. Upon this basis, the court then granted a request by the husband’s counsel to amend the petition to add certain offenses. The court then found the wife had committed the family offenses.  Nothing in the record indicated that the wife was given any notice that the matters raised by Family Court would be addressed at the hearing. The Appellate Division held that notice is a fundamental component of due process. In the absence of notice to the wife, Family Court’s sua sponte consideration of extraneous allegations violated the wife’s due process rights. Accordingly, Family Court’s order denying the wife’s motion to vacate the default had to be reversed.

Supreme Court

Supreme Court Holds Uniform Standards of Professional Appraisal Practice do not require any specific approach to valuation.

            In Macklowe v. Macklowe, 61 Misc 3d 1226(A) (Sup Ct., 2018) the parties married on January 4, 1959. The parties collected art almost from the beginning of their marriage. They now possessed an internationally renowned collection of modern and contemporary art. In 2013, ownership of the art was transferred to LDBM, LLC of which the Wife was the sole member. The collection consisted of 165 pieces. Each party presented an expert witness qualified to testify to the value of the art. The experts presented a value for each piece of art and an overall value of the collection. Neither expert testified to the value of LDBM, LLC separate and apart from the art. Neither business records nor tax returns for LDBM, LLC were received in evidence. The court concluded, therefore, that apart from the value of the art, LDBM, LLC had no separate value and need not be distributed. In conducting their respective valuations of the art, the experts each testified that they performed their valuations in accordance with the Uniform Standards of Professional Appraisal Practice (” USPAP”). (PX-40). The USPAP standards for personal property appraisals are set forth in Standard 7. The Wife argued that the Husband’s expert failed to follow those standards.  The court concluded that the rule does not require any specific approach to valuation. The Standard mandates that the method employed be appropriate to the property being valued. Rule 7-3 (b) requires an appraisal to “define and analyze the appropriate market consistent with the type and definition of value.” But equally important Rule 7-3 (c) requires the appraiser to “analyze the relevant economic conditions that exist on the effective date of the valuation, including market acceptability of the property, and supply, demand, scarcity or rarity.” Moreover, Rule 7-6 requires the appraiser to “reconcile the data available and analyzed within the approach or approaches used” and to “reconcile the applicability and relevance of the approach or approaches, methods and techniques used “(PX-40). Each expert agreed that it was appropriate to use the sales comparison valuation methodology, and in doing so each used public auction comparable sales of art by the artist whose work was being appraised. Notwithstanding their different approaches, for eighty-six works of art, the experts agreed on the value or the value attributed by each expert was sufficiently close that the court found it appropriate to value the piece at the mid-point between the two appraisals. The Court noted that simply averaging expert appraisals is frowned upon unless the court can articulate its reason for doing so. The court recognized that appraisal of art is inexact and that the differences between the two values was inconsequential given the overall value attributed by each expert for that individual piece. Hoyt v. Hoyt, 166 AD2d 800 (3d Dep’t 1990); Reingold v. Reingold. 143 AD2d 126 (2d Dep’t 1988); cf., Antinora v. Antinora, 125 AD3d 1336 (4th Dep’t 2015); Robinson v. Robinson, 133 AD3d 1185 (3d Dep’t). The court also found that for an additional fifteen pieces of art, only one party valued the work and the court accepted that valuation. The disparity in the valuations for the remaining art in the collection precluded the court from assigning a value to those works. Both experts agreed that many of the remaining pieces in the collection were of significant value, often rare examples of that artist’s work. The difference in the experts’ valuations was often because there had been no recent auction sale of comparable work by the artist.  Accordingly, the court could not attribute a value to those pieces in the collection.

December 16, 2018

Appellate Division, Second Department

Appellate Division Holds Family Court complied with Domestic Relations Law § 75–i [5] by describing its communication with Hawaii Court on the record before the parties and answering the parties’ questions about the discussion

            In Matter of Montanez v Tompkinson, --- N.Y.S.3d ----, 2018 WL 6332479, 2018 N.Y. Slip Op. 08305 (2d Dept., 2018) the child was born in New York in May 2016. In early February 2017, the mother moved to Hawaii with the child after the father allegedly perpetrated acts of domestic violence against her in the child’s presence. On February 7, 2017, the Administration for Children’s Services commenced a neglect proceeding against the father in Family Court. On May 3, 2017, the father commenced a custody proceeding in New York, but was unable to serve the mother until December 2017. On August 24, 2017, the mother commenced a child custody proceeding in the Hawaii Court. Unaware of the neglect petition and the father’s custody petition in New York, and upon the father’s default, it awarded the mother sole custody, in addition to child support. The neglect petition pending in New York was settled on January 19, 2018, at which time the Family Court learned of the Hawaii proceeding. The Family Court conferred with the Hawaii Court, and learned that, when the Hawaii Court issued its orders, it had only been aware of a criminal proceeding against the father, and that it was unaware of the neglect and custody proceedings in New York. The Hawaii Court informed the Family Court that the “the father was personally served with the mother’s paternity and custody petition.” Family Court declined to exercise its jurisdiction on the ground that New York was an inconvenient forum and that Hawaii was a more appropriate forum (see Domestic Relations Law § 76–f). In determining that Hawaii was a more appropriate forum, the Family Court speculated that since the Hawaii Court was not aware of the proceedings in New York when it issued its default orders determining issues of paternity, child support, custody, and parental access, the Hawaii Court would “likely entertain an application by the father to vacate his default, and then proceed on the merits of the mother’s petition.” The Family Court issued a stay of the father’s custody proceeding “pending the reopening of the mother’s custody proceeding in Hawaii.”

            The Appellate Division observed that under the Domestic Relations Law, a child neglect proceeding is encompassed within the definition of a child custody proceeding (see Domestic Relations Law § 75–a [4]) and as recognized by the Family Court, the child’s home state was therefore New York. It found that given the substance of its discussions with the Hawaii Court, the Family Court’s determination to engage in an inconvenient forum analysis under Domestic Relations Law § 76–f (1) was an improvident exercise of discretion. Since New York was the child’s home state pursuant to the UCCJEA, the Hawaii Court lacked subject matter jurisdiction to make determinations on the mother’s child custody petition (see e.g. Beam v. Beam, 126 Hawai ‘i 58, 266 P.3d 466). Having been informed of the facts establishing that New York was the child’s home state, the Hawaii Court did not acknowledge its own lack of subject matter jurisdiction to have issued orders regarding child custody (see e.g. W.P. v. M.S., 141 Hawai ‘i 246, 407 P.3d 1282). “A judgment or order issued without subject matter jurisdiction is void, and that defect may be raised at any time and may not be waived” (Editorial Photocolor Archives v. Granger Collection, 61 N.Y.2d 517, 523, 474 N.Y.S.2d 964, 463 N.E.2d 365). In the absence of any indication that the Hawaii Court vacated those orders, the Family Court should not have determined that the Hawaii Court was a more appropriate forum. The father did not participate in any of the proceedings in Hawaii and there was no certainty that Hawaii would permit the father to reopen the hearings previously held in order to submit his own testimony and evidence, or that he would be given an opportunity to challenge the evidence already submitted, including to cross-examine the mother.

            Moreover, Family Court should not have declined to exercise jurisdiction and designated Hawaii as a more appropriate forum without first being assured by the Hawaii Court that all of its prior orders issued without subject matter jurisdiction were vacated. Further, any stay of the father’s New York custody proceeding should have been upon the condition that child custody proceedings be promptly recommenced in Hawaii such that all parties would have the opportunity to be heard in a hearing de novo (see Domestic Relations Law § 76–f [3]).

            The Appellate Division held that contrary to the father’s contention, the Family Court complied with Domestic Relations Law § 75–i in its communications with the Hawaii Court. The Family Court properly contacted the Hawaii Court after learning of the proceedings conducted there, informed the parties of the communication, and provided them the opportunity to present facts and arguments before making a decision on jurisdiction (see Domestic Relations Law § 75–i [2], [4]). The court complied with the statutory mandate to make a record of the communication, defined as “information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form” (Domestic Relations Law § 75–i [5]). That requirement may be satisfied by “a memorandum or an electronic record made by a court after the communication” (Comment, Uniform Child Custody Jurisdiction and Enforcement § 110 [1997]). The Family Court properly made a record of the communication by describing it on the record before the parties and answering the parties’ questions about the discussion in open court.

            It remitted the matter to the Family Court to determine whether New York is an inconvenient forum and whether Hawaii is a more appropriate forum.

Application for Counsel Fee Under Family Ct Act § 438[a] governed by Different Criteria than Under Domestic Relations Law 237 (a).

            In Matter of Levin v Blum, --- N.Y.S.3d ----, 2018 WL 6332487 (Mem), 2018 N.Y. Slip Op. 08301 (2d Dept., 2018) a child support proceeding pursuant to Family Court Act article 4, the Appellate Division affirmed an order denying the mothers application for counsel fees. It observed that the court, in its discretion, may award an attorney’s fee to the attorney representing the person who is claiming a right to support on behalf of the child” (Family Ct Act § 438[a]). Absent a finding that nonpayment was willful, an award of counsel fees is a matter left to the sound discretion of the Family Court. As with an award of counsel fees made pursuant to Domestic Relations Law § 237(b), the court must base its decision primarily upon both parties’ ability to pay, the nature and extent of the services required to deal with the support dispute, and the reasonableness of their performance under the circumstances” (Matter of Pacheco v. Pacheco, 163 A.D.3d at 577, 80 N.Y.S.3d 455).

Authors Comment:

           

            There is a significant difference between counsel fee applications made under Family Court Act §438(a) and those made under Domestic Relations Law §237(a) and (b). Family Court Act §438 (a) applies to any proceeding under Article 4 of the Family Court Act,  including proceedings for support of a spouse and children. In such cases the statute provides that “… the court may allow counsel fees at any stage of the proceeding, to the attorney representing the spouse, former spouse or person on behalf of children.”  As Levin v Blum, supra, indicates, an award of counsel fees is a matter left to the sound discretion of the Family Court. Similarly, Domestic Relations Law §237 (a) applies to actions in which maintenance and child support may be awarded. It provides that the Court may direct the person or persons maintaining the action, to pay counsel fees …as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties.  Case law under Domestic Relations Law §237 (a) holds that an award of counsel fees is a matter left to the sound discretion of the Supreme Court. Papakonstantis v Papakonstantis,82 N.Y.S.3d 557, 561, 2018 N.Y. Slip Op. 05326, 2018 WL 3448334, (2 Dept., 2018). However, there is one significant distinction between the two statutes.  Domestic Relations Law §237 (a) contains “a rebuttable presumption that counsel fees shall be awarded to the less monied spouse.” No such presumption appears in  Family Court Act §438. In our opinion there appears to be no reason for the distinction between counsel awards made in matrimonial actions where maintenance or child support is in issue and those made in family court proceedings where maintenance or child support is in issue. Family Court Act §438 should be amended to bring it into line with Domestic Relations Law §237.

Appellate Divison, Third Department

Family Court Custody Determination Reversed Where Mother’s Assigned Counsel Consistently Failed to Protect Mother’s Interests and A Sound and Substantial Basis to Support Family Court’s Determination Did Not Exist

            In Matter of Shirreece AA v Matthew BB, 2018 WL 6204650 (3d Dept.,2018) the Appellate Division reversed the custody award and remitted the matter to Family Court for further updated fact-finding, if necessary, before a different judge and a custody determination that reflected the best interests of the child. It directed that upon remittal, Family Court should consider assigning the mother new counsel, as its review of the record revealed that the mother’s assigned counsel consistently failed to protect the mother’s interests.   It pointed out that Family Court’s handling of unfavorable evidence for the father exemplified its consistent minimization and disregard of salient evidence regarding the father’s fitness, without any consideration given to how such evidence may impact the best interests of the child. In contrast, Family Court misconstrued, mischaracterized and otherwise amplified the evidence to portray the mother in the light least favorable. Family Court appeared to give undue consideration to the irrelevant allegation that the mother had been unfaithful to the father during their relationship. Additionally, it was clear from Family Court’s statements that it simply did not like the mother’s parenting style, which was more relaxed and less regimented than the father’s parenting style.  The evidence did not warrant Family Court’s conclusions that the mother’s “performance as a parent [was] lacking” or that she did not “provide [] any parental guidance to the child.” In view of the foregoing, as well as other unsupported conclusions made by Family Court in its decision and order, it found that a sound and substantial basis did not exist in this record to support Family Court’s determination to award the father primary physical custody of the child. Moreover, even if Family Court’s determination to award the father primary physical custody were supported by a sound and substantial basis, there was no basis for the severe reduction of the mother’s overall time with the child, particularly since the parties had previously shared 50/50 custody of the child. Nor was there record support for the restriction that Family Court imposed on the mother’s parenting time, which precluded the mother from having parenting time with the child when her boyfriend had parenting time with his children.

Order Granting Family Offense Petition Reversed Where Respondent Was Denied Meaningful Representation. Counsel Did Almost Nothing to Assist His Client

            In Matter of Wood v Rebich, --- N.Y.S.3d ----, 2018 WL 6204660, 2018 N.Y. Slip Op. 08213 (3d Dept.,2018) Petitioner filed a family offense petition. Following a hearing, Family Court granted the petition. The Appellate Division reversed and remitted for a new hearing. It held that respondent was denied meaningful representation. Before the hearing, counsel did not engage in any discovery. At the hearing, counsel did not present an opening or closing statement. Nor did counsel object when Family Court questioned petitioner – who appeared pro se – and admittedly assisted her in establishing a foundation for two of her three photographic exhibits. Counsel asked questions of petitioner regarding those exhibits on voir dire, but objected to admission of only one of them, did not request that the court disregard petitioner’s handwritten notes on the exhibits, and did not object to the many hearsay statements made by petitioner. Counsel declined to cross-examine petitioner, at which point the court stated that she had established a prima facie case and did not need to call any further witnesses. Even though respondent had stated – while not under oath – that one of the photographs was taken when the parties were out together, rather than while petitioner was unaware of his presence, counsel did not call respondent or any other witnesses to testify. In short, counsel did almost nothing to assist his client.

December 1, 2018

Income Withholding Order Forms Revised

            Effective August 31, 2018 revised Income Withholding Order forms promulgated by the Office of Temporary and Disability Assistance were adopted by Administrative Order AO/262/18 dated August 14, 2018 effective August 31, 2018 for use in  Supreme Courts. 

            The revised Income Withholding Order Forms are:

LDSS-5037 – IWO form for child support or combined child and spousal support
LDSS-5038 -- IWO form for Spousal Support Only cases
LDSS 5039 - Income Withholding for Support: General Information and Instructions form.

Appellate Division, Second Department

Party Claiming Court Bias Should Preserve Objection by Moving for The Court to Recuse Itself.

            In Matter of Berg v Berg, --- N.Y.S.3d ----, 2018 WL 5931432, 2018 N.Y. Slip Op. 07719 (2d Dept., 2018) the Appellate Division held that a party claiming court bias should preserve an objection and move for the court to recuse itself. Here, although the father did not move for the Family Court to recuse itself it reached the issue in the interest of justice. The Court noted that when a claim of bias is raised, the ‘inquiry on appeal is limited to whether the judge’s bias, if any, unjustly affected the result to the detriment of the complaining party. Here, the record reflected that when the parties appeared before the Family Court Judge, the Judge took an adversarial stance toward the father and made numerous improper remarks to him. The Judge told the father, among other things, that he “symbolizes everything that’s wrong with the world today,” and that he was “[s]elfish, self-interested, [and] self-seeking.” The Judge repeated similar remarks multiple times during the proceeding. The Judge also called the father “lazy” and “arrogant,” and remarked that he was “the last guy that [the Judge would] want to be in a fox hole with” because he would “fold like a cheap suit.” The Judge compared the father’s accumulation of arrears to “an arsonist that starts a fire that kills one person, that kills ten.” Additionally, the Judge made the matter personal by comparing the father’s experiences to the Judge’s own. For instance, the Judge described his own past misfortune, and detailed how he picked himself up to became a judge. At the conclusion of the proceeding, the Judge committed the father to four times the period of incarceration recommended by the Support Magistrate. Under the circumstances, the bias of the Family Court Judge apparently unjustly affected the result of the proceeding to the detriment of the father. The order of commitment was reversed, and the matter remitted to the Family Court for further proceedings pursuant to Family Court Act § 439(a) before a different Judge.

Penalty Imposed for Civil Contempt Is Not Designed to Punish but To Compensate the Injured Private Party or To Coerce Compliance with The Court’s Mandate

            In Matter of Palmitesta v Palmitesta, --- N.Y.S.3d ----, 2018 WL 5931365, 2018 N.Y. Slip Op. 07731 (2d Dept., 2018) the parties stipulation of settlement which was incorporated but not merged into the parties’ judgment of divorce entered May 18, 2012, provided that the mother would have custody of the children and that the father would have parental access. In September 2015, the father moved to hold the mother in civil contempt for her failure to comply with the parental access provisions of the stipulation. Almost two years later, by order dated July 31, 2017, the Family Court, without a hearing, in effect, denied the motion. The Appellate Division affirmed. It held that the primary purpose of civil contempt is remedial. Any penalty imposed “is designed not to punish but, rather, to compensate the injured private party or to coerce compliance with the court’s mandate or both” (Matter of Department of Envtl. Protection of City of N.Y. v. Department of Envtl. Conservation of State of N.Y., 70 N.Y.2d 233, 239). At the time the father’s motion was decided, the mother was complying with the parties’ stipulation. Although the mother may have failed to comply with the stipulation in the past, at the time the father’s motion was decided, a civil contempt finding no longer could have served its intended purpose of compelling obedience to the parties’ stipulation. The only purpose of a civil contempt sanction at that point would have been to punish the mother, but punishment is the purpose of criminal contempt, not civil contempt. Thus, it agreed with the Family Court’s determination, in effect, denying the father’s motion.

           

Consent to DNA Test Did Not Obviate the Need for A Hearing on The Issue of Whether the Acknowledgment of Paternity Should Be Vacated

            In Matter of Andrew E v Angela NS, 165 A.D.3d 658, 85 N.Y.S.3d 115, 2018 N.Y. Slip Op. 06530 (2d Dept., 2018) the father filed a petition to vacate the acknowledgment of paternity on the ground of fraud, alleging, inter alia, “I do not believe that I have ever executed an acknowledgment” of paternity. Although the parties consented to a DNA test, the Family Court conducted a hearing on the issue of whether the acknowledgment of paternity should be vacated on the ground of fraud, and denied the father’s petition. The Appellate Division held that the parties’ consent to a DNA test did not obviate the need for a hearing on the issue of whether the acknowledgment of paternity should be vacated on the ground of fraud. Where, as here, a party seeks to challenge an acknowledgment of paternity more than 60 days after its execution, “Family Court Act § 516–a(b) requires the court to conduct a hearing to determine the issues of fraud, duress, or a material mistake of fact [in the execution of the acknowledgment of paternity] before ordering a [genetic marker test].

Before Precluding Evidence Pursuant to CLR 3126, There Must Be Showing That Failure to Comply with Court-Ordered Discovery Was Willful and Contumacious

            In Maliah-Dupass v Dupass, --- N.Y.S.3d ----, 2018 WL 6072098, 2018 N.Y. Slip Op. 080188 (2d Dept.,2018) the plaintiff commenced the action for a divorce in 2012.  On August 21, 2012, the defendant served the plaintiff with discovery demands. Between March 20, 2013, and December 14, 2014, the Supreme Court issued five compliance conference orders, inter alia, directing the plaintiff to respond to the defendant’s discovery demands. Pursuant to a compliance conference order dated June 19, 2014, the defendant’s attorney sent a letter to the plaintiff’s attorney requesting specific items of discovery. After the plaintiff failed to comply with the compliance conference order dated December 14, 2014, directing her to comply with the June 19, 2014, order and the defendant’s discovery demands, the defendant moved, inter alia, pursuant to CPLR 3126 to preclude the plaintiff from producing certain physical evidence or testimony at trial and for interim counsel fees in the sum of $5,000. The court denied the defendant’s unopposed motion on the ground that he did not comply with the requirements of 22 NYCRR 202.7.

            The Appellate Division reversed and held that Supreme Court should not have denied the defendant’s motion. It found that it was supported by the affirmation of his attorney, which contained an adequate statement explaining his good faith effort to resolve the issues raised by the defendant’s motion (see 22 NYCRR 202.7). It also held that Supreme Court also should not have denied defendant’s motion to impose a penalty upon the plaintiff pursuant to CPLR 3126. It noted that a court may prohibit a party “from producing in evidence designated things or items of testimony” if the party “refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed” (CPLR 3126[2]). Before a court invokes the drastic remedy of precluding evidence, there must be a clear showing that the failure to comply with court-ordered discovery was willful and contumacious. The willful and contumacious character of a party’s conduct can be inferred from either (1) the repeated failure to respond to demands or comply with court-ordered discovery, without a reasonable excuse for these failures, or (2) the failure to comply with court-ordered discovery over an extended period of time. Here, the defendant demonstrated that the plaintiff failed to comply with court-ordered discovery over an extended period of time. The willful and contumacious character of the plaintiff’s conduct may be inferred from her failure to respond to the defendant’s letter dated July 16, 2014, despite two court orders directing her to do so, and her failure to proffer any excuse for her failure. Accordingly, that branch of the defendant’s motion which was to preclude the plaintiff from producing physical evidence or testimony at trial relating to certain limited items previously requested but not disclosed should have been granted.

            The Appellate Division affirmed Supreme Court’s denial of that branch of the defendant’s motion which was to direct the plaintiff to pay interim counsel fees in the sum of $5,000, since the plaintiff was the less-monied spouse (see Domestic Relations Law § 237[a]; Maliah–Dupass v. Dupass, 140 A.D.3d 832, 833, 33 N.Y.S.3d 391).

Appellate Divison, Third Department

Appellate Division Holds Family Court Properly Considered Father’s Responsive Papers as Motion to Dismiss Without Requiring Him to File A Formal Notice of Motion

            In Sprole v Sprole, --- N.Y.S.3d ----, 2018 WL 6070149, 2018 N.Y. Slip Op. 07998 (3d Dept., 2018) the mother commenced a proceeding to modify a prior custody order seeking, among other things, sole legal custody and primary physical custody of the child. At the initial appearance on the petition, Family Court permitted the father’s responsive pleadings to serve as a motion to dismiss, which motion the attorney for the child joined, and provided the mother with an additional two weeks to provide a response. Following receipt of the mother’s responsive papers and the father’s reply, Family Court granted the father’s motion and dismissed the mother’s petition. The Appellate Division affirmed. It rejected the mother’s contention that Family Court erred when it considered the father’s responsive papers as a motion to dismiss the petition without requiring him to file a formal notice of motion. In response to the mother’s petition, the father filed an answer in which he sought, among other things, to dismiss the petition for failure to allege a change in circumstances. Upon permitting the father’s responsive pleading to serve as a notice of motion, Family Court provided the mother an additional two weeks to respond to same. It held that the mother was clearly on notice of the father’s argument alleging that she had failed to present adequate evidentiary proof to demonstrate the requisite change in circumstances and she subsequently availed herself of this opportunity to respond to the contention such that she was not prejudiced by the lack of a formal motion (citing Matter of Charles AA. v. Annie BB., 157 A.D.3d 1037, 1038, 68 N.Y.S.3d 581 [2018]).

Order Dismissing Modification Petition Reversed Where Attorney for Child Did Not Provide Effective Assistance of Counsel

            In Matter of Payne, --- N.Y.S.3d ----, 2018 WL 6070232, 2018 N.Y. Slip Op. 07990 (3d Dept., 2018) a custody modification proceeding the Appellate Division explained that generally, an “attorney for the child must zealously advocate the child’s position” (22 NYCRR 7.2[d] ) and, where “the child is capable of knowing, voluntary and considered judgment,” must be “directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child’s best interests” (22 NYCRR 7.2[d][2] ). To this end, an attorney for the child in a custody case “must take an active role in the proceeding” and “help the child articulate his or her position to the court”. As such, “an attorney for the child is expected and empowered to fully participate and advocate by all available means in presenting evidence on behalf of his or her client, and is fully vested with the responsibility to present any witness testimony and evidence as may be helpful in fulfilling the role of advocating for the child”. To effectively represent and protect a child’s interests, the attorney for the child’s role is twofold: (1) help the child express his or her wishes to the court, and (2) take an active role in the proceedings. By meeting with the child and informing Family Court that the child did not want to continue visitation as ordered, and by requesting and participating in the Lincoln hearing, the trial attorney for the child met the first objective. Given the mother’s limited testimony, however, Family Court understandably characterized the record as “thin.” In its view, the attorney for the child should have taken a more active role in the proceedings by presenting witnesses that could speak to the child’s concerns and/or conducting a more thorough cross-examination of the mother. During his brief cross-examination of the mother, for example, the trial attorney for the child did not attempt to elicit any further information about his client’s behavior and demeanor relative to his visits with the father. It agreed with the argument made by the appellate attorney for the child that the trial attorney for the child did not provide effective assistance. Consequently, the order dismissing the petition should be reversed and the matter remitted to Family Court for further proceedings, including a new fact-finding hearing.