March 16, 2020
Recent Articles of Interest
An article by Joel R. Brandes, titled" Stare Decisis, Precedent and Dicta, appears in the March 2020 issue of the New York State Bar Journal, Vol.92, No. 2 at page 36.
An article by Joel R. Brandes titled "Navigating the Matrimonial Preliminary Conference So You Don’t Sink the Ship". appears in the New York State Bar Association Family Law Review, Winter 2020, Vol. 52, No. 1.
"Custody Rights of Non-Biological Parents," by Joel R. Brandes appears in the New York Law Journal, March 12, 2020 (Click here for article)
Court Rules and Legislation – For those who missed our last issue
On March 1, 2020 the combined income cap under the Child Support Standards Act increased from $148,000 to $154,000, and of the income cap of the maintenance payor under the Maintenance Guidelines Act increased from $184,000 to $192,000. In addition, as of March 1, 2020 the Self Support Reserve increased from $16,861.50, to $17,226 and the federal Poverty Level Income for a single person increased from $12,490 to $12,760. (See https://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf)
Revised Forms for Use in Matrimonial Actions in Supreme Court were adopted effective March 1, 2020. These revisions reflect the required statutory adjustment on March 1, 2020 of the combined income cap under the Child Support Standards Act from $148,000 to $154,000, and of the income cap of the maintenance payor under the Maintenance Guidelines Act from $184,000 to $192,000. Both of these adjustments are based on increases in the Consumer Price Index for all urban consumers (CPI-U) published by the United States Department of Labor. In addition, the revised forms reflect the increases as of March 1, 2020 in the Self Support Reserve from $16,861.50, to $17,226 and in the federal Poverty Level Income for a single person from $12,490 to $12,760.
Forms and Calculators for both Contested and Uncontested Divorces revised March 1, 2020 reflecting these changes are posted at
http://ww2.nycourts.gov/divorce/MaintenanceChildSupportTools.shtml
Uncontested Divorce Forms revised March 1, 2020 reflecting these changes as well as revisions relating to applications for child support services are also posted at http://ww2.nycourts.gov/divorce/divorce_withchildrenunder21.shtml
(See http://ww2.nycourts.gov/divorce/legislationandcourtrules.shtml)
Appellate Division, First Department
Credit against child support for payment of room and board at college not mandatory
In Matter of Deborah R. V Dean E. H., --- N.Y.S.3d ----, 2020 WL 1056521, 2020 N.Y. Slip Op. 01564 (1st Dept., 2020) the Appellate Division held that Family Court properly denied respondent’s request for a credit for the child’s college room and board expenses. A credit against child support for room and board expenses “is not mandatory but depends upon the facts and circumstances in the particular case, taking into account the needs of the custodial parent to maintain a household and provide certain necessaries”.
Appellate Divison, Third Department
Where husband’s actual income less than reported on his W-2 income tax form Court imputed income based upon evidence of his actual income. Duration of maintenance award will not be disturbed so long as the statutory factors and the parties’ predivorce standard of living were properly considered.
In Bell-Vesely v Vesely, --- N.Y.S.3d ----, 2020 WL 930505, 2020 N.Y. Slip Op. 01415 (3d Dept.,2020) Plaintiff (wife) and defendant (husband) were married in 1996 and were the parents of a son (born in 1994) and a daughter (born in 1999). In July 2016, the wife commenced an action for divorce. Supreme Court granted a judgment of divorce, which, among other things, equally divided certain marital property and directed the husband to pay maintenance to the wife of $164.86 per month for seven years and child support for the daughter of $614.66 per month based on his imputed income of $49,000. The court also declined to award the wife additional counsel fees and determined that the sum remaining in the husband’s Wells Fargo brokerage account was separate property not subject to equitable distribution.
The Appellate Division held that “because imputed income more accurately reflects a party’s earning capacity and, presumably, his or her ability to pay, it may be attributed to a party as long as the court articulates the basis for imputation and the record evidence supports the calculations”. In determining a party’s child support or spousal maintenance obligation, a court may exercise its discretion by imputing income where there is clear and undisputed evidence of a party’s actual income during the pendency of the proceeding. The record supported Supreme Court’s determination that the husband’s actual income in 2016 was $49,000, notwithstanding the fact that his 2016 W–2 form reported income of approximately $91,000. The discrepancy pertained to a lump-sum loan/bonus payment of $350,000 that the husband received up front in January 2012. The husband was required to sign a promissory note requiring repayment of the loan/bonus in the event that his employment ended within a defined time. The loan/bonus proportionately transformed into debt when the husband left his employment prior to December 2021.
The Appellate Division rejected the wife’s contention that Supreme Court erred in determining the duration of maintenance to be seven, instead of eight, years. The husband’s seven-year term was presumably based on the formula for postdivorce maintenance set forth in Domestic Relations Law § 236(B)(6)(f). Under that formula, where, as here, the parties are married for 20 years, the duration can be set at between 30–40% of the term – which would allow a maximum duration of eight years. It observed that the duration of a maintenance award pursuant to this formula is discretionary, “and the award will not be disturbed so long as the statutory factors and the parties’ predivorce standard of living were properly considered”.
The Appellate Division held that Supreme Court erred in not ordering the husband to maintain the daughter’s health insurance or to pay his share of the daughter’s uninsured medical expenses. “Where the child is presently covered by health insurance benefits, the court shall direct in the order of support that such coverage be maintained” (Domestic Relations Law § 240[c][1]). Generally, “[i]f the non-custodial parent is ordered to provide such benefits, the custodial parent’s pro rata share of such costs shall be deducted from the basic support obligation” (Domestic Relations Law § 240[1–b] [c][5][ii]). Further, “the court shall pro rate each parent’s share of reasonable health care expenses not reimbursed or paid by insurance ... in the same proportion as each parent’s income is to the combined parental income” (Domestic Relations Law § 240[1–b] [c][5][v]). The husband testified that he carried and intended to maintain health insurance for the daughter. Thus, the court erred when it did not order the husband to maintain health insurance for her. In addition, the wife’s pro rata share of the cost of such health insurance, which was 41%, had to be deducted from the basic child support obligation (see Domestic Relations Law § 240[1–b] [c][5][ii]). As for the daughter’s uninsured medical expenses, the husband and the wife were directed to pay their pro rata share thereof, 59% and 41%, respectively.
By his silence the father gave implied consent to the college chosen. Mother did not waive right to challenge father’s claims regarding his annual income simply because she previously signed joint tax returns that reported a lower income.
In Matter of Susko v Susko, --- N.Y.S.3d ----, 2020 WL 1056323, 2020 N.Y. Slip Op. 01536 (3d Dept.,2020) the mother testified that she kept the father informed of the colleges that the child was considering, told him promptly that the child had been accepted at the chosen college and then provided him with full information about that school’s cost and the child’s financial aid award. She repeatedly asked the father whether he consented to this college and how much he would contribute, but he gave only evasive responses. She testified that the father never voiced any express objection to the chosen college; on the contrary, he participated in completing financial aid documentation for that school, responded, “[T]hat is great” when he was informed by email of the child’s acceptance and paid $450 as half of the initial deposit without objection. Thereafter, however, he paid nothing more. The father testified that he did not consent to the chosen college because he could not afford it, but he acknowledged that he had never expressly stated that he did not consent to that school. The Appellate Division held that this fully supported the finding that the father gave implied consent to the chosen college and, therefore, that he violated the party’s agreement by failing to make a contribution to its cost commensurate with his ability to pay.
The Appellate Division held that where, as here, “the parties expressly undertook an obligation to contribute toward the cost of the child’s college education, but did not precisely define the extent of their obligations, Family Court should proceed to consider the parties’ financial means and ability to contribute and determine their respective obligations by assessing their pro rata shares of their combined parental income, as the Support Magistrate did here.
The Appellate Division also held that the mother did not waive her right to challenge the father’s claims regarding his annual income simply because she had previously signed joint tax returns that reported a lower income (Harrington v. Harrington, 93 A.D.3d 1092, 1093–1094, 941 N.Y.S.2d 320 [2012]).
Family Court erred in finding that the Support Magistrate properly credited one third of the father’s total child support obligation over 40 weeks against his annual share of the child’s college costs. The agreement provided that the father’s child support payments should be “take[n] into consideration” in determining the parties’ obligations to share college costs. “In the absence of specific contractual language, the availability and amount of such a credit depend upon the facts and circumstances in the particular case, taking into account the needs of the custodial parent to maintain a household and provide certain necessaries”. Since the purpose of a child support credit against college costs is to avoid duplication, it covers only those expenses associated with the child’s room and board, rather than college tuition.
Editor’s note: In Mahoney-Buntzman v Buntzman, 881 N.Y.S.2d 369 (2009) the Court of Appeals held that a party to litigation may not take a position contrary to a position taken in an income tax return
March 1, 2020
Court Rules and Legislation
On March 1, 2020 the combined income cap under the Child Support Standards Act increased from $148,000 to $154,000, and of the income cap of the maintenance payor under the Maintenance Guidelines Act increased from $184,000 to $192,000. In addition, as of March 1, 2020 the Self Support Reserve increased from $16,861.50, to $17,226 and the federal Poverty Level Income for a single person increased from $12,490 to $12,760. (See https://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf)
Revised Forms for Use in Matrimonial Actions in Supreme Court were adopted effective March 1, 2020. These revisions reflect the required statutory adjustment on March 1, 2020 of the combined income cap under the Child Support Standards Act from $148,000 to $154,000, and of the income cap of the maintenance payor under the Maintenance Guidelines Act from $184,000 to $192,000. Both of these adjustments are based on increases in the Consumer Price Index for all urban consumers (CPI-U) published by the United States Department of Labor. In addition, the revised forms reflect the increases as of March 1, 2020 in the Self Support Reserve from $16,861.50, to $17,226 and in the federal Poverty Level Income for a single person from $12,490 to $12,760.
Forms and Calculators for both Contested and Uncontested Divorces revised March 1, 2020 reflecting these changes are posted at
http://ww2.nycourts.gov/divorce/MaintenanceChildSupportTools.shtml
Uncontested Divorce Forms revised March 1, 2020 reflecting these changes as well as revisions relating to applications for child support services are also posted at http://ww2.nycourts.gov/divorce/divorce_withchildrenunder21.shtml
(See http://ww2.nycourts.gov/divorce/legislationandcourtrules.shtml)
Appellate Division, Third Department
In absence of persuasive proof that mother’s “ability to earn sufficient means to pay child support was any different than the income that she was earning, there was no abuse of discretion in refusing to impute additional income to her
In Matter of O’Brien v Rutland, -- N.Y.S.3d ----, 2020 WL 825698, 2020 N.Y. Slip Op. 01222 (3d Dept.,2020) the daughter began living exclusively with the mother in 2015, prompting the mother to file, as is relevant here, a 2016 support petition with regard to her. On appeal from the order of support the Appellate Division noted that the father’s obligation to support the daughter ceased when she reached 21 years of age during the pendency of the appeal (see Family Ct Act § 413[1][a]). In the absence of a continuing support obligation, the mother argued that this appeal is moot. The Appellate Division pointed out that “where a final order of support ‘retroactively sets a higher rate than that paid during the pendency of the [proceeding, thereby] creating an immediate arrearage,’ credit should be given regarding such arrearage” (Matter of Tompkins County Support Collection Unit v. Chamberlain, 305 A.D.2d 813, 814, 758 N.Y.S.2d 542 [2003]. Inasmuch as those arrears exist here and were still being paid by the father, the appeal was not moot. The Appellate Division held that in the absence of persuasive proof that the mother’s “ability to earn sufficient means to pay child support” was any different than the income that she was earning, there was no abuse of discretion in refusing to impute additional income to her. It also held that Family Court should have sustained the father’s objection to the Support Magistrate omitting rent, admittedly paid to the mother by her fiancé́, from her income (see Family Ct Act § 413[1][f][1]; Matter of Carr v. Carr, 309 A.D.2d 1001, 1004, 765 N.Y.S.2d 688 [2003]).-
Not necessary for Family Court to dismiss visitation petitions because they were unsworn. Verification of a visitation petition is not required by CPLR 3020 or Family Ct Act article 6
In Matter of Shawn MM v Jasmine LL, 2020 WL 825695 (3d Dept., 2020) the Appellate Division held that although Family Court is not required to hold a hearing in every case, where modification of a custody order is sought, a hearing should generally be conducted “unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the child’s best interests. In determining whether a pro se petitioner made a sufficient evidentiary showing to warrant a hearing, it construes the pleadings liberally and afford the petitioner the benefit of every favorable inference. In its August 2018 order awarding sole custody to the mother upon the father’s default, Family Court “ordered that the rights are reserved for [the father] to file for custody and/or visitation.” Because the order did not otherwise address visitation, it appeared that Family Court did not intend to require the father to demonstrate a change in circumstances in order to petition for visitation
The Appellate Division held that it was not necessary for Family Court to dismiss the petitions because they were unsworn, given that verification of a visitation petition is not required by either CPLR 3020 or Family Ct Act article 6 (see generally Patrick M. Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3020:3, C3020:5).
Family Court’s characterization that an order is based on consent is not controlling when the record shows a party objected to the order.
In Matter of Adam V v Ashli W, --- N.Y.S.3d ----, 2020 WL 825604, 2020 N.Y. Slip Op. 01231(3d Dept.,2020) the Appellate Division pointed out that no appeal lies from an order entered upon the consent of the appealing party, since a party who consents to an order is not aggrieved thereby, except to the extent that it differs from or exceeds the consent (Hatsis v. Hatsis, 122 A.D.2d 111, 111, 504 N.Y.S.2d 508 [1986]). Family Court’s characterization that an order is based on consent is not controlling when the record shows a party objected to the order. The record revealed that, during the placement of the agreement upon the record, the mother objected to the exchange times stating that she would be “hard pressed to make 9:00 a.m. on Sundays.” The mother also sought clarification as to the documentation required to prove a change of residency. Upon receipt of the proposed order, Family Court was notified of the mother’s objections by written correspondence, specifically, that the mother objected to the father’s exchange times and, further, to providing multiple documents to prove her residency. The mother clearly did not consent to the terms contained in the amended order, and, thus the order was appealable. Consequently, because the amended order failed to set forth the terms to which the parties agreed in open court, it was modified accordingly.
Supreme Court
Supreme Court holds that Claim for spousal support that was necessary prior to spouse’s death does not abate upon death of spouse.
In Dean v Dean, --- N.Y.S.3d ----, 2020 WL 769994, 2020 N.Y. Slip Op. 20042 2020 WL 769994 (Sup. Ct., 2020) the Supreme Court held that a claim for spousal support under Article 4 of the Family Court Act abates upon the death of a party. However, it does not abate the claim for support that was necessary prior to the spouse’s death. If the decedent was entitled to support under New York law and experienced hard times during the pendency of this action, that claim survives her death and can be maintained by her representative, the executor.
February 16, 2020
Appellate Division, First Department
Best Interest of the Child test applies to relocation petition where no prior custody order.
In Michaels v Michaels, --- N.Y.S.3d ----, 2020 WL 536320, 2020 N.Y. Slip Op. 00815 (1st Dept., 2020) the Appellate Division held that where there is no prior custody order in place at the time of the relocation petition, the test that should be applied is that of the best interests of the children, and relocation is but one factor in determining the children’s best interests (see Matter of Michael B. [Lillian B.], 145 AD3d 425, 430 [1st Dept 2016]; see also Arthur v. Galletti, 176 AD3d 412 [1st Dept 2019]; Matter of Saperston v. Holdaway, 93 AD3d 1271 [4th Dept 2012], appeal dismissed 19 NY3d 887 [2012]).
Counsel Fee Award to Wife Precluded by failure to comply with 22 NYCRR 1400.3
In Adjmi v Tawil, --- N.Y.S.3d ----, 2020 WL 573175, 2020 N.Y. Slip Op. 00911 (1st Dept.,2020) the Appellate Division affirmed a judgment which, inter alia, directed plaintiff husband to pay $7,000 monthly in child support and the parties’ child’s tuition at a Jewish day school from preschool through 12th grade. The trial record demonstrated that the child support award amply provided for the child’s actual needs. As the parties separated while defendant was still pregnant, it could not be said that a standard of living was established for the child. Contrary to defendant’s contention, plaintiff’s wealth alone was insufficient to warrant doubling the child support award. The trial court providently exercised its discretion in directing plaintiff to pay 100% of the child’s tuition at a Jewish day school from preschool through 12th grade (see Domestic Relations Law § 240[1–b] [c][7]). The evidence established that two of defendant’s children and three of plaintiff’s children attended Jewish day schools and that plaintiff actively supported religious education and could afford the tuition.
The Appellate Division reversed the award of counsel fees to defendant because it was is precluded by her attorney’s failure to comply with the rules pertaining to domestic relations matters (22 NYCRR part 1400). Defendant was represented in these matrimonial proceedings by her father, a patent lawyer, for more than a year. She did not execute a retainer agreement until shortly before the trial, and she testified that her father had never sent her an itemized bill (see 22 NYCRR 1400.3).
Appellate Division, Fourth Department
Appellate Division treats decision appealed from as an appealable order
In Nicol v Nicol, --- N.Y.S.3d ----, 2020 WL 501424, 2020 N.Y. Slip Op. 00740 (4th Dept., 2020) the Appellate Division held that the court erred in summarily denying the plaintiffs motion insofar as it sought a downward modification of his child support obligation with respect to the health insurance premiums, on the ground that plaintiff had, in effect, implicitly waived his right to seek a downward modification by failing to take remedial action after defendant informed him of the cost increase for the children’s health insurance premiums. It is well settled that a waiver “‘should not be lightly presumed’ and must be based on ‘a clear manifestation of intent’ to relinquish” a known right. Plaintiff’s inaction here did not constitute a waiver inasmuch as inaction or silence cannot constitute a waiver.
The dissent disagreed with the majority’s decision to treat the decision appealed from as an order, and field a dissent. It observed that in 1987, this Court held that “[n]o appeal lies from a mere decision” (Kuhn v. Kuhn, 129 A.D.2d 967, 967, 514 N.Y.S.2d 284 (4th Dept. 1987)). In reaching that conclusion, it relied on, inter alia, CPLR 5512(a), titled “appealable paper,” which provides that “[a]n initial appeal shall be taken from the judgment or order of the court of original instance.” Until today, it had routinely followed that settled principle as do all of the other Departments of the Appellate Division, as well as the Court of Appeals. Here, the record included a decision that was denominated only as a decision and has no ordering paragraphs and, in his notice of appeal, plaintiff explicitly appealed “from the Decision”. The majority believed that the decision was an appealable paper because it meets “the essential requirements of an order.” To support that proposition, the majority relied on Matter of Louka v. Shehatou, 67 A.D.3d 1476, 888 N.Y.S.2d 841(4th Dept. 2009) ), where this Court determined that a letter would be treated as an order inasmuch as “the Referee filed the letter with the Family Court Clerk and ... the letter resolved the motion and advised the father that he had a right to appeal”. Although the decision here was filed and resolved the motion, there was no directive in the decision that plaintiff had the right to appeal from it. Thus, under the majority’s determination, an appeal may lie from a mere decision if it was filed and if it resolved the issues presented by the parties, the appealable paper no longer needs to be labeled as an order and it no longer needs any ordering paragraphs, and the appellant can still appeal even if he or she refers to the paper on appeal as a “decision” in the notice of appeal.
February 1, 2020
Appellate Division, First Department
Non-voluntary union dues may be deducted from income for calculating child support
In Matter of Julien v Ware, --- N.Y.S.3d ----, 2020 WL 356132, 2020 N.Y. Slip Op. 00414 (2020) a child support proceeding the Appellate Division held that although no deduction from income for union dues is specifically mandated by the Family Court Act, there is an allowable deduction for “unreimbursed employee business expenses except to the extent said expenses reduce personal expenditures” (Family Ct Act § 413[1][b][5][vii][A] ). Nonvoluntary union dues may be deducted under this category (see 33A Am Jur 2d, Federal Taxation ¶ 16502). However, such expenses are properly deducted from parental income in calculating child support obligations only when proven, usually by tax returns accompanied by records and receipts.
Non-custodial Parent May Commence Support Proceeding
In Matter of Anthony S v Monique T.B., --- N.Y.S.3d ----, 2020 WL 283492, 2020 N.Y. Slip Op. 00382 (1st Dept., 2020) the Appellate Division held that the Family Court Act (FCA) does not prohibit a non-custodial parent from commencing a support proceeding (see FCA § 422[a] [“A parent or guardian, of a child, or other person in loco parentis, . . . may file a petition in behalf of a dependent relative”]). While a shared custodial arrangement, the custodial parent cannot be required to pay child support as a matter of law (Rubin v. Della Salla, 107 AD3d 60, 67 [1st Dept. 2013]), the unusual facts of this case did not demonstrate a shared custodial arrangement. Respondent was admittedly the non-custodial parent and had not contributed toward the children’s support since the filing of the petitions; no other party has stepped forward to file a support petition, including the paternal grandmother who respondent claimed was acting as the children’s primary caretaker; and no evidence was submitted that either child was emancipated for the purposes of child support at the time the petitions were filed. Under the circumstances, there was no reason to disturb the Support Magistrate’s determination that petitioner was credibly seeking support on behalf of the subject children and their paternal grandmother (see, e.g. Matter of Nasir J., 35 AD3d 299 [1st Dept. 2006]).
Appellate Division, Second Department.
Second Department holds it is Not error to allow interpreter for non-English speaking litigant to appear by Skype
In Matter of Omnamm L v Kumar L, 177 A.D.3d 973, 113 N.Y.S.3d 186, 2019 N.Y. Slip Op. 08563 (2d Dept.,2019) an abuse proceeding, the Appellate Division held that the Family Court did not err in proceeding with the fact-finding hearing on the first day, when the interpreter appeared remotely over Skype. Non–English speaking litigants are entitled to an interpreter at proceedings to enable them to participate meaningfully in their trial and assist in their own defense. The procedures utilized by the court allowed the father to meaningfully participate in the hearing (see 22 NYCRR 217.1[a]).
Hair follicle testing records are admissible if the recipient can establish personal knowledge of the maker’s business practices and procedures, or establish that the records provided by the maker were incorporated into the recipient’s own records and routinely relied upon by the recipient in its own business
In Matter of Sincere S.,176 A.D.3d 1072, 113 N.Y.S.3d 91, 2019 N.Y. Slip Op. 07588 (2d Dept.,2019) the Appellate Division agreed with the Family Court’s determination that the hair follicle testing records were admissible. While the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records. (Bank of N.Y. Mellon v. Gordon, 171 A.D.3d 197, 209), such records may be admitted into evidence if the recipient can establish personal knowledge of the maker’s business practices and procedures, or establish that the records provided by the maker were incorporated into the recipient’s own records and routinely relied upon by the recipient in its own business (Bank of N.Y. Mellon v. Gordon, 171 A.D.3d at 209, 97 N.Y.S.3d 286). The DSS presented testimony from a case manager of the Family Court Treatment Alternatives for Safer Communities program that the hair follicle test results provided by an outside laboratory were incorporated into her office’s reports and routinely relied upon to issue hair follicle test reports. Thus, the DSS established the admissibility of the hair follicle test results admitted as Petitioner’s Exhibits 5 and 6 (see State of New York v. 158th St. & Riverside Dr. Hous. Co., Inc., 100 A.D.3d 1293, 1296, 956 N.Y.S.2d 196). The DSS also established the admissibility of the hair follicle test reports admitted as Petitioner’s Exhibits 3 and 4 by establishing that each participant in the chain that produced the reports acted within the course of regular business conduct (see Family Ct Act § 1046[a][iv]; Matter of Grace J. [Louise J.], 140 A.D.3d 1166, 1167, 33 N.Y.S.3d 758).
Appellate Division, Third Department
No credit against child support and maintenance for interim support where husband already obligated by contract for those payments
In Allen v Allen, --- N.Y.S.3d ----, 2020 WL 239080, 2020 N.Y. Slip Op. 00331 (3d Dept., 2020) Plaintiff (wife) and the defendant (husband) were married in 1999 and had four children. The wife commenced the action for divorce in January 2013. The Appellate Division, among other things, rejected the husbands argument that Supreme Court erred in failing to provide him a credit against his child support and maintenance obligations because he paid for the wife’s shelter costs, including property taxes, homeowner’s insurance and electricity bills while she and the children resided in the marital residence. Because the husband was already contractually obligated to pay these expenses on his separate property, and a party in a dispute over child support or maintenance cannot get credit for performing their own pre-existing legal obligations to third parties, this contention had no merit.
The Appellate Division held that Supreme Court did not abuse its discretion in holding the wife’s child support payments to the husband in abeyance until the husband paid, in full, any amounts due to the wife pursuant to the judgment of divorce. The husband expressed hostility regarding his court-ordered obligation to pay the wife maintenance, stating that he would rather go to jail than pay maintenance. Due to this refusal, a large sum of arrears had accrued that resulted in a judgment to the wife for nearly $45,000. Therefore, given the rationale for holding the wife’s child support obligation in abeyance, it did not find that Supreme Court abused its discretion.
January 16, 2020
Court Rules
NY Order 20-0001 amended the Local Rules of the Appellate Division, Second Department dealing with the mediation program.
22 NYCRR 670.3 (d) (2) (ii) was amended to require that Counsel with knowledge of the matter on appeal and who is prepared to engage in meaningful settlement discussions is required to attend the mediation. (d) (ii) (v) was amended to provide that failure of the parties to the appeal and/or their counsel with knowledge of the matter on appeal who is prepared to engage in meaningful settlement discussions to appear or to appear on time may result in the imposition of sanctions.
The amendments read as follows:
22 NYCRR § 670.3. Initial Filings; Active Management of Causes; Settlement or Mediation Program
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(d) Mandatory Civil Appeals Mediation Program
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(2) Mandatory Mediation; Notice of Reference
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(ii) Upon such designation, the Clerk of the Court, shall cause to be issued a Notice of Reference, which shall direct the parties to the appeal and their counsel, as well as any other individual whose attendance the court may require, to attend an initial, ninety-minute session, without charge, before a designated Special Master identified in that Notice. The Notice of Reference shall set forth the date, time, and place of the initial mediation session. Counsel with knowledge of the matter on appeal and who is prepared to engage in meaningful settlement discussions and parties who are natural persons are required to attend the mediation in person, In the event that a party is not a natural’ person but a legal entity, such as a corporation or limited liability company, such entity is required to have present at the mediation a representative of the entity who has the authority to make binding decisions on behalf of the entity.
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(v) Mediation sessions shall be deemed appearances before this court. Failure of the parties to the appeal and/or their counsel with knowledge of the matter on appeal who is prepared to engage in meaningful settlement discussions to appear or to appear on time may result in the imposition of sanctions pursuant to Part 130 of the Rules of the Chief Administer of the Courts (22 NYCRR Part 130). The initial mediation session shall constitute an actual engagement before this court for the purposes of Part 125 of the Rules of the Chief Administrator of the Courts (22 NYCRR Part 125).
New Form added to Uncontested Divorce Packet
By Administrative order 284-2019 a Short Form Application for Child Support Services in Supreme Court was adopted effective December 1, 2019, for use in uncontested divorce actions.
Appellate Division, Second Department
Father deprived of the effective assistance of counsel in enforcement proceeding. Appropriate standard to apply in evaluating a claim of ineffective assistance is “meaningful representation standard”
In Matter of Miller v. DiPalma, --- N.Y.S.3d ----, 2020 WL 88886, 2020 N.Y. Slip Op. 00140 (2d Dept.,2020) the Appellate Division held that the father was deprived of the effective assistance of counsel at a hearing on the mother’s petition for violation of an order of child support. In support proceedings such as this one, “the appropriate standard to apply in evaluating a claim of ineffective assistance is the meaningful representation standard” (Matter of Nassau County Dept. of Social Servs. v. King, 149 A.D.3d 942, 944, 53 N.Y.S.3d 130). Here, the father’s defense at the hearing was that because of a back injury, he was unable to continue working as a mail carrier beginning in January 2018 and that, prior to obtaining a new position at the post office in March 2019, he searched for different work. Notably, despite being advised on multiple occasions that the father was required to provide a financial disclosure affidavit, tax forms, proof that he was diligently searching for employment, and certified medical records, counsel failed to procure the father’s medical records or provide the court with any relevant financial documentation. The father’s counsel also failed to call any witnesses to testify as to the effects of the father’s back injury, subpoena his treating physician, or obtain a medical affidavit. The Family Court made specific reference to the lack of any credible medical testimony, financial disclosure affidavit, tax returns, or proof of a job search in its determination that the father failed to refute the mother’s prima facie showing of willfulness. The Appellate Division held that Counsel’s failure to obtain relevant medical information or to procure financial and job search records that may have supported the father’s contention constituted a failure to meaningfully represent the father, and he is entitled to a new hearing on the violation petition.
Appellate Division, Third Department
In absence of parties’ actual separation at time of execution of separation agreement or immediately thereafter, separation agreement is void ab initio. Provision that agreement not invalidated without a subsequent writing void where agreement itself, rather than any of its components, is brought to an end. Use of marital funds to pay trial counsel is not a waste of assets.
In Martin v Martin, --- N.Y.S.3d ----, 2019 WL 7173295, 2019 N.Y. Slip Op. 09345 (3d Dept., 2019) the parties were married in 1991, and executed a separation agreement in 2005 that provided for the distribution of their assets, but continued to live together until 2015. The wife commenced the action in October 2015, with the husband counterclaiming for a declaration that the separation agreement was void. After trial, the Supreme Court determined that the parties’ separation agreement was void, distributed the marital assets and debts, and awarded the husband $25,000 in counsel fees.
The Appellate Division held, inter alia, that Supreme Court properly found that the separation agreement was void. It is fundamental that, in the absence of the parties’ actual separation at the time of execution of a separation agreement or immediately thereafter, a separation agreement is void ab initio. The parties lived together for a decade after entering into the separation agreement and, although more than mere cohabitation was required to render the agreement void (Rosenhaus v. Rosenhaus, 121 A.D.2d 707, 708, 503 N.Y.S.2d 892 [1986], they also filed joint tax returns, maintained a joint checking account and had joint credit cards. Supreme Court further credited the testimony of the husband that the parties lived as a married couple and that the wife handled their financial affairs throughout that period, as well as that they only executed the separation agreement so that the wife could take out more college loans for her daughters from a previous marriage. To the extent that the wife raised the issue, the provision in the separation agreement providing that the agreement shall not be invalidated without a subsequent writing was itself void where, as here, the agreement itself, rather than any of its components, is brought to an end.
The Appellate Division held, inter alia, that Supreme Court abused its discretion finding that the wife wastefully dissipated or improperly transferred marital funds that she deposited in a separate account around the time this action was commenced, insofar as $15,000 of the funds were legitimately paid to her trial counsel.
Finally, Supreme Court was within its right to direct that the distributive award to the husband be reduced to a money judgment and authorize a qualified domestic relations order so that those monies could be deducted from the wife’s pension.
Non-biological, non-adoptive partner had standing, as a parent, to seek visitation and custody under Domestic Relations Law § 70. Family Court did not err in applying the conception test to determine petitioner’s standing without regard to her subsequent relationship with the child.
In Matter of Heather NN v Vinette OO, 2019 WL 7173471 (3d Dept.,2019) Petitioner commenced a proceeding in 2016 seeking joint legal custody and parenting time, following the issuance of Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488 (2016)). Family Court found that petitioner had standing to seek legal custody and parenting time. The court granted sole legal custody and physical placement of the child to the respondent and awarded parenting time to petitioner in a graduated schedule of parenting time, to begin with one-hour weekly in therapeutic counseling sessions for eight weeks.
Respondent was the biological mother of a child (born in 2008) who was conceived via artificial insemination during a same-sex relationship between respondent and petitioner. The parties separated in 2009, approximately one year after the child’s birth, and the child remained with the respondent. Respondent permitted petitioner to have parenting time for approximately two years, but then terminated all visitation. Thereafter, respondent occasionally sent pictures of the child to petitioner and permitted petitioner to speak with the child on the telephone, but directed petitioner not to use her real name or tell the child who she was. The petitioner had not been allowed any parenting time since 2010. Petitioner and respondent met in 2004 at a counseling facility in Brooklyn where petitioner was required to undergo substance abuse counseling. The parties entered into an intimate relationship and, after petitioner completed her counseling in 2005, respondent moved from Brooklyn to the City of Binghamton, to live with petitioner in a home that petitioner owned there. Several months after respondent began residing with petitioner, petitioner’s home was searched pursuant to a warrant and petitioner was arrested for the sale of narcotics. She was incarcerated for approximately 14 months in 2006 and 2007. The parties continued their relationship during this period. Respondent continued to reside in petitioner’s home, visited petitioner regularly, and used a power of attorney to manage petitioner’s business affairs, including several rental properties. Respondent wrote letters to petitioner – subsequently admitted into evidence – in which respondent stated her desire to marry petitioner and have children with her. Following petitioner’s release, the parties agreed to conceive a child using artificial insemination. Both parties attended appointments with a fertility doctor. There were two inseminations; petitioner was present and injected the sperm on at least one of these occasions. Petitioner’s credit card was used to pay the related expenses. Petitioner attended at least one baby shower where friends and family members of both parties were present. Petitioner attended respondent’s prenatal appointments, was present when the child was born, and cut the child’s umbilical cord. The child was given two last names, reflecting the parties’ two surnames. Petitioner testified that the child was named, in part, after petitioner’s mother. Petitioner assisted in buying items for the child and shared day-care costs with respondent. The two parties were listed as the child’s two mothers in some of her medical and immunization records. Respondent testified that she told petitioner that the child would be part of petitioner’s life if they continued to reside together and also if they separated, so long as petitioner did not engage in illegal activities, but that if petitioner did so engage, she would not have a role in the child’s life.
The Appellate Division observed that in 2016 the Court of Appeals expanded the statutory definition of a parent, holding that when a biological parent’s former partner “shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70” (Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d at 14, 39 N.Y.S.3d 89, 61 N.E.3d 488. The Court declined to find that any single test would cover all potential circumstances and held open the possibility that parenthood could also be established by other means. Upon this record, the Appellate Division held that Family Court correctly determined that petitioner fell within the statutory definition of a parent and, thus, had standing in this proceeding. Contrary to respondent’s argument, Family Court did not err in applying the conception test to determine petitioner’s standing rather than a “functional” test that would have examined the relationship between petitioner and the child after the child’s birth (Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d at 27, 39 N.Y.S.3d 89, 61 N.E.3d 488). The evidence fully established that the parties planned jointly for the child’s conception, participated jointly in the process of conceiving the child, planned jointly for her birth, and planned to raise her together. Petitioner satisfied her burden to prove by clear and convincing evidence that she and respondent entered into an agreement to conceive the child and raise her as co-parents. Thus, she established her standing to seek custody and parenting time under the conception test without regard to her subsequent relationship with the child.
Commentary
According to some commentators, in the last twenty-five years the de facto parent doctrine has made inroads on parental authority. A growing number of states have given rights to de facto parents to seek custody or visitation, using that term or similar terms such as “in loco parentis,” “psychological parent,” “equitable parent,” and establishment of a “child-parent relationship.” At least twenty-eight states have granted such rights by statute or case law.
Tuesday, March 31, 2020
Saturday, January 11, 2020
Recent Decisions and Legislation January 1, 2020
January 1, 2020
The
October 2019 update to my 9 volume treatise, Law and The Family New York, 2d has been released and is available
on the Thomson Reuters website bookstore.
The New York Matrimonial Trial Handbook is available in Bookstores and online at the Bookbaby
Bookstore, Amazon, Barnes & Noble, Goodreads, and
other online booksellers. For information click
on this link. It is also available in Kindle ebook
editions and electronic editions at the Joel R. Brandes Consulting Services and Bookstore website.
Recent
Legislation
Laws of 2019, Ch 732 amended Family Court Act §§1055 and 1089 as well
as of the Social Services Law section 358-a
Laws of
2019, Ch 732 amended Family Court Act §§1055 and 1089 as well as of the Social Services Law section
358-a, to require an agency with which a child has been placed, either
voluntarily or as a result of an abuse or neglect finding, or to whom guardianship
and custody has been transferred as a result of the child being freed for
adoption, to report to the attorney for the child not later than ten days in
advance of any change in the child's placement status and not later than the
next business day in any case in which an emergency placement change has been
made. According to the memorandum in support of the legislation, first, it
requires a report within five days of the date that any report of abuse or
maltreatment is found to be indicated. Indicated reports include those naming
the child and, where the subjects of the reports involve the person or persons
caring for the child, reports naming other children in the home. It contains an important proviso that such
reports notify the recipients that the information shall be kept confidential,
shall be used only in connection with the child protective, foster care or
related proceedings under the Family Court Act and may not be re-disclosed
except as necessary for such proceeding or proceedings and as authorized by
law. Second, recognizing that fairness also dictates that such notifications be
made to the attorneys for all parties, not simply the attorneys for the
children, the measure requires that, except in cases involving children freed
for adoption, both notices of changes in placement and indicated child
maltreatment reports be conveyed to attorneys for the birth parents. Family
Court Act §1017 was amended by adding a new subdivision 5. Family Court Act,
§1055 (b)(E) was repealed. Family Court Act § 1055 was amended by adding a new
subdivision (j). Family Court Act 1089 (d) 2 (vii) was amended by adding a new
clause (H) and Social Services Law §358-a, subd. 3 was amended by adding a new
paragraph (g).
Laws of 2019, Ch 716, enacted and effective December 20, 2019, amended
Domestic Relations Law and the Civil Rights Law.
Domestic Relations Law section 15 was amended to amend
the
'Notice to Applicant', which appears on every application
for a marriage license, to include language that informs those seeking a
license that either or both spouses may elect to change their middle name to
his or her current last name, any former last name he or she has had, or the
last name of the other spouse. Domestic Relations Law section 14-a was amended
to include the option of changing a middle name on the marriage license. Civil
Rights Law section 65 was amended to provide that any person may elect to
resume the use of a former middle name upon divorce or annulment and that the
state shall not impose a fee to change the middle name on a state identifying
document due to a change in marital status. The purpose of the amendments is to
allow one or both parties to a marriage to elect to change their middle name on
their marriage license. According to the memorandum in support of the
legislation, many women and men are opting to change their last name upon
marriage but want to keep their former last name in some capacity. One popular way to accomplish this is to keep
the former last name as a new or second middle name. Many states allow for such
a change to occur with ease on the marriage license, but New York did not.
Laws
of 2019, Ch 712 enacted and effective on December 20, 2019, amended Domestic
Relations Law §11-a, subd. 1 a to allow the New York City clerk to designate
additional staff members as he or she deems necessary to officiate marriages.
Laws
of 2019, Ch 663, enacted on December 12, 2019, effective 90 days after it
becomes a law, amended Family Court Act § 812, subd. 5, and Criminal Procedure
Law § 530.11.
Family Court Act § 812 and Criminal Procedure Law § 530.11, include protections for alleged victims of domestic violence. The statutes placed responsibility upon law enforcement, prosecutors and the courts to ensure by written notice that victims are made aware of their rights, of the expectations they may have to obtain assistance from both the civil and criminal justice systems and of the remedies and resources available to them. The notice must be in writing in both English and Spanish and must recite the statutory language verbatim. The required language in the notice was overly complex. Family Court Act § 812 and Criminal Procedure Law § 530.11 were amended substantially simplify the language contained in the notice while, at the same time, expanding the breadth of information it provides. The amendment also provides that the notice be made available, at minimum, in plain English, Spanish, Russian and Chinese.
Laws
of 2019, Ch 627, enacted December 12, 2019, and effective immediately amended
CPLR 3215 (b) to outline the procedure for an inquest on a default judgment.
CPLR 3215
(b), as amended provides that a party entitled to judgment may be
permitted to submit, in addition to the proof required by CPLR 3215 (f), properly executed affidavits or
affirmations as proof of damages. However, if the defaulting party gives
reasonable notice that it will appear at the inquest, the party seeking damages
may submit any proof required by CPLR 3215 (f), by oral testimony of the witnesses in open court or,
after giving reasonable notice that it will do so, by written sworn statements
of the witnesses. If the party seeking judgment gives such notice and submits
proof by written sworn statements, he or she must make all of those witnesses
available for cross-examination.
Appellate Division, First
Department
In proceeding to establish
standing to assert parental rights in seeking visitation under Domestic
Relations Law § 70, the court has the discretion to direct “more monied” party
to pay the other party’s counsel fee
In
Kelly G v Circe H, --- N.Y.S.3d ----, 2019 WL 6869009 (1st
Dept.,2019), the Appellate Division held, as a matter of first impression for
the Court, that, in a proceeding to establish standing to assert parental
rights in seeking visitation and custody under Domestic Relations Law § 70, the
court has the discretion to direct the “more monied” party to pay the other
party’s counsel and expert fees under Domestic Relations Law § 237 before that
party has been adjudicated a parent. It affirmed the order granting
respondent’s cross-motion for interim counsel fees to the extent of awarding
her $200,000. The Appellate Division observed that Domestic Relations Law §
237(b), provides, in relevant part, that “upon any application ... concerning
custody, visitation or maintenance of a child, the court may direct a spouse or
parent to pay counsel fees and fees and expenses of experts directly to the
attorney of the other spouse or parent to enable the other party to carry on or
defend the application or proceeding by the other spouse or parent as, in the
court’s discretion, justice requires....” This statute, like Domestic Relations
Law § 70, does not define the term “parent.” In holding that Domestic Relations
Law § 70 “permits a non-biological, non-adoptive parent to achieve standing to
petition for custody and visitation” (Brooke S.B., 28 NY3d at 27), the Court of
Appeals stressed that it “has gone to great lengths to escape the inequitable
results dictated by a needlessly narrow interpretation of the term ‘parent’ ”
(Brooke S.B. at 24). Consonant with that approach, it found that highly inequitable
results would flow in this case from permitting the party with far greater
resources to seek custody as against the child’s primary parent without
allowing that parent to seek counsel fees. Without determining that she is a
parent for purposes beyond the application of Domestic Relations Law § 237(b),
it found that Domestic Relations Law § 237(b) must be read to permit the court
to direct the petitioner to pay respondent’s counsel fees as necessary “to
enable [her] to ... defend the application ... as, in the court’s discretion,
justice requires, having regard to the circumstances of the case and of the
respective parties.”
Appellate Division, Second
Department
Supreme Court has the discretion
to consider the application for counsel fees, made in opposition papers without
a cross-motion
In
Ospina–Cherner, v. Daniel Cherner, --- N.Y.S.3d ----, 2019 WL 7160518 (2d
Dept.,2019) the Appellate Division held that
Supreme Court had the discretion to consider the defendant’s application
for an award of attorney’s fees, made in his opposition papers to the subject
motion, even though he did not make a cross-motion under CPLR 2215 (see Fried
v. Jacob Holding, Inc., 110 AD3d 56, 65).
Appellate Division, Fourth
Department
22 NYCRR part 202 provisions
do not apply to proceedings in the Family Court
In
Lopez v Lopez, --- N.Y.S.3d ----, 2019 WL 7044566 (4th Dept., 2019)
the Appellate Division rejected the father’s challenges to the order of
reference in this visitation proceeding. The father’s “ ‘argument that the
court erred when it referred this matter to a referee( to hear and report ) in
the absence of exceptional circumstances (see CPLR 4212) was waived, since the
record established that [he] participated in the proceeding before the
[R]eferee without objection. Contrary to the father’s further contention, the
alleged failure of the order of reference to comply with 22 NYCRR 202.43(d) and
22 NYCRR 202.44(a) did not affect its validity because, with one exception not
applicable here (see 22 NYCRR 202.16), “the provisions of 22 NYCRR part 202
apply only to ‘civil actions and proceedings in the Supreme Court and the
County Court,’ not to proceedings in the Family Court” (McDuffie, 154 AD3d at
1309, quoting 22 NYCRR 202.1[a]; see Matter of McDermott v. Berolzheimer, 210
A.D.2d 559, 559–560 [3d Dept 1994] ). It also rejected the father’s contention
that the order on appeal must be reversed because the court confirmed the
Referee’s report before the expiration of the 15–day period set forth in CPLR
4403.
Although PAS is not routinely
accepted as a scientific theory by New York courts the Court recognizes the effects
of alienating behaviors by a parent
In Matter of Krier v Krier, ---
N.Y.S.3d ----, 2019 WL 7043498, 2019 N.Y. Slip Op. 09129 (4th
Dept.,2019) the Appellate Division affirmed an order which granted the father
sole legal and physical custody of the child. It concluded that the father
established a sufficient “change in circumstances to warrant an inquiry into
the best interests of the child” based on both the expert testimony that the
child was demonstrating elements of parental alienation and “‘the continued
deterioration of the parties’ relationship’. It concluded that there was a
sound and substantial basis for the determination that an award of sole custody
to the father was in the child’s best interests. The court properly weighed the
relevant factors and found that all weighed in favor of placement with the
father except the child’s wishes. Although the child was 15 years old at the
time of the hearing, the court properly determined that his wishes were not
entitled to great weight since the child was so profoundly influenced by his
mother “that he cannot perceive a difference between” the father’s abandonment
of the marriage and the father’s abandonment of him and that it was in the
child’s best interests to reside with the father despite his wishes to the
contrary. Contrary to the contention of
the mother and the AFC, the court did not improperly rely on the presence of
“parental alienation syndrome” (PAS) in making its custody determination. The
father’s expert did not conclude that PAS, as a diagnosis, existed in this case
and rather testified that the type of conduct in which the mother engaged
resulted in the child becoming alienated from the father. Although PAS is not
routinely accepted as a scientific theory by New York courts (see Matter of
Montoya v. Davis, 156 AD3d 132, 135 n 5 [3d Dept 2017]), the Court has
repeatedly recognized the effects of alienating behaviors by a parent on
children in custody and visitation determinations.
The
Appellate Division agreed with the mother and the AFC that the court exceeded
its jurisdiction in suspending maintenance payments to the mother since the
parties’ separation agreement setting forth that obligation is an independent contract.
Family Court is a court of limited jurisdiction and cannot exercise powers
beyond those granted to it by statute, and “[i]t generally has no subject
matter jurisdiction to reform, set aside or modify the terms of a valid
separation agreement” (Johna M.S., 10 NY3d at 366).
Fourth Department allows
attorneys fees by affidavit holding “attorney’s fees should not be awarded
without a hearing or requiring proof by affidavit substantiating the attorney’s
fees requested”.
In
Brinson v Brinson, --- N.Y.S.3d ----, 2019 WL 7043519 (4th Dept.,
2019) the Appellate Division held that the court should have conducted an
evidentiary hearing before granting respondent’s application for an award of
his attorney’s fees since respondent failed to furnish sufficient documentation
of the value of the services performed by the attorney. This issue was
preserved since petitioner contested previous requests for attorney’s fees, at
the final appearance respondent first requested the $3,000 in attorney’s fees
but submitted no supporting documentation, and the petitioner was not afforded
an adequate opportunity to dispute the same. It held that attorney’s fees
should not be awarded without conducting a hearing or requiring proof by affidavit
substantiating the attorney’s fees requested. (Moses v. Moses, 231 A.D.2d 850,
850 [4th Dept 1996]; see Matthews v. Matthews, 238 A.D.2d 926, 927 [4th Dept
1997]). An award for attorney’s fees is improper absent documentation of the
submitted value of the services performed (see Johnston v. Johnston, 63 AD3d
1555, 1556 [4th Dept 2009]; Marshall v. Marshall, 1 AD3d 323, 324 [2d Dept
2003]; cf. Ackerman v. Midura, 145 AD3d 647, 648 [2d Dept 2016] ). Thus, it
concluded that “it was an abuse of discretion to award the amount of counsel
fees requested, without affording [petitioner] the opportunity to elicit
further information on the reasonable value of those services” (Matter of Kobel
v. Martelli, 112 A.D.2d 756, 757 [4th Dept 1985]). It modified the order and
judgment by vacating the award of attorney’s fees and remitted the matter to
Supreme Court for a determination regarding attorney’s fees based upon proper
proof (see Matthews, 238 A.D.2d at 926; Moses, 231 A.D.2d at 850).
December 16, 2019
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We are looking to establish an
“of counsel” relationship with a Manhattan law firm.
Recent Legislation
Laws of 2019, Ch 623, enacted December 12, 2019
amended the Family Court Act § 657(c) to include non-parents with lawful orders
of custody as persons who may make medical decisions for minors in their care.
Laws of 2019, Ch 623, amended the Family Court Act §
657(c) to add persons possessing a lawful order of custody as persons who have
the right and responsibility, alongside the current provision of
those possessing a lawful order of guardianship, to make medical decisions and
necessary consents regarding the child in their care. It also amended Public
Health Law Section 2504(4) to include non-parents with lawful orders of custody
along with parents and guardians as persons whose consent is not needed for the
provision of medical, dental, health and hospital services when in the
Family Court Act § 657 (c) provides:
(c) Notwithstanding any other provision of
law to the contrary,
persons possessing a lawful order of
guardianship or custody of a child
shall have the right and responsibility to
make decisions, including
issuing any necessary consents, regarding
the child's protection, educa-
tion, care and control, health and medical
needs, and the physical
custody of the person of the child.
Provided, however, that nothing in
this subdivision shall be construed to limit
the ability of a child to
consent to his or her own medical care as
may be otherwise provided by
law.
Laws of 2019, Ch
62, enacted December 12, 2019 and effective immediately amended CPLR 3215 (b)
to outline the procedure for an inquest on a default judgment.
A defendant who defaults in appearing concedes only
liability. Therefore, the defaulting defendant may still contest damages at an
inquest. In Rokina Opt. Co. v Camera
King, , 63 N.Y.2d 728, 730 supra, the Court of Appeals held that "judgment
against a defaulting party may be entered only upon application to the court
along with notice to the defaulting party and 'a full opportunity to
cross-examine witnesses, give testimony and offer proof in mitigation of
damages'."
As
amended, CPLR 3215 (b) provides that a party entitled to judgment may
be permitted to submit, in addition to the proof required by CPLR 3215 (f), properly executed affidavits or
affirmations as proof of damages. However, if the defaulting party gives
reasonable notice that it will appear
at the inquest, the party seeking damages may submit
any proof required by CPLR 3215 (f), by oral testimony of the
witnesses in open court or, after
giving reasonable notice
that it will
do so, by written sworn
statements of the witnesses. If the party seeking judgment gives such notice
and submits proof by written sworn statements, he or she must make all of those
witnesses available for cross-examination.
CRPL 3215(b) was amended to read as
follows:
(b)
Procedure before court. The
court, with or without a jury, may
make an assessment or take an account or
proof, or may direct a refer-
ence.
The party entitled to judgment may be
permitted to submit, in
addition to the
proof required by subdivision (f) of this section, prop-
erly executed
affidavits or affirmations as proof of damages, provided
that if the
defaulting party gives reasonable notice that it will appear
at the inquest,
the party seeking damages may submit any such proof by
oral testimony
of the witnesses in open court or, after giving reason-
able notice
that it will do so, by written sworn statements of the
witnesses, but
shall make all such witnesses available for cross-exami-
nation. When a reference is directed, the court may
direct that the
report be returned to it for further action
or, except where otherwise
prescribed by law, that judgment be entered
by the clerk in accordance
with the report without any further
application. Except in a matrimonial
action, no finding of fact in writing shall
be necessary to the entry of
a judgment on default. The judgment shall
not exceed in amount or differ
in type from that demanded in the complaint
or stated in the notice
served pursuant to subdivision (b) of rule
305 of this chapter.
Appellate Division, Second Department
Motion to modify
parties’ apportionment of responsibility for AFC’s fees should not have been
decided without evidentiary hearing
In Lee v Rogers, 2019 WL 6334018 (2d Dept.,2019) after the
Court of Appeals reversed the Appellate Divisions order, rejecting the adequate
relevant information standard, and determined that an evidentiary hearing was
required (see S.L. v. J.R., 27 N.Y.3d 558, 36 N.Y.S.3d 411, 56 N.E.3d 193) the
AFC moved, in effect, for an award of attorney’s fees. The plaintiff opposed
the motion and moved to modify the parties’ apportionment of responsibility for
the fees for the AFC. Supreme Court denied the plaintiff’s motion for
modification, and directed an evidentiary hearing on the reasonableness of the
AFC’s fees. Following the hearing, the court found that the fees were
reasonable, and entered an order awarding the AFC compensation of $34,624.65,
payable in equal shares by the parties.
The Appellate Division held that contrary to the
plaintiff’s contention, the difference in opinion between it (see Matter of
Plovnick v. Klinger, 10 A.D.3d 84, 781 N.Y.S.2d 360) and the Appellate
Division, Third Judicial Department (see Redder v. Redder, 17 A.D.3d 10, 792
N.Y.S.2d 201), as to whether attorneys for children may be compensated directly
by the children’s parents, rather than by the State, did not give rise to a
constitutional claim under the equal protection clauses of the state and
federal constitutions.
The Appellate Division held that contrary to the plaintiff’s contention, it
was appropriate for the AFC to make reasonable use of associates and support
staff to conduct legal research and other work, under the AFC’s direct
supervision, in connection with the appeal of the prior custody determination
before the Court and the Court of Appeals (see 22 NYCRR 36.4[c][5] ). It agreed
with the Supreme Court’s hearing determination finding that the fees requested
by the AFC were reasonable.
It held that plaintiff’s motion to modify the parties’
apportionment of responsibility for the AFC’s fees should not have been decided
without an evidentiary hearing. Because the affidavits submitted by the parties
provided sharply conflicting reports on the parties’ finances (see Anjam v.
Anjam, 191 A.D.2d 531, 532, 594 N.Y.S.2d 822) and there was “no evidence in the
record that the financial circumstances of the parties [had] ever been
considered, an evidentiary hearing should have been conducted before the motion
was decided.
It remitted the matter to the Supreme Court for an
evidentiary hearing on the parties’ respective finances, and a new
determination thereafter of the plaintiff’s motion.
Not error for
the Support Magistrate to impute to father the income of the father’s current
spouse
In
Matter of Fanelli v Orticelli, 2019 WL 6519694 (2d Dept.,2019) the Appellate
Division observed, that a support magistrate may impute income to a party based
on resources available to the party, including “money, goods, or services
provided by relatives and friends” (Family Ct. Act § 413[1][b][5][iv][D]). In
affirming an order which increased the fathers child support obligation it held
that it was not error for the Support Magistrate to impute to the father the
income of the father’s current spouse in the support calculation (see Matter of
Ladd v. Suffolk County Dept. of Social Servs., 199 A.D.2d 393, 394, 605
N.Y.S.2d 318; see also LiGreci v. LiGreci, 87 A.D.3d 722, 726, 929 N.Y.S.2d
253; Matter of Collins v. Collins, 241 A.D.2d 725, 727, 659 N.Y.S.2d 955).
Appellate Division, Third Department
Custody order reversed despite Family Court’s order being
supported by the current record, where the lack of an AFC prejudiced the child’s
interests
In
Matter of Marina C, v Dario D., --- N.Y.S.3d ----, 2019 WL 6331446, 2019 N.Y.
Slip Op. 53953 (3d Dept.,2019) despite Family Court’s order being supported by
the current record, the Appellate Division reversed and remitted for further
proceedings conducted with the involvement of an AFC. The Court pointed out
that it had previously noted that the
“appointment of an [AFC] in a contested custody matter remains the strongly
preferred practice,” while acknowledging that “such appointment is
discretionary, not mandatory” (Matter of Keen v. Stephens, 114 A.D.3d 1029,
1031, 981 N.Y.S.2d 174 [2014]. It has also “emphasized] the contributions
competent [AFCs] routinely make in contested matters; they not only protect the
interests of the children they represent; they can be valuable resources to the
trial court”. While advocating for the child, an AFC may provide a different
perspective than the parents’ attorneys, including through the presentation of
evidence on the child’s behalf, and may “recommend alternatives for the court’s
consideration.” Even absent a request, a court may appoint an AFC on its own
motion (see Family Ct Act § 249[a]). It noted that Family Court had appointed
an AFC for this child in connection with a previous proceeding that resulted in
a stipulated order made less than two months before the commencement of this
modification proceeding yet Family Court inexplicably did not appoint the same
or another AFC to protect the child’s interests. The Court found that the lack of an AFC prejudiced the child’s interests.
For example, the mother called the child’s therapist as a witness and no
objection was raised when the therapist testified regarding information that
the child had disclosed in therapy. Had an AFC been appointed, that attorney
presumably would have sought to protect the private and confidential nature of
the child’s discussions in therapy, rather than let the parents use the child’s
statements and therapist as weapons to support their own goals. The father also
testified regarding statements made by the child; an AFC could have objected to
those hearsay comments. Further, an AFC could have called additional witnesses,
asked questions of the witnesses called by the parties or presented other
evidence to elicit information that would support the child’s position. It held
that under the circumstances Family Court improvidently exercised its
discretion by failing to appoint an AFC, and such failure prejudiced the child.
It remitted for a new fact-finding hearing on the mother’s modification
petition, with the appointment and participation of an AFC.
Modified
stay-away order of protection pursuant to Family Ct Act § 1061 must reflect a
resolution consistent with best interests of the child and must be supported by
a sound and substantial basis in the record.
In
Matter of Andreija N, --- N.Y.S.3d ----, 2019 WL 6331396, 2019 N.Y. Slip Op. 53957
(3d Dept.,2019) petitioner, inter alia, commenced an abuse proceeding alleging
that respondent sexually abused the child. On July 20, 2018, Family Court)
issued a temporary stay-away order of protection against respondent prohibiting
any contact with the child (see Family Ct Act § 1029). This order of protection
was extended several times. In August 2018, the mother filed a petition seeking
sole legal and physical custody of the child. Thereafter, by consent of the
parties, a forensic psychologist was ordered to conduct a forensic interview of
the child in November 2018, and her report was submitted to the court. The
psychologist then completed a second report in May 2019. In both reports, the
psychologist concluded that there was no credible evidence that the father
sexually abused the child and recommended implementing the custody order. On
the first day of a combined fact-finding hearing on both petitions, both of the
psychologist’s reports were received into evidence on consent. Without any
testimony being taken, respondent, joined by the attorney for the child, then
moved to vacate the stay-away order of protection. Both petitioner and the
mother objected, and, after taking a brief recess, Family Court issued a ruling
from the bench vacating the stay-away order of protection, without explanation.
The court then issued a new temporary order of protection in May 2019 allowing
respondent to exercise unsupervised visitation pursuant to a parenting schedule
comparable to the custody order. The Appellate Division held that Family Court
abused its discretion by modifying the stay-away order of protection pursuant
to Family Ct Act § 1061. The modified order must reflect a resolution consistent
with the best interests of the child after consideration of all relevant facts
and circumstances and must be supported by a sound and substantial basis in the
record” (Matter of Yosepha K. [Chana D.], 165 A.D.3d 932, 933, 85 N.Y.S.3d 583
[2018] Although Family Court failed to articulate its reasoning for vacating
the stay-away order of protection, there were
several factors that led it to
conclude that the court did not have good cause to do so. The decision to
vacate the stay-away order of protection was made on the first day of trial
and, the record should have been further developed before a determination was
made as to whether it was in the child’s best interests to allow respondent
unsupervised, overnight parenting time. This was particularly so given
respondent’s ongoing, threatening behavior towards the mother and others via
text message and on social media. In a footnote the Court pointed out that
during the course of this dispute, respondent threatened multiple judges,
posted on social media prior to an appearance that he was “getting ready to
f*** up some justice and go to jail tomorrow,” posted a photo of himself
pointing a rifle equipped with a scope – in violation of the terms of the
stay-away order of protection – and posted, the night before the child’s
interview with the psychologist, “I know where and when so I’m packed up and
ready to take back what’s mine tomorrow. Thoughts and prayers.” Then, on the
day of the interview, respondent posted that he was “waiting at [the
psychologist’s location]. Started at 11:00 got about 45 minutes to an hour
until the sh** hits the fan. You all deserve what you get.”
In her reports, the psychologist confirmed that she
reviewed a series of emails and text messages between the parents and certain Facebook
postings of respondent. The psychologist noted that the mother perceived
respondent “as dangerous and threatening,” but did not produce any documentary
proof of violence. The psychologist characterized respondent’s “behavior and
statements [as] unconventional” and noted that “he has never been violent or
caused harm to [the child] or [the mother].” The Courts concern with these
observations was that domestic violence is not limited to physical violence. In
its view, respondent’s behavior and threats were alarming and demonstrated a
concerted effort to control and coerce the mother and others who were
associated with this custody case. As such, it believed that respondent’s
unabashed behavior evinced the hallmarks of domestic violence and should not have
been diminished as simply “unconventional” (see e.g. www.opdv.gov/domestic-violence/what-is-domestic-violence.html;
www.opdv.gov.publications/stalking-info guide). Given the need to further
develop this record, it concluded that Family Court’s determination was
premature and that good cause had not been shown to vacate the stay-away order
of protection.
In a footnote the Appellate Division stated that it
recognized that the record on appeal included petitioner’s order to show cause
submission to it seeking a stay pending appeal, which included respondent’s
text messages and Facebook postings. Respondent maintained that these documents
were not presented to Family Court and should not be considered as outside the
proper record on appeal (see CPLR 5526). The record was unclear as to whether
these submissions were before Family Court. The Court pointed out that the
general rule is that the Court may not consider matters outside the record,
i.e., materials not presented to the trial court (see Crawford v. Merrill
Lynch, Pierce, Fenner & Smith, 35 N.Y.2d 291, 298, 361 N.Y.S.2d 140, 319
N.E.2d 408 [1974]). Respondent, however, acknowledged in his brief that “all
the submissions ... were reviewed and considered by [the psychologist].”
Correspondingly, the psychologist included a list of documents considered,
including text messages and Facebook posts, and comments on certain of these
items. Given this context, and the paramount issue of the child’s best
interests, it held that it would consider this submission (see Crawford v.
Merrill Lynch, Pierce, Fenner & Smith, 35 N.Y.2d at 298–299, 361 N.Y.S.2d
140, 319 N.E.2d 408; Callahan v. Cortland Mem. Hosp., 127 A.D.2d 921, 922, 512
N.Y.S.2d 281 [1987]).
Family Court
In dismissing
Adult Adoption Petition, Family Court points out apparent inadequacy of the
official forms promulgated for adult adoptions
In Matter of the Adoption of Jalyssa L.-J., 2019 WL
6711559 (Family Ct., 2019)
a proceeding for the
adoption of an adult child by her aunt, the prospective adoptive parent
submitted a “Petition for Adult Adoption” (Adoption Form 29a) and a “Consent to
Adult Adoption by Adoptee” (Adoption Form 29b). The only other papers submitted
in support of the adoption were
purported copies of the birth certificates for both the proposed
adoptive parent and the adult adoptive child and a proposed Report of Adoption
(Form DOH-1928) promulgated by the Department of Health to notify it of a
completed adoption for the purpose of making a new birth certificate. See
Public Health Law § 4138. Family Court dismissed the petition for failure to
seek and obtain pre-certification as a qualified adoptive parent in accordance
with Domestic Relations Law § 115-d, see DRL § 115(1)(b), and for failure to
make any showing that the proposed adoption would be in the best interests of
the child. Id. § 116(2). In dismissing the petition, the Court pointed out the
apparent inadequacy of the official forms promulgated for adult adoptions. See
Family Ct. Act § 214; Uniform Rules for the Fam Ct (22 NYCRR) § 205.7(a). It
explained that while adult adoptions may be dealt with more liberally than
child adoptions, they are subject to the same statutory law as other adoptions.
Matter of Mazzeo, 95 AD2d 91, 92 (3d Dept 1983). The Court of Appeals has
observed, “an adult adoption must still be in the best interests of the
adoptive child and the familial, social, religious, emotional and financial
circumstances of the adoptive parents which may be relevant must still be
investigated. The Court explained that the only simplified statutory procedure
for adult adoptions is the elimination of the requirement for the consent of
the adoptive child’s legal parents and custodians. Matter of Anonymous, 106
Misc 2d 792, 797 (Fam Ct, Kings County 1981); see DRL § 111(4). However, the adult adoption petition form
does more than simply remove the references to parental consent that are found
in the standard form petition. The form also removes references to (1) the
religious faith and income of the adoptive parent(s); (2) the religious faith
of the adoptive child; (3) the heritage, religious faith, education and general
physical appearance of the birth parents; (4) the adoptive child’s medical history;
(5) the child protective history of the adoptive child and the adoptive
parent(s); and (6) the criminal history of the adoptive child and the adoptive
parent(s). All of this information is required either directly or indirectly by
statute and is necessary to determine the best interests of the adult adoptive
child. See DRL § 115, 115-d; 116; see also DRL § 112(3); 115(11).
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