Circumstances
of contemporary daily interactions between men and women, warrants that the
“opportunity” element of proof of adultery must be interpreted to mean more
that mere “proximity,” but must instead necessarily mean “proximity plus.”
In
Agulnick v Agulnick, --- N.Y.S.3d ----, 2020 WL 7234017, 2020 N.Y. Slip Op.
07335) the parties were married in 2004. The husband commenced an action for
divorce on October 3, 2018, alleging an irretrievable breakdown of the
marriage. The verified amended answer contained a counterclaim for divorce on
the ground of adultery under Domestic Relations Law § 170(4). The counterclaim
alleged that from approximately March of 2014 and thereafter the husband openly
engaged in an adulterous relationship with R.L., who slept in the marital home,
vacationed with the husband in Florida, resided with him in another marital
home in Florida, and accompanied him at social settings. The counterclaim
alleged that the husband’s activities included sexual intercourse and was without
the wife’s consent, connivance, privity, or procurement. The husband denied all
allegations of adulterous behavior in a reply dated February 1, 2019.The
husband moved, inter alia, for summary judgment dismissing that counterclaim
under CPLR 3212. In support, the husband proffered an affidavit in which he
stated that he “never engaged in a sexual relationship of any kind or nature
with” R.L., who he identified by full name in the papers as the family
babysitter. The husband further averred that the presence of R.L. in the
parties’ homes was “at all times ... in a professional working capacity,
approved and initiated by [the wife], wherein [R.L.] supervises our children.”
The motion was also supported by an affidavit of R.L., where she identified
herself as the babysitter and caretaker of the parties’ children, and stated
that she “never engaged in a sexual relationship of any kind or nature with”
the husband, and that “[a]ny and all times I have been in the [husband]’s
presence have been in a professional working capacity wherein I supervises
[sic] the parties’ children.” In opposition, the wife asserted in an affidavit
that the husband has “shown an inclination and desire to commit adultery” by
virtue of events that had admittedly occurred over a decade earlier. She also
stated that the husband had the opportunity to commit adultery, as R.L. had
vacationed with him during the marriage, spent a night at the marital residence
and at a vacation home while the husband was present, and accompanied the
husband at social functions. In reply, the husband and R.L. each provided
affidavits in further support of summary judgment dismissing the adultery
counterclaim. Both averred that R.L.’s overnight stays at the marital homes and
on vacation were always in a babysitter capacity with the children present,
that R.L. slept in a room at the marital home assigned to her by the wife, and
that R.L. always attended any social events in a babysitter capacity with the
wife and children present. Supreme Court denied the husband’s motion for
summary judgment dismissing the adultery counterclaim. The court determined
that the husband’s various submissions denying a sexual relationship with R.L.
were “conclusory and self-serving,” and, failed to meet his prima facie burden
on summary judgment.
The
Appellate Division reversed. Justice Dillon noted that allegations
of adultery present unique issues of proof. The conduct is oftentimes
clandestine and out of public view, and proving it in such instances must
depend upon circumstantial evidence. Recognizing this, decisional authority has
held that adultery may be circumstantially proven by means of a three-part test
consisting of (1) a lascivious desire, and (2) the opportunity to gratify the
desire, and (3) acting upon the desire. Other authorities similarly summarize
the three-part test as involving inclination, opportunity, and intent. The act
itself must also meet the requirements of Domestic Relations Law § 170(4),
which defines adultery “as the commission of an act of sexual intercourse, [or
other] sexual conduct, voluntarily performed by [a spouse], with a person other
than the [other spouse] after the [spouses’] marriage.” The case law that
exists regarding adultery is restricted to trial judgments and appeals for much
of the past century and more.
The
Court observed that the circumstantial evidence elements for adultery,
consisting of lascivious desire, opportunity, and intent, date back to a time
when women were not as routinely present in workplaces as they are now.
Currently, men and women work side-by-side at the great majority of workplaces.
They work in the same locations, attend meetings, share lunch rooms,
participate in professional events, interact in social, political, religious,
and charitable activities, exercise at gyms, and fly on airplanes together to
faraway seminars and business trips. In addition, certain employees may reside
at their employers’ homes including au pairs, household help, and home aides.
The Court held that under the circumstances of contemporary daily interactions
between men and women, the “opportunity” for infidelity cannot be interpreted
to mean mere “proximity,” but must instead necessarily mean “proximity plus.”
The “plus” need not be objective or irrefutable evidence. Instead, it may be
facts or evidence from which reasonable inferences may be drawn, beyond the
mere proximity of two people themselves. Proximity may be evidence sufficient
to defeat summary judgment if accompanied by something more, such as, a hotel
receipt for two, plane tickets for two to a particular destination deviating
from the norm, potentially incriminating or suspicious e-mails or other
writings, frequent get-togethers in non-professional settings, flirtatious
behavior, or a suspicious conversation overheard by a witness. Such facts or
evidence, beyond the mere temporal proximity of two persons, may permit an
inference that a party’s “acts are more consistent with guilt than with
innocence” (Trumpet v. Trumpet, 215 N.Y.S.2d 921, 924 [Sup. Ct., Kings County]
), and warrant the denial of summary judgment sought by the party accused of
adulterous behavior.
The
Court found that the husband met his prima facie burden of establishing his
entitlement to summary judgment dismissing the wife’s counterclaim alleging
adultery (see Westervelt v. Westervelt, 26 N.Y.2d 865, 309 N.Y.S.2d 604, 258
N.E.2d 98 [two persons living together in one-family household and their social
appearances together is insufficient circumstantial evidence to establish adultery].
In his affidavit, the husband stated that he “never engaged in a sexual
relationship of any kind or nature with” R.L, and that R.L.’s presence in his
various homes was “at all times ... in a professional working capacity.”
Although the husband’s affidavit failed to address conduct alleged with R.L.
while on vacation and at social events, R.L.’s affidavit, proffered by the
husband in support of his motion, did address such conduct. R.L. identified
herself in her affidavit as the babysitter for the parties’ children, denied “a
sexual relationship of any kind or nature” with the husband, and states that
she was in a professional working capacity at “[a]ny and all times ... in the
[husband]’s presence.” R.L.’s affidavit is more expansive and all-encompassing
than the husband’s affidavit to the extent that her denial of sexual conduct at
“any and all times” necessarily extends beyond the husband’s homes to other
settings, such as any vacation trip taken by members of the family and social
occasions that R.L. attended. As to all of those occasions, R.L. explained that
she was present to supervise the parties’ children and that she performed that
job during those occasions. The court disagreed with the Supreme Court that the
husband’s evidence in support of summary judgment dismissing the adultery
counterclaim was conclusory and self-serving. The husband’s affidavit and
R.L.’s separate affidavit contained specific averments which, read together,
corroborate each other and satisfy his prima facie burden
The
Court rejected the husbands argument that the wife’s affidavit should not be
considered in opposition to summary judgment dismissing the adultery
counterclaim. Because CPLR 4502(a) statutorily disqualifies a spouse from
testifying against the other spouse in an action grounded upon adultery, except
to prove the marriage, disprove the adultery, or disprove the defense after
evidence has been introduced tending to prove such defense (see CPLR 4502[a]).
The Court held that contrary to the husband’s contentions, the wife’s affidavit
in opposition to summary judgment may be properly considered, and had been
considered, as it was submitted to oppose the husband’s own evidence that the
adultery with R.L. had never occurred (cf. Tallent v. Tallent, 22 A.D.2d 988,
989, 254 N.Y.S.2d 722).
Court not required to inquire into his expenses on
indigents application for assigned counsel
In
Alphonse v Alphonse, --- N.Y.S.3d ----, 2020 WL 7233597, 2020 N.Y. Slip Op.
07374 (2d Dept.,2020) the Appellate Division held that where a party has the
right to the assistance of counsel (see Family Ct. Act § 262[a][v]) and
requests counsel on the grounds of indigence the court must make an inquiry to
determine whether the party is eligible for court-appointed counsel. Here, the
court properly inquired as to the father’s eligibility for court-appointed
counsel and instructed the father to submit certain documentation, including a
form detailing his financial circumstances. While the father listed his weekly
income on this form as $1,820, he failed to indicate on the form whether he
provided financial support to any other individuals, or any of his expenses,
aside from his monthly mortgage payments. As a result, the father failed to
fully and timely make the disclosure necessary to support his claim of
indigence. Contrary to the father’s contention, the court was not required to
inquire any further into his expenses, and it agreed with its determination
that he was not financially eligible for court-appointed counsel.
Laws of 2020
Laws of 2020, Ch 261, effective November 11,
2020 amended domestic relations law § 240 (3)(a)(8) and (9),
domestic relations law § 252 (1) (h) and (i), family court act §
352.3 (1), family court act § 446 (i) and (j), family court act §
551 (j) and (k), family court act § 656 (j) and (k), family court
act § 759 (g), (h) and (i); family court act § 842 (j)
and (k). family court act § 1056 (1) (h) and (i), criminal procedure
law § 530.12 (1)(a) (7), criminal procedure law § 530.12, (5) (c)
and (e), and a new paragraph (f) was added, criminal procedure law § 530.13
(1)(c) and criminal procedure law § 530.13 (4)(c) and a
new paragraph (d) was added, to provide that an order of protection
can be issued that requires that the respondent refrain from controlling any
connected devices affecting the home, vehicle or property of the person
protected by the order. "Connected device",
means any device, or other physical object that is capable of connecting
to the internet, directly or indirectly, and that is assigned an
internet protocol address or bluetooth address.
Laws
of 2020, Chapter 299 amended Family Court Act §§ 305.2 and 344.2
effective November 1, 2021, to require video recording of the
entirety of interrogations in all juvenile cases, including the provision of
Miranda warnings and the waiver, if any, of rights by the juveniles. It
requires that recording procedures be consistent with regulations to be
promulgated by the Division of Criminal Justice Services. It applies to
interrogations that take place in law enforcement facilities, which, pursuant
to Family Court Act § 305.2(4) and section 205.20 of the Uniform Rules of the
Family Court, must be in rooms that have been inspected and approved by the
Chief Administrator of the Courts for the questioning of youth. All persons in
the recording must be identifiable and the speech must be intelligible. As is
applicable to other statements by juveniles, the recording would be subject to
discovery pursuant to Family Court Act § 331.2. Further, like other factors in
juvenile delinquency Huntley hearings, including the presence or absence of
parents, location of questioning and the validity of any waiver of rights, the
fact and quality of the recording would be among factors comprising the
totality of circumstances affecting admissibility of accused juveniles'
statements. Failure to record would not, by itself, be a ground for granting a
suppression motion. (See NY Legis Memo 299)
Where presumption of neglect triggered under Family
Court Act § 1046(a)(iii), ACS not required to establish children
suffered actual harm or were at imminent risk of harm
In
Matter of Jesse W, --- N.Y.S.3d ----, 2020 WL 7050359, 2020 N.Y. Slip Op. 07203
(2d Dept.,2020) the Appellate Division observed that pursuant to Family Court
Act § 1046(a)(iii), “proof that a person repeatedly misuses a drug or drugs or
alcoholic beverages, to the extent that it has or would ordinarily have the
effect of producing in the user thereof a substantial state of stupor,
unconsciousness, intoxication, hallucination, disorientation, or incompetence,
or a substantial impairment of judgment, or a substantial manifestation of
irrationality, shall be prima facie evidence that a child of ... such person is
a neglected child except that such drug or alcoholic beverage misuse shall not
be prima facie evidence of neglect when such person is voluntarily and
regularly participating in a recognized rehabilitative program”. In cases where
this presumption of neglect is triggered, the petitioner is not required to
establish that the child suffered actual harm or was at imminent risk of harm.
It concluded that the evidence supported the Family Court’s determination that
ACS met its burden of proving that the father neglected the subject children as
a result of his misuse of drugs. The evidence demonstrated that the father
regularly misused PCP and marijuana, that his misuse of drugs produced in him
“a substantial state of stupor, unconsciousness, intoxication, hallucination,
disorientation, or incompetence, or a substantial impairment of judgment, or a
substantial manifestation of irrationality,” and that he was not participating
in a drug rehabilitation program. Contrary to the father’s argument, because
this presumption of neglect was triggered under Family Court Act §
1046(a)(iii), ACS was not required to establish that the children suffered
actual harm or were at imminent risk of harm.
Grandparent visitation terminated where mother sought
to relocate with Child to Germany
In
Matter of Lisa AS v Ray AT, --- N.Y.S.3d ----, 2020 WL 7050365 (Mem), 2020 N.Y.
Slip Op. 07202(2d Dept.,2020) the Appellate Division affirmed an order which
terminated the supervised visitation with the child that had been awarded to
the maternal grandmother. The petition alleged that, since the entry of the
prior order of visitation, there had been a “change of circumstances” in that
the mother had been offered a promotion that necessitated that she relocates
with the child to Germany. The Appellate Division found that the mother
demonstrated that the move would result in the child gaining beneficial
opportunities, including not only those resulting from the mother’s increased
salary, but also those attendant to living in a foreign country, including
learning the language of that country. The child also expressed interest in the
opportunities afforded by the relocation with the mother to the foreign
country. In addition, the mother testified that her relationship with the
maternal grandmother had become “increasingly toxic” and that the maternal
grandmother’s recurring unfounded allegations against the mother to child protective
services had a negative impact on both the mother and the child.
Estranged grandmother committed Family Offense by
repeatedly approaching petitioner’s children to introduce herself
and surreptitiously delivering gifts and leaving notes despite petitioner’s
instruction to not contact her or her children.
In
Matter of Schade v Kupferman, --- N.Y.S.3d ----, 2020 WL 6930678 (Mem), 2020
N.Y. Slip Op. 07069 (2d Dept.,2020) petitioner commenced
a family offense proceeding against her estranged mother. She alleged that she
had clearly and unequivocally prohibited her from having any contact with her
or her children. The petitioner alleged that the appellant had been committing
acts constituting, inter alia, the crime of harassment in the second degree by
repeatedly contacting and attempting to contact the petitioner and the
petitioner’s children. The Appellate Division affirmed an order of the Family
Court which found that the appellant had engaged in conduct constituting a
family offense and issued an order of protection. It held that as relevant
here, a person commits the family offense of harassment in the second degree
when, with intent to harass, annoy, or alarm another person, he or she “engages
in a course of conduct or repeatedly commits acts which alarm or seriously
annoy such other person and which serve no legitimate purpose” (Penal Law §
240.26[3]). The appellant committed the family offense of harassment in the
second degree (Penal Law § 240.26[3]) by, among other things, repeatedly
approaching the petitioner’s young children to introduce herself as their
grandmother, and surreptitiously delivering gifts and leaving notes for the
children despite the petitioner’s clear instruction to not contact her or her
children.
Where parties fail to satisfy unambiguous agreement
mediation condition precedent before filing new custody petition failure to
satisfy condition precedent will result in dismissal of petition
In
Matter of Jessica EE v Joshua EE, 2020 WL 6929323 (3d Dept.,2020) the parties
agreed to an order of custody that provided joint legal and physical custody of
the children, and further provided, as pertinent here, “that[,] should a
conflict arise between the parties regarding decision making and/or compliance
enforcement, modification or violation of any of the terms of this [o]rder[,]
the parties shall make a good faith effort to engage in mediation prior to
returning to court or filing any petitions.” In December 2018, the
mother filed a modification petition seeking primary residential and sole legal
custody of the children. The father moved to dismiss the petition, arguing,
inter alia, that the mother failed to satisfy the condition
precedent to mediate in good faith prior to filing the petition. Family Court
granted the motion. The Appellate Division held among other things that where
parties to an agreement are required to satisfy a condition precedent before
filing a new petition, and the agreement is unambiguous, failure to satisfy
that condition precedent will result in dismissal of the petition. Here, the
agreement was unambiguous. It rejected the mothers argument that she made a
good faith effort to engage in mediation with the father prior to filing the
petition.
Once father brought support payments
current order of commitment should not have been
issued
In
Matter of Dupis v Costello, --- N.Y.S.3d ----, 2020 WL 6929264 (Mem), 2020 N.Y.
Slip Op. 06992 (3d Dept.,2020) the Support Magistrate determined that the
father had willfully violated the support order, granted the mother a money
judgment for arrears, and recommended that the father be sentenced to a jail
term of 120 days, the sentence to be suspended so long as he complied with the
support order. By the time the father appeared before Family Court for a
confirmation hearing (see Family Ct Act § 439[e] ), he had paid all arrears and
had established a balance in his favor. Family Court issued an order of
commitment imposing a 120–day jail sentence and ordered that the sentence be
suspended so long as the father met his support obligations for a period of
three years. The Appellate Division reversed. It held that a jail sentence
imposed for a party’s civil contempt in failing to comply with an order, such
as the father’s willful failure to pay support as ordered, is not punitive and
only serves the remedial purpose of compelling compliance” with the order.
There was no remedial purpose to be served by continued confinement or the
threat thereof once the father had brought his support payments current
and the order of commitment should not have been issued because the father
had already complied completely with the underlying support order. Family Court
erred in suspending the sentence and was obliged to discharge it without condition.
Family Court lacked subject jurisdiction to issue the
order directing a forensic evaluation where no petition pending in court
between these parties
In
Matter of James R. v Jennifer S, --- N.Y.S.3d ----, 2020 WL 6929190, 2020 N.Y.
Slip Op. 06997(3d Dept.,2020) the parties settled custody and violation
petitions then pending in Family Court by stipulating to engage in family
counseling and to a protocol for the selection of a therapist. The transcript
of the stipulation of settlement was incorporated by reference into a consent
order entered in March 2019. Thereafter, the parties failed to agree on the
selection of a therapist, prompting the father to request that the court
appoint as a therapist a licensed psychiatrist versed in parental alienation.
After converting the father’s request to an application for a court-ordered
forensic evaluation, the court ordered a forensic evaluation over the mother’s objection.
The Appellate Division reversed. It held that Family Court lacked subject
jurisdiction to issue the order directing a forensic evaluation because the
March 2019 order on consent resolved all underlying petitions and, therefore,
at the time that Family Court issued the order, no petition was pending in
court between these parties. The filing of a petition to commence a proceeding
is mandatory and a precondition to the court obtaining jurisdiction (Family Ct.
Act § 154–a). Family Court is authorized to order a forensic evaluation of any
persons within its jurisdiction “[a]fter the filing of a petition under this
act over which [it] appears to have jurisdiction ... when such an examination
will serve the purposes of this act” (Family Ct. Act § 251[a]). Thus, the
Family Ct Act contemplates that, before Family Court can order a forensic
evaluation, a petition must have first been file
Court of Appeals holds that Domestic Relations
Law ' 111(1)(a), which generally requires the consent of an adoptive
child who is over 14 years old but gives the court discretion to dispense
with that consent permits a court to approve an adoption even absent the
consent of an adult adoptee.
In
Matter of Marian T., ‑‑‑ N.E.3d ‑‑‑‑, 2020 WL 6877600, 2020 N.Y. Slip Op. 06932
(2020) the issue in this adoption proceeding was whether the
adoption was categorically precluded because the adoptee, an adult woman with a
significant developmental disability, did not have the capacity to give her
consent. Marian T., a 66ByearBold woman, resided with petitioners. for
approximately 15 years. Marian had a profound intellectual disability that
resulted in significant developmental delays and limited verbal ability. Petitioners
operated a licensed Family Care home under the supervision of the New York
State Office for People with Developmental Disabilities, which oversees the
placement of individuals with severe intellectual disabilities in private
family homes where they may be properly cared for. Seeking to provide
permanency for Marian, who had no living relatives and had been in the State=s
custody since she was a child, petitioners commenced adoption proceeding in
August 2015. Mental Hygiene Legal Services (MHLS),appointed to represent Marian
in the proceedings, objected to the adoption on the ground that Marian=s
consent was required under DRL ' 111(1)(a), arguing that Marian
lacked the capacity to consent and that the statute permits a court to dispense
with adoptee consent only where the adoptee is a child between the ages of 14
and 17. Petitioners countered that, because the phrase adoptive child in
the statute includes adult adoptees and Marian was over the age of 14, the
court had the discretion to dispense with the consent requirement. That
questioned turned on the proper interpretation of Domestic Relations Law
(DRL) ' 111(1)(a), which generally requires the consent of an adoptive
child who is over 14 years old but gives the court discretion to dispense
with that consent. The Court of Appeals held that, in appropriate
circumstances, the statute permits a court to approve an adoption even absent
the consent of an adult adoptee. Because that discretion was not abused here
and there was record support for the affirmed best interests
finding, it affirmed the order which approved the adoption.
Contingency fee agreement held to be enforceable in
matrimonial action where underlying dispute related only to plaintiff=s alleged
breach of the confidentiality provision of a prior child support agreement
In
Costa v Arandia & Arandia, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6877305 (Mem), 2020
N.Y. Slip Op. 06945(1st Dept.,2020) the Appellate Division held
that the motion court properly found the contingency fee agreement to be enforceable.
Duly agreed contingent fee arrangements are generally valid. Although there is
an exception to this rule where the fee is contingent upon the securing of
a divorce ... or is in any way determined by reference to the amount of
maintenance, support, equitable distribution, or property settlement (Rules
of Professional Conduct [22 NYCRR] ' 1200.0 rule 1.5[d][5][I]), this
exception did not apply here, as the underlying dispute related only
to plaintiff=s alleged breach of the confidentiality provision of a prior child
support agreement.
The definition of unconscionable contract reveals two
major elements. The procedural element of unconscionability concerns the
contract formation process and the alleged lack of meaningful choice; the
substantive element looks to the content of the contract, per se.
In
Eicholz v Eicholz, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6602904, 2020 N.Y. Slip Op. 06500
(2d Dept.,2020) the plaintiff commenced an action to vacate the
parties= separation agreement and moved, among other things, for summary
judgment on the ground of unconscionability. The plaintiff argued that he did
not understand the terms of the separation agreement when he executed the
agreement because he was under the influence of psychotropic medication and the
effects of electro‑convulsive therapy, and that he signed the agreement without
legal representation and because the defendant had threatened to force him out
of the marital residence. Supreme Court granted plaintiff=s motion. The
Appellate Division reversed. It observed that in general, an unconscionable
contract has been defined as one which is so grossly unreasonable as to be
unenforceable because of an absence of meaningful choice on the part of one of
the parties together with contract terms which are unreasonably favorable to
the other party. This definition reveals two major elements which have been
labeled by commentators, procedural and substantive unconscionability. The
procedural element of unconscionability concerns the contract formation process
and the alleged lack of meaningful choice; the substantive element looks to the
content of the contract, per se. A reviewing court examining a challenge to a
separation agreement will view the agreement in its entirety and under the
totality of the circumstances. The Appellate Division found that
while the complaint adequately pleaded a cause of action, plaintiff
failed on the motion to demonstrate as a matter of law through medical records
or testimony from a doctor that his ability to understand the terms of the
separation agreement when he executed the agreement was impaired by medication
or prior treatment that he received. In addition, he failed to demonstrate,
prima facie, that the manner in which the defendant presented the separation
agreement to the plaintiff, along with the plaintiff=s lack of legal
representation and the lack of financial disclosure between the parties, served
to deprive the plaintiff of a meaningful choice in entering into the separation
agreement. Further, although the defendant was awarded a majority of the
marital assets under the agreement, the record did not contain sufficient
evidence demonstrating the value of most of these assets. Although the
plaintiff, who did not have an income when the agreement was executed, waived
his right in the separation agreement to maintenance from the defendant, who
made a significant salary, this waiver, by itself, was insufficient to
demonstrate that the agreement as a whole was unconscionable. A hearing was
warranted to determine the totality of the circumstances, including the extent
of the parties= assets and the circumstances surrounding the execution of
the separation agreement, and as such, summary judgment should have been
denied.
Criminal conviction may be given collateral estoppel
effect in a Family Court proceeding where (1) the identical issue has been
resolved, and (2) the defendant in the criminal action had a full and fair
opportunity to litigate the issue of his or her criminal conduct.
In
Matter of Brittani A, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6601901, 2020 N.Y. Slip Op.
06523 (2d Dept.,2020) an abuse proceeding, the Appellate Division held that a
criminal conviction may be given collateral estoppel effect in a Family Court
proceeding where (1) the identical issue has been resolved, and (2) the
defendant in the criminal action had a full and fair opportunity to litigate
the issue of his or her criminal conduct. The mother=s convictions of attempted
murder in the second degree, attempted assault in the first degree, attempted
assault in the second degree, and endangering the welfare of a child were based
on the same acts alleged by DSS to constitute abuse in these proceedings.
Therefore, DSS established, prima facie, that the child was an abused child
pursuant to Family Court Act ' 1012(e)(ii).
While recoupment of overpayments of child support is
generally not permitted overpayments may be used to offset add‑on expenses,
such as educational expenses and unreimbursed medical expenses.
In
Matter of Collette v Collette, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6750542, 2020 N.Y.
Slip Op. 06778 (2d Dept.,2020) in 2011 a money judgment, of $14,935.33 was
entered against the father for child support arrears. In December 2018, the
father filed a petition seeking a determination that the money judgment had
been satisfied. In an order dated July 9, 2019, made after a hearing, a Support
Magistrate, inter alia, vacated the arrears set forth in the money judgment as
having already been satisfied, and directed the Support Collection Unit to stop
enforcing the money judgment, determined that the father was entitled to a
credit in the sum of $12,270.65 based on overpayments of child support, to be
applied to the father=s future child support payments or, in the alternative,
to his obligation to pay his pro rata share of unreimbursed medical expenses
and/or educational expenses. The Appellate Division affirmed in part. It agreed
with the Family Court=s determination but held that recoupment of child support
payments is only appropriate under limited circumstances not applicable here
(see Matter of McGovern v. McGovern, 148 A.D.3d at 902, 50 N.Y.S.3d 408; Rader
v. Rader, 54 A.D.3d at 920, 865 N.Y.S.2d 235; People ex rel. Breitstein v.
Aaronson, 3 A.D.3d 588, 589, 771 N.Y.S.2d 159). It held that the father was not
entitled to a credit against his future child support obligation based on prior
overpayments of child support. However, inasmuch as public policy does not
forbid offsetting add‑on expenses against an overpayment of child support, it
agreed with the Support Magistrate=s determination that the father may use the
overpayments to offset his share of add‑on expenses, such as educational
expenses and unreimbursed medical expenses.
Post Adoption contact agreement provision that it
would become void on violation of provision upheld
In
Matter of Scott v Rhodes, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6750450 (Mem), 2020 N.Y.
Slip Op. 06797(2d Dept.,2020) the post‑adoption contact provisions of the
judicial surrender of the child provided that the biological
mother Amay not use any photographs or correspondence or information
regarding the child or the adoptive parents in any way on any form of social
media (e.g. Facebook, Twitter, etc.).@ It further provided that if the
biological mother failed to keep any of the conditions in the
agreement, Athen they all shall be null and void, effective at the time of
the first failure.@ The Appellate Division held that the mothers violation
of this provision rendered the post‑adoption contact agreement null and void
(see Matter of Sapphire W. [Mary W.CDebbie R.], 120 A.D.3d 1584, 1585, 992
N.Y.S.2d 599; Matter of Mya V.P. [Amber R.CLaura P.], 79 A.D.3d 1794, 1795, 913
N.Y.S.2d 477).
Where parties have joint custody and there is a change
of residence, child support not modified where judgment not modified.
In
Listokin v Listokin, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6601948, 2020 N.Y. Slip Op.
06516 (2d Dept.,2020) the judgment dated August 4, 2016, incorporated the terms
of a stipulation of settlement between them dated May 17, 2016. Pursuant to the
judgment, the parties were to have joint legal custody of their two children,
whose primary residence would be with the defendant, with the plaintiff to have
parental access to the children in accordance with the terms of the stipulation
of settlement. The plaintiff was obligated to pay substantial basic child
support to the defendant and the parties agreed that issues regarding child
support would be subject to the standard of review applicable to judgments
rather than contracts. On November 21, 2016, the plaintiff moved to suspend his
basic child support obligation and to direct the defendant to pay basic child
support to him, claiming that the children had taken up residence with him.
Supreme Court determined that because the children were residing with the
plaintiff, he had met his burden of establishing an unanticipated and
unreasonable change in circumstances to warrant a reduction or suspension of
his basic child support obligation. In an order dated May 31, 2018, the court,
inter alia, granted plaintiff=s motion which was to suspend his basic child
support obligation only to the extent of reducing that obligation to $5,586 per
month, and denied his motion to direct the defendant to make basic child
support payments to him. The Appellate Division affirmed. It held that he did
not establish a right to the suspension of his entire basic child support
obligation based upon his assertion that he was the Ade
facto@ custodial parent of the parties= children. Rather, the record
supported the conclusion that while the children chose to reside with the
plaintiff for a period of time, he did not petition the court to be the primary
physical custodian of the children, defendant never acquiesced in the
children=s relocation to the plaintiff=s residence, and the judgment of divorce
remained unchanged in designating the defendant as the custodial parent for
child support purposes. However, given the plaintiff=s evidence that the
children were spending much more time in his household than originally
contemplated in the stipulation of settlement, it agreed with the Supreme Court
that a reduction in the plaintiff=s basic child support obligation by crediting
him with the additional amounts he was expending for the children at his home
constituted a provident exercise of discretion and took into account the
practical realities and fluid nature of the parties= situation.
Where Child Support retroactively modified to
date of petition pursuant to Family Ct Act ' 439[e] father entitled
to credit for payments in excess of reduced obligation between date
of filing of petition and order.
In
Merritt v Merritt, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6601867, 2020 N.Y. Slip Op. 06529
(2d Dept.,2020) on December 10, 2015, after having become unemployed in April
2015, the father filed a petition for a downward modification of his support
obligation. By order entered September 23, 2016, after a hearing, the Support
Magistrate, inter alia, denied the father=s petition. By order dated December
13, 2016, the Family Court denied the objections. On the father=s ensuing
appeal the court reversed the December 13, 2016 order, determining that the
father had met his burden of showing that there has been a substantial change
in circumstances since the entry of the December 23, 2014 order. Upon remittitur,
in an amended order dated April 15, 2019, the Support Magistrate, after a
hearing, recalculated the father=s support obligation at a monthly sum of
$1,784. The Support Magistrate determined that the father was entitled to a
credit for his payments in excess of $1,784 for a period of 10 months, between
the filing of the underlying petition on December 10, 2015, and the October 5,
2016, effective date of an order dated February 27, 2017, which granted the
father=s later petition for a downward modification of his child support
obligations. The father filed objections. Family Court denied the father=s
objections. The Appellate Division affirmed. While the father was entitled to a
credit for payments in excess of his reduced obligation as determined by the Family
Court=s order (see Family Ct Act ' 439[e] ), construing the statute
according to its plain meaning, the credit could only be awarded for excess
payments made pursuant to the order which erroneously denied the father=s
petition for a downward modification of his support obligation. Here, the
father filed a new petition for a downward modification on October 5, 2016, and
that relief was granted by the Family Court in an order dated February 27,
2017, retroactive to the date of filing. As such, as of October 5, 2016, the
father=s child support obligation was no longer determined by the order entered
September 23, 2016, and, upon reversal of that order, there was no basis to
award him a credit for any further payments after October 5, 2016.
Motion to dismiss appeal for failure to settle
transcript may not be considered where first raised in the Brief of a Party
In
Matter of Trataglia v Tartaglia, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6816607,
2020 N.Y. Slip Op. 06912(4th Dept.,2020) the Appellate
Division, inter alia, declined to address the father=s request, set forth in
his respondent=s brief, to dismiss the mother=s appeal. His request was based
on the father=s allegations in his brief that the mother failed to settle the
trial transcript pursuant to CPLR 5525 (c). It held that it may
not Aconsider a statement of fact appearing only in the brief of a party,
even if such statement [is] not disputed@ (Ditmars‑31= St. Dev. Corp.
v. Punia, 17 AD2d 357, 360 [2d Dept 1962]; see also People v. Alizadeh, 87 AD2d
418, 426 [1st Dept 1982]).
Failure to comply with the statutory
requirement of Family Ct Act ' 1017 [1] to contact aunt
and inform her of right to seek to become a foster parent or obtain custody did
not require reversal where aunt not prejudiced.
In
Matter of Sandy L.S. v Onondaga County Department of Children and Family
Services, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6816598, 2020 N.Y. Slip Op. 06910 (4th Dept.,2020) the
child=s great aunt (aunt)Cappealed from an order in a proceeding pursuant to
Social Services Law ' 384‑b that, inter alia, terminated respondent
mother=s parental rights, authorized Onondaga County Department of Children and
Family Services (DCFS) to consent to the child=s adoption and ordered that the
preadoptive foster parents could petition to adopt the child. In appeal No. 2,
the aunt appealed from an order in a proceeding pursuant to Family Court Act
articles 6 and 10 that dismissed her petition seeking custody of the child. The
Appellate Division affirmed. It, inter alia, rejected the Aunts argument in
appeal No. 2, that DCFS did not comply with the statutory requirement to
contact her and inform her of her right to seek to become a foster parent or
otherwise obtain custody of the child (see Family Ct Act ' 1017 [1]),
and that she should therefore not be Apenalized@ for failing to seek
such relief within 12 months of foster care placement (see Family Ct
Act ' 1028‑a; Social Services Law ' 383 [3]). At all
relevant times, the aunt knew that the child had been placed in foster care,
and yet did not express any interest in seeking foster care placement or
custody of the child until two years after the child was born. Shortly after
the child was born, the aunt had declined to be considered a resource for the
child because she was already overwhelmed with caring for the child=s siblings.
Thus, even assuming, arguendo, that DCFS violated its statutory duty to inform
the aunt of her right to seek to become a foster parent or obtain custody of
the child, reversal was not required because the aunt was not prejudiced by
the error.
Support Magistrates findings cannot be confirmed
without compliance by the Court with 22 NYCRR 205.43
In
N. L., v. S.L., ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6600121, 2020 N.Y. Slip Op. 06453 (1st Dept.,2020)
on or about March 20, 2012, the Family Court entered a child support order
which required that the father pay $7,600 per month in child support. On
December 5, 2012, the mother filed a violation petition, asserting that the
father had willfully violated the child support order, because he made no
support payments and no payments toward the arrears. A willfulness hearing
commenced on or about December 23, 2013. The mother=s petition was not decided
until nearly seven years later, on or about November 15, 2019. At
the conclusion of the violation proceeding, the Support Magistrate recommended
that the father be incarcerated for six months, and directed that the father
could purge his contempt and avoid incarceration by paying $84,000 by December
16, 2019. On December 16, 2019, the Support Magistrate referred the matter to a
Family Court judge to confirm the recommendation of incarceration. Later the
same day, however, the Family Court judge found that the father presented a
certified check for the recommended purge amount to the Support Collection Unit
and since the recommended purge amount had been paid, the matter was no longer
properly before him. The parties filed objections to the Support Magistrate=s
determinations. The mother objected, inter alia, to the recommended purge
amount as insufficient, and objected to the Support Magistrate=s failure to set
a payment schedule. Family Court denied both parties= objections. Family
Court found that the judge who had determined that the father had paid the
recommended purge amount had implicitly Aconfirmed@ the Support
Magistrate=s recommendation of incarceration and the purge amount of $84,000.
The
Appellate Division reversed. It found that the record failed to support the
Family Court=s conclusion that the purge amount recommended by the Support
Magistrate had been confirmed by the Family Court judge on December 16, 2019.
The Rules of the Family Court provide that:A[i]n a case heard by a support
magistrate, a Family Court judge may confirm the findings of the support
magistrate by adopting his or her findings and recommendations in whole or in
part. Alternatively, the Family Court judge may modify or refuse to confirm the
findings and recommendations and may refer the matter back to the support
magistrate for further proceedings. The court may, if necessary, conduct an
evidentiary hearing@ (22 NYCRR 205.43[i] ). The record contained no
written order confirming or rejecting the Support Magistrate=s recommendation.
Moreover, the transcript of the proceedings made clear that the court did not
adopt or modify the Support Magistrate=s findings and recommendations, in whole
or in part, or make new findings. It held that Family Court erred,
on February 3, 2020, when it denied the mother=s objections on the basis that
the court had confirmed the Support Magistrate=s recommendation of
incarceration and a purge amount. The Family Court Rules further provide that,
where a support magistrate makes a finding of willfulness, the findings of
fact Ashall@ include Aa recommendation, as appropriate,
regarding a specific dollar amount to be paid or a specific plan to repay the
arrears@ (22 NYCRR 205.43[g][4] ). The mother=s request for a payment plan
for the support arrears was properly before the court, as neither the Support
Magistrate nor the Family Court judge who previously presided over the matter
considered her request on the merits. The matter was remanded to a Family Court
judge for proceedings consistent with this decision.
Appellate Divison points out in dicta that courts
should not use any information from child , which has not been previously
mentioned and is adverse to either parent, without in some way checking on its
accuracy during the course of the open hearing
In
Edwin E.R. v Monique A.-O, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6494185, 2020 N.Y. Slip
Op. 06347 (1st Dept.,2020) the Appellate Division reversed an
order , which, inter alia, modified a prior order of custody to grant sole
physical and legal custody of the child to petitioner father. It pointed out in
dicta that even if the Family Court had properly found that there was a change
of circumstances the record did not support the finding that the child lived
primarily with the grandmother. The court based its finding solely on an in
camera interview with the child, then eight years old, and the hearsay
testimony of the father. It noted that the Court of Appeals has admonished that
courts should Anot use any information, which has not been previously
mentioned and is adverse to either parent, without in some way checking on its
accuracy during the course of the open hearing,@ because Athere are
grave risks involved in these private interviews.(Matter of Lincoln v. Lincoln,
24 N.Y.2d 270, 273[1969]). This admonition was well taken in this case, where
the record provided a substantial basis for concluding that either or both
parents spoke to the child about the proceeding before his interview with the
court. Moreover, the father=s testimony could not serve either as an adequate
check on the accuracy of any of the child=s statements or an adequate
independent basis for the court’s finding, since it was pure hearsay. The
father did not claim to have any independent knowledge of where the child spent
his time, but testified that the grandmother had told him the child spent most
nights at her home. Moreover, the mother directly contradicted the father=s
testimony.
Supreme Courts’ subject matter jurisdiction over a
matrimonial matter does not end upon the death of one party where agreement
incorporated into judgment granted the court exclusive jurisdiction over the
enforcement of its provisions, which are governed by New York law.
In
Perry v McMahan, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6478507, 2020 N.Y. Slip Op.
06303(2d Dept.,2020) the parties 2009 stipulation which was incorporated but not
merged into their judgment of divorce obligated the husband to pay the wife
$30,000 per month in spousal maintenance, and stated that, in the event of the
husband=s death prior to the termination of the wife=s maintenance, the
husband=s estate would continue to make the maintenance payments. The agreement
also stated that it was to be governed by the laws of the State of New York,
and it was to be so‑ordered by the Supreme Court, which Ashall retain
exclusive jurisdiction to enforce the provisions of this Agreement.@ The
husband died on March 29, 2017, in Florida, and the plaintiff, who was the
personal representative of the husband=s estate, filed probate administration
pleadings in Florida. The maintenance payments to the wife ceased after the husband=s
death, and the wife moved in Supreme Court, inter alia, to enforce the
maintenance provisions of the agreement. In opposition, the plaintiff, among
other things, argued that the Florida courts had subject matter jurisdiction
and that the courts of New York no longer had subject matter jurisdiction. The
Appellate Division rejected plaintiff=s contentions that the court
lacked subject matter jurisdiction over the wife=s claims against the husband=s
estate for spousal maintenance and that the judgment was void for lack of
subject matter jurisdiction. It held that the wife was entitled to
judgment for arrears of spousal maintenance due as of September 1, 2017.
The court’s subject matter jurisdiction over a matrimonial matter
does not end upon the death of one party. Here, the agreement was binding on
the husband=s estate to continue maintenance payments to the wife after the
husband=s death, and granted the issuing court exclusive jurisdiction over the
enforcement of its provisions, which are governed by New York law. The Florida
statute relating to the enforcement of claims against an estate did not divest
the Supreme Court of subject matter jurisdiction to resolve this dispute over a
contract governed by New York law.
The fact that the parties employed a nanny for a
period of time to assist with housekeeping and childcare responsibilities did
not require a reduction in the defendant=s distributive share of husbands
enhanced earning capacity
In
Spinner v Spinner, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6478477, 2020 N.Y. Slip Op. 06307
(2d Dept.,2020) the parties were married in 1998, and had two children. During
the course of the marriage, the plaintiff attended and graduated from medical
school, completed a five‑year residency in internal medicine and neurology, and
completed a clinical fellowship in neurophysiology. The plaintiff commenced
this action in April 2012. In 2017 Supreme Court, inter alia, awarded the
defendant a distributive share of the plaintiff=s enhanced earning capacity and
directed the plaintiff to pay (1) child support of $1,769.23 per week, (2) 92%
of the cost of the children=s extracurricular activities up to $15,000 per
year, and (3) 92% of the children=s college expenses.
The
Appellate Division held, inter alia, that although the plaintiff
commenced the action in April 2012, there was no evidence that his
income changed at any time between the commencement of the action and the end
of 2012. Therefore, Supreme Court providently exercised its
discretion in determining the value of the plaintiff=s enhanced earning
capacity based on his 2012 earnings. It agreed with the Supreme Court’s
determination that the defendant was entitled to a 25% share of the plaintiff=s
enhanced earning capacity from his medical education and training. The
plaintiff=s student loans were paid with marital funds, and the defendant made
substantial contributions by, inter alia, supporting his educational endeavors,
working from the time of the marriage in June 1998 until she started law school
in September 2001 and again from September 2008 until May 2011, contributing
her earnings to the family, being the primary caregiver of the
parties= two children, cooking family meals, and participating in housekeeping
responsibilities. The fact that the parties employed a nanny for a period of
time to assist with housekeeping and childcare responsibilities did not require
a reduction in the defendant=s distributive share of his enhanced earning
capacity (see e.g. NingBYen Yao v. KaoBYao, 147 A.D.3d 624, 630B631, 48
N.Y.S.3d 337). According to the plaintiff=s statement of net worth, sworn to on
May 15, 2017, he incurred $231,510 in student loan debt pursuing his medical
degree. As the plaintiff=s enhanced earning capacity was marital property, the
Supreme Court should have required the defendant Ato bear a concomitant
portion of the student loan debt incurred@ by the plaintiff in pursuing
his degree. It held that the defendant=s 25% share of that debt should have been
set off against her distributive award of the plaintiff=s enhanced earning
capacity.
The
Appellate Division held that in consideration of the nonliquid nature of the
plaintiff=s assets and the substantial amount of the award, the court should
have permitted the plaintiff to pay the award in installments over a period of
10 years, rather than 5 years, together with interest at the statutory rate of
9% per annum from the date of the order appealed from.
The
Appellate Division held that the Supreme Court improvidently
exercised its discretion in capping the combined parental income in excess of
$143,000 at $400,000 when calculating the plaintiff=s child support obligation.
Where the combined parental income exceeds that ceiling, the court, in fixing the
basic child support obligation on income over the ceiling, has the discretion
to apply the factors set forth in Domestic Relations
Law ' 240(1Bb)(f), or to apply the statutory percentages, or to apply
both. AThe court must articulate an explanation of the basis for its
calculation of child support based on parental income in excess of the
statutory cap. Although the Supreme Court set forth the factors it considered
in determining the child support percentage of 25% of the
parties= combined income in excess of $143,000, the court did not offer
any reasons as to why it was appropriate to award child support based on
combined parental income up to $400,000. Although the plaintiff was a high‑wage
earner, the record demonstrated that the children lived a middle‑class
lifestyle. While the parties employed a live‑in nanny for several years to
assist with childcare, there was no indication that the children lived a lavish
lifestyle. It held that the court should have limited the combined parental
income in excess of the statutory cap to $250,000.
The
Supreme Court erroneously directed the plaintiff to contribute to the college
expenses of the parties= younger child. At the time of trial, the
parties= younger child was 14 years old, and no evidence was presented concerning
her academic ability, interest in attending college, choice of college, or the
expenses attendant with college. It held that it was premature for the court to
direct the plaintiff to contribute to the college expenses of the
parties= younger child. However, Supreme Court providently exercised its
decision in directing the plaintiff to pay 92% of the college expenses of the
parties= older child. However, the child support award should have
included a provision either directing that, when that child is living away from
home while attending college, the plaintiff=s monthly child support obligation
shall be reduced, or awarding the plaintiff a credit against his child support
obligation for any amounts that he contributes toward college room and board expenses
for that child during those months. It held that the court should determine the
plaintiff=s child support obligation, considering any time periods that the
child is living away from home at college. The Supreme Court did not impose a
SUNY cap on the plaintiff=s obligation to contribute to the parties= older
child=s college expenses. It held that whether to impose a SUNY cap is
determined on a case‑by‑case basis, considering the parties= means and the
child=s educational needs.
Court providently exercised its discretion in
according relatively little weight to the preferences of teen age children who
sought to escape structure imposed by mother
In
Pryne v Pryne, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6478951 (Mem), 2020 N.Y. Slip Op.
06269 2020 WL 6478951 (2d Dept.,2020) the parties had three children Neal P.,
born in 2003, Abigail P., born in 2004, and Jake P., born in 2008. The
Appellate Division held, inter alia, that a child=s preference is not
determinative and, in weighing this factor, the court must consider the age and
maturity of the child. Under the circumstances of this case, where, inter alia,
the teenaged children Neal and Abigail apparently sought a change of physical
custody to the father in order to escape from the more structured constraints imposed
by the mother to the more indulgent parenting style of the father, the court
providently exercised its discretion in according relatively little weight to
the preferences of Neal and Abigail, in relation to the other relevant factors.
Court may not reduce or vacate arrears which accrued
prior to the date of petition to vacate acknowledgment of paternity even where
DNA shows petitioner not the father
In
Westchester County Department of Social Services v Clarke, ‑‑‑ N.Y.S.3d ‑‑‑‑,
2020 WL 6478596 (Mem), 2020 N.Y. Slip Op. 06277 (2d Dept.,2020) Clarke
commenced a proceeding pursuant to Family Court Act ' 516Ba to vacate
his acknowledgment of paternity. After genetic marker testing established that
Clarke was not the child=s biological father, the Family Court granted the
petition. In this proceeding, the court issued an order terminating Clarke=s
support obligation effective April 4, 2018. Clarke appealed challenging the
effective date of the termination of his support obligation. The Appellate
Division agreed with Family Court’s determination to terminate Clarke=s support
obligation effective as of the date of his petition to vacate the
acknowledgment of paternity. It held that the court was prohibited from
vacating arrears that accrued prior to the date of Clarke=s petition seeking
vacatur of the acknowledgment of paternity (Family Ct. Act ' 451[1])
Child support arrears must be awarded in full regardless of whether requiring
the party to pay the arrears will result in grievous injustice. The court may
not reduce or vacate arrears which accrued prior to the date of Clarke=s
petition, even if it was inappropriate to impose any child support obligation
on him in the first place and even though it has been established that he is
not the child=s biological father.
Where husband=s answer dated March 9, 2017 was not
filed until August 8, 2017 Appellate Division holds he was entitled to child
support retroactive to August 8, 2017, the date on which he first made an
application for such relief.
In
Pace v Pace, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6324729, 2020 N.Y. Slip Op. 06181 (3rd Dept,
2020) Plaintiff (wife) and defendant ( husband) married in 1995 and had four
children. The matter proceeded to trial on the issues of equitable
distribution and child support. The parties waived maintenance. Supreme
Court equitably distributed the parties= marital property and directed the
wife to pay the husband $800 per week in child support and $14,300 as
retroactive temporary child support dating back to August 8, 2017.
The
Appellate Division discerned no abuse of discretion in Supreme Court’s
determination that the appreciation in value of the five subject real
properties which he owned before marriage was marital property and that the
wife was entitled to 35% of the total appreciation value .
The
Appellate Division held that with respect to the mixed‑use
properties, Supreme Court did not abuse its discretion in adopting the
valuations offered by the wife=s expert, notwithstanding the expert=s inability
to use the preferred income capitalization approach to calculate the date of
marriage values. Data regarding the properties= income at the time of the
marriage was unavailable and the wife=s expert used the income capitalization
approach, together with some consideration of the comparable sales approach, to
calculate the 2018 values of the properties. Under the circumstances, including
that the husband=s expert also utilized the income capitalization approach to
assign 2018 valuations to the properties, it found that the methodologies
employed by the wife=s expert were reasonable (see generally Ciaffone v.
Ciaffone, 228 A.D.2d 949, 951, 645 N.Y.S.2d 549 [1996] ).
The
husband asserted that Supreme Court’s retroactive child support award should
have dated back to March 9, 2017, inasmuch as he first requested child support
in his answer and his answer bore such date. However, as confirmed by the
County Clerk=s office, the husband=s answer was not filed until August 8, 2017.
Thus, Supreme Court properly concluded that the husband was entitled to child
support retroactive to August 8, 2017, the date on which he first made an
application for such relief (see Domestic Relations
Law '' 236[B][7][a]; 240[1][j] ).
The
Appellate Division affirmed Supreme Courts award to the husband of 50% of the
value of the wife=s audiology practice , which was stipulated to be
$1.1 million as of the date of commencement.
Family Court held that pursuant to Executive
Law ' 995‑c (9)(b)(iii) it has discretion to expunge a delinquency
respondent=s DNA profile
In
Matter of John R., 69 Misc.3d 493 (Family Court, 2020) the Family Court held
that pursuant to Executive Law ' 995‑c (9)(b)(iii), as interpreted by
Matter of Samy F. v. Fabrizio, 176 A.D.3d 44, 110 N.Y.S.3d 26 [1st Dept.
2019]), it has discretion to expunge a delinquency respondent=s DNA profile,
which had been uploaded into the database of the Office of the Chief Medical
Examiner. The court ordered expungement based upon the facts that the police
gave respondent a can of soda at the precinct and respondent=s genetic material
was surreptitiously taken from the soda can; and respondent successfully
completed a supervised adjournment in contemplation of dismissal (AACD@),
resulting in the dismissal and sealing of his delinquency matter. Respondent
cited to Matter of Jahsim R., 66 Misc. 3d 426, 114 N.Y.S.3d 871 [Fam. Ct.,
Bronx County 2019] ) where a Family Court judge found, based on Samy F., that
the family court does have jurisdiction to expunge a respondent=s DNA profile
from the OCME database. The Jahsim R. court found that Samy F. was applicable
since a juvenile delinquency adjudication, like a youthful offender
adjudication, is not a conviction for a crime. The court agreed with the Jahsim
R. court that regarding the discretionary expungement of DNA profiles from the
OCME database, a juvenile delinquent is not and should not be afforded fewer
adjudication protections than a YO or an adult in equivalent circumstances.
Error to deviate from guideline amount of temporary
maintenance without making a finding that the amount was unjust or
inappropriate
In
Capozzoli v Capozzoli, 2020 WL 6051566 (2d Dept,2020) the Appellate Division
held that it was error to deviate from the guideline amount of temporary
maintenance without making a finding that the amount was unjust or
inappropriate based upon the factors enumerated in Domestic Relations Law §
236(B)(5–a)(h).
Persistent interruptions by Respondent during his
telephonic participation hearing warranted termination of the call
and constituted a default.
In
Matter of Bartosz B, --- N.Y.S.3d ----, 2020 WL 6051501, 2020 N.Y. Slip Op.
05743 (2d Dept.,2020) during a combined dispositional hearing and hearing to
address the mother’s custody petition the father’s persistent interruptions
during his telephonic participation at the hearing warranted termination of the
call and constituted a default.
“Affinity” defined for purposes of Family Offense
Proceeding
In
the Matter of KR, v. FB, --- N.Y.S.3d ----, 2020 WL 6141945, 2020 N.Y. Slip Op.
20270 (Fam Ct, 2020, a family offense proceeding, the court observed
that for purposes article 8, “members of the same family or household” means,
among other things, persons related by consanguinity or affinity. The Court
explained that a relationship of affinity is ‘the relation that one spouse
has to the blood relatives of the other spouse; relationship by marriage’
(Black’s Law Dictionary 70 [10th ed. 2014] ) (Matter of Arnold v. Arnold, 119
AD3d 938, 939, 989 NYS2d 879, 880 [2d Dept 2014]). A relationship meeting
Family Court Act § 812’s requirements exists when the petitioner and respondent
are linked by a combination of consanguinity and affinity, such as a child who
is the blood relative of the child’s parent (consanguinity) and therefore has a
relationship by affinity with the parent’s spouse (frequently called a
step-parent) (Id. [“(W)hile spouses remain married, a stepchild is related by
affinity to a stepparent”] ), The two steps are consanguinity between child and
parent (step one) and affinity between the parent and the stepparent (step
two).
Note: “Affinity” is defined to be, “The relation contracted
by marriage between a husband and his wife's kindred, and between a wife and
her husband's kindred, in contradistinction from consanguinity, or relation by
blood.” Carman v Newell, 1845 WL 4323 (Sup Ct, 1845)
Second Department(1) reminds the matrimonial
courts of their fundamental obligations to conduct a trial on the contested
financial issues, to develop a clear trial record, to render a comprehensive
decision which covers all of the issues in dispute, and to issue a comprehensive
judgment which clearly and definitively sets forth the parties’ rights and
obligations. Courts should refrain from issuing piecemeal decisions. (2)
reiterates rule that distributive award is not a substitute for maintenance;
(3) specifies that trial court must make appropriate
findings as to the parties’ respective combined incomes and current
needs and expenses of the children, and indicate the specific reasons for its
child support award and (4) holds that counsel fees may be awarded to monied
spouse (contrary to First Department rule).
In
Kaufman v Kaufman, --- N.Y.S.3d ----, 2020 WL 6051523, 2020 N.Y. Slip Op. 05732
(2d Dept.,2020)
Maintenance
The
court determined that the defendant’s obligation to pay interim maintenance
would terminate once the plaintiff received $5 million in hand in
non-retirement assets. Until then, the defendant was to pay the plaintiff
$10,000 per month. The payments were to be considered an advance on equitable
distribution, as long as in the final determination of the case (including
after appellate review), the plaintiff receives at least $5 million. The
plaintiff argued on appeal that the Supreme Court’s maintenance
determination eroded her distributive award. In
the context of this case, and under the constraints imposed by the limitations
on the arguments presented by both sides, it found it improper for the Supreme
Court to have directed that the $10,000 monthly payments be treated as a credit
against her equitable distribution award. A distributive award is intended to
reflect the equitable distribution of the marital assets between the parties,
while maintenance is a support payment awarded to assist the less affluent
spouse in meeting his or her reasonable needs in light of the predivorce standard
of living. Where a substantial equitable distribution award
obviates, or reduces, the need for maintenance, it would not be improvident to
provide for, or increase the amount of, maintenance on account of a delay in
the payment of the equitable distribution award. However, it is improper to
give the more affluent spouse a credit against equitable distribution on
account of the maintenance paid. Doing so essentially means that the less
affluent spouse would end up paying his or her own maintenance, though the
court determined that the more affluent spouse should be paying maintenance.
The Appellate Division eliminated that direction by the court.
The
Appellate Divison agreed with plaintiff that the Supreme Court
failed to properly determine the issue of child support in accordance with the
Child Support Standards Act. Where, as here, the combined parental income
exceeds the statutory baseline, the court may apply the statutory percentage to
all or part of the income over the baseline or it may consider the statutory
factors to determine what, if any, additional child support should be awarded.
But whatever the court does, there must be “some record articulation of the
reasons for the court’s choice ... to facilitate ... review.” The court’s
decision ‘should reflect a careful consideration of the stated basis for its
exercise of discretion, the parties’ circumstances, and its reasoning why there
[should or] should not be a departure from the prescribed percentage’ ” ‘In
addition to providing a record articulation for deviating or not deviating from
the statutory formula, a court must relate that record articulation to the
statutory factors’ . In this case, the Supreme Court failed to make
appropriate findings as to the parties’ respective combined incomes and the
current needs and expenses of the children. In view of its bifurcation of the
issues, and the deferral of child support to a later phase of trial that never
occurred, the parties did not have a full and fair opportunity to submit their
evidence as to their current incomes and as to the current needs and expenses
of the children. While the court applied the statutory percentage to $350,000
in combined parental income, it did not provide any explanation as to why it
chose that amount, as opposed to some greater or lesser amount, or why the
resulting amount of child support was the appropriate level of support. For
these reasons, the child support determinations made by the Supreme Court was
set aside, including the allocation of responsibility for statutory add-ons,
and the matter remitted to the Supreme Court for further proceedings.
The
Appellate Division agreed with the defendant’s contention that the
Supreme Court erred in awarding the plaintiff $1.5 million in counsel fees
without holding an evidentiary hearing, as such award was in the nature of a
final award of counsel fees. Despite the court’s framing of the $1.5 million in
counsel fees as an “interim” award, it was tantamount to a final award, as it
was set forth in an order after trial in which the court directed the plaintiff
to settle a judgment of divorce on notice in connection therewith. Where, as
here, the parties did not stipulate to waive a hearing, a final award of
counsel fees can only be granted after an evidentiary hearing is conducted to
permit the opposing party “a meaningful way of testing the [attorney’s] claims
relative to time and value” The Supreme Court erred in endeavoring to avoid its
obligation to hold an appropriate hearing by simply relying upon the history of
interim awards. The requirement of a hearing on counsel fees at the end of a
matrimonial case cannot be skirted by asserting that the issue has been
resolved through successive interim fee motions and orders.
The
Appellate Division pointed out that in exercising judicial
discretion to determine counsel fee applications, the courts must take into
account not only the financial circumstances of the parties but the
circumstances of the case as a whole, including the relative merits of the
parties’ positions and whether either party has delayed the proceedings
unreasonably or engaged in unnecessary litigation. A less-monied spouse should
not be expected to exhaust or spend down a prospective or actual distributive
award in order to pay counsel fees as the result of unreasonable or excessive
litigation conduct by the adverse party (see Prichep v. Prichep, 52 A.D.3d 61,
66, 858 N.Y.S.2d 667). On the other hand, the more affluent spouse should not
be treated as an open-ended checkbook expected to pay for exorbitant legal fees
incurred by the less affluent spouse through excessive litigation or the
assertion of unreasonable positions. Where a party has asserted
unreasonable positions or failed to cooperate in discovery, and thereby increased
the cost of the litigation, the court may make a counsel fee award in favor of
the offended party or not make, or make a lesser award, in favor of the
offending party. The Court observed that an “ assessment of
litigiousness cannot be made simply by looking at which party made the most
motions since the need for motion practice may have been prompted by
unreasonableness on the part of the non-moving party. Determining whether
conduct is reasonable or obstructive on the basis of conflicting affirmations
of counsel may often prove to be difficult. An evidentiary hearing may well be
of inestimable value in assessing the relative merit of the parties’ conduct.
The court held that the issue of counsel fees case had to
be addressed at an evidentiary hearing.
There is no basis for an award of counsel fees where
the court’s award to the defendant made no reference to the parties’ finances.
In
Schwartz v Schwartz, --- N.Y.S.3d ----, 2020 WL 5806649, 2020 N.Y. Slip Op.
05248(2d Dept.,2020) a post-judgment application for permission to relocate
FCA § 716, which permits the Family Court to
substitute a neglect petition for a PINS petition does not specify exactly what
substitution entails, or procedurally how the case advanced ,and has not been
clarified by the Courts.
In
Matter of Pins Proceeding Beekmantown Central School District v John,.---
N.Y.S.3d ----, 2020 WL 5950158, 2020 N.Y. Slip Op. 20252(Family Court, 2020).
In order to give meaning to FCA § 716, and to protect Ms. S.’s Due Process
rights, the Court concluded that the term “substitute” in the context of FCA §
716, requires the filing of a new valid Article 10 petition. While the Court
has the authority to authorize anyone to file an Article 10 petition pursuant
to FCA § 1032, the Court found that it would serve both the interest of justice
and the administration of justice to require the Clinton County Department of
Social Services to file a petition.
Where it is evident that Supreme Court considered all
relevant factors and the reasons for its decision are articulated, the court is
not required to specifically cite to and analyze each statutory factor.
In
Fishman v Fishman, --- N.Y.S.3d ----, 2020 WL 5223579, 2020 N.Y. Slip Op. 04827
Before a court strikes a pleading or precludes
evidence based failure to provide court-ordered discovery, there must be a
clear showing that the failure was willful and contumacious.
In
Ritornato v Ritornato, --- N.Y.S.3d ----, 2020 WL 5540086 (Mem), 2020 N.Y. Slip
Op. 04981(2d Dept.,2020) 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”.
A Prior restraint on spouses speech must be couched in
narrowest terms that will accomplish the pin-pointed objective permitted by
constitutional mandate and the essential needs of the public order
In
Karantinidis v Karantinidis, --- N.Y.S.3d ----, 2020 WL 5648552, 2020 N.Y. Slip
Op. 05039 (2d Dept.,2020) the Appellate Division held that an injunctive order
issued in the area of First Amendment rights must be couched in the narrowest
terms that will accomplish the pin-pointed objective permitted by
constitutional mandate and the essential needs of the public order (see Carroll
v. President and Comm’rs of Princess Anne, 393 U.S. 175, 183, 89 S.Ct. 347, 21
L.Ed.2d 325). The order must be tailored as precisely as possible to the exact
needs of the case.
Objections from nonfinal orders made by a Support
Magistrate are typically not reviewed
In
Swift v Mead, --- N.Y.S.3d ----, 2020 WL 5665278, 2020 N.Y. Slip Op. 05099(3rd Dept.,2020)
the Appellate Division held that objections from nonfinal orders made by a
Support Magistrate are typically not reviewed unless they could lead to
irreparable harm”
