Recent Decisions June 2, 2021

 

Appellate Division, Second Department

 

 

Party claiming an investment account was actively managed has the burden of proof with respect to the claim.  Expenses of leisure, extracurricular and enrichment activities are encompassed within the basic child support award. A court can order a parent to pay these expenses over and above basic child support, but it is a deviation from the basic statutory formula and requires an analysis under the factors set forth in Domestic Relations Law § 240(1–b)(f).

            In Sinnott v Sinnott, --- N.Y.S.3d ----, 2021 WL 1901679, 2021 N.Y. Slip Op. 03073 (2d Dept,2021) the parties were married in 1989, and were the parents of one child born in 2003, as well as two emancipated children. The plaintiff commenced this action on February 16, 2016, by filing a summons and complaint. Pursuant to a so-ordered custody and parenting stipulation, the plaintiff had sole legal and residential custody of the child. The defendant appealed from so much of the judgment as denied him a separate property credit of $937,000, (2) directed him to pay child support and add-on expenses until the child reached the age of 22 years and six months under stated circumstances, (3) directed him to pay 80% of the child’s private high school tuition, fees, books, supplies, materials, class trips, enrichment activities, and all school-related expenses, and (4) directed that certain investment accounts be equally divided between the parties without specifying a date of valuation for those accounts or limiting distribution only to marital property. The plaintiff cross-appealed from so much of the judgment as (1) directed the defendant to pay child support of only $4,281.44 per month and only 80% of add-on expenses for the child, (2) declined to make the award of maintenance and child support retroactive to the date of commencement of the action, (3) declined to direct the defendant to pay the cost of health insurance for the plaintiff, and (4) declined to direct the defendant to obtain or maintain life insurance in an amount sufficient to secure his support obligations.

 

            The defendant contended on appeal that the Supreme Court erred by failing to direct that the plaintiff’s investment accounts should be valued as of the date of commencement of the action, and that only marital property in those accounts should be subject to equitable distribution. The valuation date of a marital asset may be set “anytime from the date of commencement of the action to the date of trial. The court failed to set forth the valuation date for the investment accounts . The party claiming that an account was actively managed, or contained separate property not subject to equitable distribution, has the burden of proof with respect to those claims. The defendant failed to provide evidence as to whether the accounts in question were actively managed or passive. The Supreme Court therefore did not improvidently exercise its discretion in treating those accounts, in effect, as passive accounts, by its direction that the accounts be liquidated within 30 days from the entry of the decision after trial and that the resulting proceeds be divided 50–50. However, since assets must be valued at a date not earlier than an action’s commencement nor later than the trial it modified modify the judgment to the extent of directing that the accounts be valued as of August 28, 2018, the first date of trial.

 

            The Appellate Division held that the Supreme Court made numerous errors when calculating the defendant’s basic child support obligation under the Child Support Standards Act (CSSA). Supreme Court incorrectly calculated his gross income for 2017. The defendant’s gross (total) income as should have been ... reported in the most recent federal income tax return was $1,037,044, and, the defendant’s gross income for CSSA purposes was $1,061,044.25. The defendant’s income for CSSA purposes was $975,399.57. The plaintiff’s income for CSSA purposes was $78,000 per year. The defendant’s share of the basic annual support obligation was 92.6% of $25,160 or the annual sum of $23,298.16. It modified the judgment of divorce to direct the defendant to pay the plaintiff $4,591.42 per month in basic child support.

 

            Regarding the add-on for uncovered, unreimbursed medical and related expenses, responsibility for future reasonable unreimbursed health care expenses shall be prorated in the same proportion or percentage as each parent’s income bears to the combined parental income. It modified the judgment of divorce to provide that the defendant’s pro rata share of the child’s uncovered, unreimbursed medical and related expenses was 92.6%, the same proportion as his income was to the combined parental income

 

            The Appellate Division noted that education expenses are not directly connected to the basic child support calculation” and are not necessarily prorated in the same proportion or percentage as each parent’s income bears to the combined parental income. Supreme Court did not improvidently exercise its discretion by directing the defendant to pay 80% of the child’s tuition at Marymount High School of New York, or a similar private high school, nor by requiring the defendant to pay 80% of the child’s fees, books, supplies, and materials.

 

            The Appellate Division held that Supreme Court improvidently exercised its discretion by directing the defendant to pay 80% of the child’s class trips, enrichment activities, and all other school related expenses. Basic child support, when calculated properly, is presumed to meet all the child’s basic needs. Thus, the expenses of leisure, extracurricular and enrichment activities, such as after-school clubs, sporting activities, etc., are usually not awarded separately, but are encompassed within the basic child support award. A court can order a parent to pay these expenses over and above basic child support. However, if it does so, it is a deviation from the basic statutory formula and requires an analysis under the factors set forth in Domestic Relations Law § 240(1–b)(f). Although all the factors do not have to present, the court needs to articulate its reasons for making such a deviation from basic child support and relate those reasons to the statutory paragraph (f) factors. Here, the Supreme Court did not provide a benchmark for what class trips, enrichment activities, and all other school related expenses could include and there was no cap on the total cost. In any event, under the circumstances of this case, it found that the award of basic child support was sufficient to meet these needs.

 

            The Appellate Division held that  Supreme Court improperly defendant to pay basic child-support and add-on expenses for the child after she reaches the age of 21. A parent has no legal obligation to provide for or contribute to the support of a child over the age of 21.

 

            The Appellate Division held that Supreme Court should not have directed the defendant to pay maintenance and child support commencing on the first day of the first month following its decision after trial. A party’s maintenance and child support obligations commence, and are retroactive to, the date the applications for maintenance and child support were first made, which, in this case, was February 16, 2016. However, the party is also entitled to a credit for any amount of temporary maintenance and child support already paid. Here, the defendant may be entitled to credit for voluntary child support payments which were made prior to a pendente lite order dated August 16, 2017, and for voluntary maintenance payments made during the pendency of the action. In addition, he was entitled to a credit for any amount of temporary maintenance and child support which was paid pursuant to the pendente lite order. It remitted the matter to the Supreme Court, for a determination as to the amount of retroactive child support, including add-ons, and maintenance arrears from February 16, 2016, giving the defendant appropriate credits

 

            The Appellate Division held that under the circumstances of this case, the Supreme Court should have directed the defendant to pay the plaintiff’s health insurance costs during the period the defendant is obligated to pay maintenance, and should have directed the defendant to obtain or maintain a policy of life insurance for the benefit of the plaintiff and the child in an amount sufficient to secure his maintenance, child support, and health insurance obligations.

 

 

 

Under UIFSA Florida retained exclusive jurisdiction over his child support obligation to the daughter, where mother died, and father remained in Florida although daughter moved to New York and under Florida law, his obligation to support the daughter ceased when she turned 18

 

            In Matter of Nassau County Department of Social Services v Ablog, 2021 WL 1899886 (2d Dept.,2021) pursuant to a 2009 Florida judgment of divorce, the father was obligated to pay child support for the daughter “until the child attains the age of eighteen years or graduates from high school, as long as the child is progressing in school and will graduate before attaining the age of nineteen years.” The daughter resided with her mother following the judgment of divorce until February 2018, when the mother died and the father became the custodial parent. The daughter turned 18 years of age in September 2018. She moved to New York in 2019. The father continued to reside in Florida. The daughter applied for and began receiving public assistance in Nassau County. In July 2019, the Nassau County Department of Social Services filed a petition for support on behalf of the daughter. The father moved to dismiss the petition for lack of subject matter jurisdiction pursuant to the Uniform Interstate Family Support Act (UIFSA), arguing that Florida retained exclusive jurisdiction over his child support obligation to the daughter, and that under Florida law, his obligation to support the daughter ceased when she turned 18. The Support Magistrate denied the motion, finding that the subject application was not seeking to modify the father’s existing child support obligation in Florida, but, instead, was a de novo application for support. The Appellate Division reversed. It held that under the [Full Faith and Credit for Child Support Orders Act] and UIFSA, the state issuing a child support order retains continuing, exclusive jurisdiction over its child support orders so long as an individual contestant continues to reside in the issuing state” (Matter of Spencer v. Spencer, 10 N.Y.3d 60, 66, 853 N.Y.S.2d 274; see 28 USC § 1738B[d]; cf. Family Ct Act § 580–205). Accordingly, a state may modify the issuing state’s order of child support only when the issuing state has lost continuing, exclusive jurisdiction. The federal statute defines a “modification” to mean “a change in a child support order that affects the amount, scope, or duration of the order and modifies, replaces, supersedes, or otherwise is made subsequent to the child support order” (28 USC § 1738B[b][8]). Under the plain language of the federal statute, the New York order of support was a “modification” of the Florida judgment. Since the father still resided in Florida, that state had continuing, exclusive jurisdiction of the child support order, despite the termination of his obligations under that order, and New York did  not have subject matter jurisdiction to modify that order.

 

 

 

There is a rebuttable presumption that interim counsel fees shall be awarded to less monied spouse, and courts should normally grant a request made by the nonmonied spouse, in the absence of good cause to deny the request 

 

            In Tomassetti v Tomassetti, --- N.Y.S.3d ----, 2021 WL 1897796 (Mem), 2021 N.Y. Slip Op. 03075 (2d Dept.,2021) the plaintiff commenced an action for a divorce against the defendant in 2017. In April 2018, the Supreme Court awarded the plaintiff interim counsel fees of $200,000. In August 2018, the plaintiff filed a motion seeking additional interim counsel fees of $376,524. The court granted the plaintiff’s motion to the extent of directing the defendant to pay$165,000 to the plaintiff’s counsel. The Appellate Division observed that there is a rebuttable presumption that interim counsel fees shall be awarded to the less monied spouse, and courts should normally exercise their discretion to grant such a request made by the nonmonied spouse, in the absence of good cause to deny the request. It found that the significant disparity between the financial circumstances of the defendant, a real estate investor and developer with considerable disposable income and a net worth approaching $200 million, and those of the plaintiff could not seriously be disputed. It held that, the Supreme Court improvidently exercised its discretion in limiting, without good cause, the plaintiff’s award of additional interim counsel fees to $165,000, which was far less than the amount of legal fees the plaintiff had already incurred. It found that an award of additional interim counsel fees of $370,000 was appropriate.

 

 

Supreme Court

 

 

Contract for Preservations and Disposition of Embryos not violative of Domestic Relations Law §236(B)(3)

 

            In K.G., v. J.G.,--- N.Y.S.3d ----, 2021 WL 2021873, 2021 N.Y. Slip Op. 21140 (Sup Ct, 2021)  an action for a divorce, the plaintiff  moved for declaratory judgment regarding her rights under a contract with her husband and Reproductive Medical Associates of New York (“RMA”) containing an agreement entitled “Consent for Cryopreservation of Embryo(s) by Couples with Joint Custody.” Plaintiff argued that pursuant to this specific contract, she had the right to dispositional control of the embryos created by RMA with the parties’ genetic material. Defendant  cross moved for summary judgment, arguing that the contract was unenforceable. The Consent agreement provided for of the embryos, and the procedures for using the embryos or for transferring the embryos should the parties wish another facility to preserve them. The contract  was made with RMA’s pre-printed forms and was signed by the plaintiff and the defendant, but was not notarized or subscribed and acknowledged in the form required for a deed to be recorded. Supreme Court held that Domestic Relations Law §236(B)(3) which requires agreements between married couples to be subscribed and acknowledged in the form required for a deed to be recorded, was not applicable to this contract which included services from and benefits to a third party. The Court of Appeals in Kass v. Kass, 91 N.Y.2d 554, 673 N.Y.S.2d 350, 696 N.E.2d 174 (1998) unequivocally stated that “agreements between progenitors, or gamete donors, regarding disposition of their pre-zygotes should generally be presumed valid and binding and enforced in any dispute between them.” Furthermore, IVF contracts such as this one are not violative of public policy and are specifically encouraged by the Kass decision. Plaintiff’s motion to declare that the post-marital dispositional election in the Consent agreement executed on May 18, 2016 was enforceable was  granted; the defendant’s cross motion was denied.

Recent Decisions May 18, 2021

 May 16, 2021

Appellate Division, Second Department

Supreme Court had authority to modify child support under DRL § 236[B][9][b][2][i] upon showing substantial change in circumstances despite provision of agreement restricting modifications of child support

In Park v Park, --- N.Y.S.3d ----, 2021 WL 1653674, 2021 N.Y. Slip Op. 02536 (2d Dept., 2021) the parties were married in June 2000, and had two children, born in 2002 and 2008. On November 14, 2014, the parties entered into a stipulation of settlement in which they agreed to share joint legal custody of the children, with the plaintiff having primary residential custody. In an agreement dated March 24, 2016, the parties agreed that the defendant would pay maintenance to the plaintiff for a period of 18 months, and the defendant would also pay child support. A judgment of divorce dated September 16, 2016, incorporated but did not merge the stipulation of settlement and the maintenance and support agreement. The Appellate Division held, inter alia, that Supreme Court had the authority to modify the parties’ child support obligations upon a showing of a substantial change in circumstances despite the provision of the maintenance and support agreement restricting modifications of the child support obligation during the first 18 months following the parties’ divorce (citing Domestic Relations Law § 236[B][9][b][2][i]; Bishop v. Bishop, 170 A.D.3d 642, 644, 95 N.Y.S.3d 317) 

Comment:  

Domestic Relations Law § 236[B][9][b][2][i] provides, in part:  The court may modify an order of child support, including an order incorporating without merging an agreement or stipulation of the parties, upon a showing of a substantial change in circumstances. 

In Bishop v. Bishop, 170 A.D.3d 642, 644, 95 N.Y.S.3d 317 (2d Dept.,2019) the parties' stipulation of settlement, which set forth the plaintiff's child support obligation, was executed after the effective date of the 2010 amendments to Domestic Relations Law § 236 (B) and Family Court Act § 451. Since the parties' stipulation of settlement post-dated the 2010 amendments, the defendant was not required to demonstrate a substantial and unanticipated change in circumstances resulting in a concomitant need, or that the stipulation of settlement was not fair and equitable when entered into, to establish her entitlement to an upward modification of the plaintiff's child support obligation. Additionally, the parties specifically opted out of those provisions of the Domestic Relations Law which allow for modification when “three years have passed since the order was entered, last modified or adjusted” or “there has been a change in either party's gross income by fifteen percent or more since the order was entered, last modified, or adjusted” (Domestic Relations Law § 236 [B] [9] [b] [2] [ii] [A], [B]). Thus, in order to establish her entitlement to an upward modification of the plaintiff's child support obligation, the defendant had the burden of establishing “a substantial change in circumstances” (Domestic Relations Law § 236 [B] [9] [b] [2] [i]; Family Ct Act § 451 [3] [a]). A substantial change in circumstances may be measured by comparing the parties' financial situation at the time of the application for modification with that existing at the time the order or judgment sought to be modified was issued. 

Where habeas corpus proceeding is brought pursuant to DRL§ 70, and children resided outside of this State, reference must be made to the UCCJEA to determine if this state has “home state” jurisdiction 

  In Matter of Kassim v Al-Maliki, --- N.Y.S.3d ----, 2021 WL 1774145 (Mem), 2021 N.Y. Slip Op. 02800 (2d Dept.,2021) the parties lived with their children in New York until approximately the spring of 2016, when they traveled together to Yemen. The mother alleged that the family traveled to Yemen for the Ramadan and Eid holidays with the intention of returning to New York at the end of the holidays. The father alleged that the parties jointly agreed to relocate the family to Yemen. According to the mother, after the family arrived in Yemen, the father confiscated the passports of the mother and the children, such that they could not return to New York. The mother alleged that she was not able to return to the United States until 2019, after she signed a divorce agreement in the presence of the father and several other men, all of whom were carrying weapons, including firearms and traditional swords. In exchange for signing the agreement, the father returned the mother’s passport to her. The mother returned to New York in 2019 and commenced a proceeding, seeking a writ of habeas corpus to compel the father to produce the children before the Family Court and custody of the children. On October 9, 2019, the court directed the father, who was in New York at the time, to return the children to the court’s jurisdiction, to surrender his passport, and to remain in the court’s jurisdiction. The father moved to dismiss the petition for lack of subject matter jurisdiction. Subsequently, the father returned to Yemen, and the mother moved to hold the father in civil and criminal contempt and to issue a warrant for the father’s arrest and to compel his appearance in court. The court, without a hearing, granted the father’s motion, dismissed the petition, and denied the mother’s motion, based on its finding that it lacked subject matter jurisdiction over the proceeding. The Appellate Division noted that pursuant to Domestic Relations Law § 70, “[w]here a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court, on due consideration, may award ... custody of such child to either parent.” Since the children resided outside of this State, reference must necessarily be made to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which provides, inter alia, that “a court of this state has jurisdiction to make an initial child custody determination only if: (a) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state” (Domestic Relations Law § 76[1][a]). The UCCJEA defines “home state” as “the state in which a child lived with a parent ... for at least six consecutive months immediately before the commencement of a child custody proceeding” (Domestic Relations Law § 75–a [7]). It found that the Family Court was required to hold a hearing as to the issue of whether New York or Yemen was the children’s home state, as there were disputed issues of fact regarding the circumstances under which the parties moved with the children from New York to Yemen. The court erred in concluding that it lacked subject matter jurisdiction to determine the mother’s petition without conducting a hearing. The petition was reinstated and the matter was remitted to the Family Court, for a hearing and new determination.

At dispositional stage of a proceeding to terminate parental rights, Family Court must make its determination based solely on the best interests of the child. The court has to either dismiss the petition, suspend judgment for up to one year, or terminate parental rights

In Matter of Grace G, --- N.Y.S.3d ----, 2021 WL 1774163, 2021 N.Y. Slip Op. 02795(2d Dept.,2021) a proceeding pursuant to Social Services Law § 384–b to terminate parental rights, the mother appealed from an order which upon a finding that the mother had permanently neglected the child, terminated the mother’s parental rights. The Appellate Division reversed and remitted for entry of a suspended judgment. It observed that at the dispositional stage of a proceeding to terminate parental rights, the Family Court must make its determination based solely on the best interests of the child (see Family Ct Act § 631). Depending on the best interests of the child, the court has to either dismiss the petition, suspend judgment for up to one year, or terminate parental rights (see Family Ct Act §§ 631, 633[b]; Social Services Law § 384–b[8][f]). A dispositional order suspending judgment provides a brief grace period to give a parent found to have permanently neglected a child a second chance to prepare for reunification with the child (see Family Ct Act § 633; Matter of Michael B., 80 N.Y.2d 299, 311, 590 N.Y.S.2d 60). Here, the Family Court’s determination to terminate the mother’s parental rights rather than to enter a suspended judgment was not in the child’s best interests. Although the child had been in foster care for several years, it was undisputed that the mother engaged in regular phone conversations with the child at least once a week; that, since March 2019, following a difficult pregnancy with her younger child which impeded her ability to travel from her apartment in upper Manhattan to the agency in Jamaica, Queens, where visitation occurred, she had been regularly visiting the child; that the child continued to refer to the mother as her mother and her foster parent as her auntie; and that there was a strong bond between the mother and the child and between the child and the mother’s younger child, who resided with the mother. In addition, the mother had completed a drug treatment program and was drug free, attended a parenting class with intentions to attend additional classes, underwent a mental health evaluation, and was receiving therapy and preventive services. Further, following the child’s placement in foster care, the mother, who, at the time that she gave birth to the child, was 20 years old and living in a group home, having entered foster care herself at the age of 17, obtained an associate’s degree and secured an apartment. Moreover, in a related derivative neglect proceeding filed with respect to the mother’s younger child, the mother was granted a suspended judgment which expired in July 2020. Consequently, under these circumstances, after the dispositional hearing, the court should have entered an order of disposition suspending judgment as requested by the mother and the attorney for the child, since the record demonstrated that such a disposition would have been in the child’s best interests.

Appellate Division, Third Department

Eight-year-old victim could testify as a sworn witness in juvenile delinquency proceeding despite preliminary questioning indicating his lack of knowledge of an oath where subsequent questioning established he understood difference between the truth and lie.

In Matter of Alexander CC, 191 A.D.3d 1113, 142 N.Y.S.3d 223, 2021 N.Y. Slip Op. 01101 (3d Dept.,2021) a juvenile delinquency proceeding, the Appellate Division held that the eight-year-old victim could testify as a sworn witness despite preliminary questioning indicating his lack of knowledge of an oath. Pursuant to Family Ct Act § 343.1, “[a] witness less than nine years old may not testify under oath unless the court is satisfied that he or she understands the nature of an oath” (Family Ct Act § 343.1[2]). Although preliminary questioning of the victim indicated that he did not know what an oath is, this fact was not determinative particularly where, as here, subsequent questioning of the victim by petitioner and Family Court established that he understood the difference between the truth and lie, understood that he was required to testify truthfully at the fact-finding hearing and promised that he would so testify. The victim also evinced an understanding that, if he were to tell a lie, he could “get in trouble” and be punished by the court.

Literal compliance with terms of the suspended judgment will not suffice to prevent finding a violation. Must also show progress has been made to overcome specific problems which led to the removal. 

In Matter of Nahlaya MM., 2021 WL 1673597 (3d Dept.,2021) the Appellate Division affirmed an order pursuant to Social Services Law § 384–b, which granted petitioner’s motions to revoke a suspended judgment, and terminated respondent’s parental rights. It held that a suspended judgment is intended to provide a parent who has permanently neglected his or her children with a brief period within which to become a fit parent so that the children can be returned to him or her in safety. A parent’s noncompliance with the terms of the suspended judgment during this grace period, if established by a preponderance of the evidence, may end with revocation of the suspended judgment and termination of his or her parental rights. Literal compliance with the terms of the suspended judgment will not suffice to prevent a finding of a violation. A parent must also show that progress has been made to overcome the specific problems which led to the removal of the children. While a parent’s failure to comply with the conditions of a suspended judgment does not automatically compel termination of parental rights, that noncompliance constitutes strong evidence that termination is, in fact, in the best interests of the child.

Although father’s modification petition not technically a relocation application as he was not primary custodian “the practical effect of granting his request would be the relocation of the child, relocation must be considered within that framework

In Matter of Jelani PP v Melissa QQ, --- N.Y.S.3d ----, 2021 WL 1675714, 2021 N.Y. Slip Op. 02577(3d Dept.,2021) Petitioner (father) resided in Florida. Pursuant to a July 2016 custody order, entered on consent, Family Court granted the parents joint legal custody of the child, the mother primary physical custody of the child and the father specified parenting time. In July 2018, the father commenced a custody modification proceeding seeking primary physical custody of the child, alleging that the mother failed to, among other things, adequately provide for the child’s educational well-being. Following a fact-finding hearing, Family Court continued the award of joint legal custody, with the mother maintaining primary physical placement of the child, but modified the order to provide for, among other things, expanded parenting time for the father during the child’s summer vacation. The Appellate Division affirmed. Initially, it noted that, despite being treated as such by Family Court, the father’s modification petition was not technically a relocation application inasmuch as he was not the primary custodian of the child pursuant to the July 2016 custody order. However, inasmuch as “the practical effect of granting the father’s request for modification of custody would be the relocation of the child relocation must be considered within that framework. Therefore, the father was required to demonstrate a change in circumstances, which would then warrant an inquiry into whether modification of the existing custody order was necessary to further the best interests of the child, with the proposed relocation being one of the factors for the court to consider in making its best interests determination.

 

 Lincoln hearing will not be conducted if it will have a potential negative impact on the child

In Matter of Ellen H v Joseph H, --- N.Y.S.3d ----, 2021 WL 1676661, 2021 N.Y. Slip Op. 02567(3d Dept.,2021) the Appellate Division affirmed an order which modified the joint custody, shared physical custody order entered on consent and awarded the mother sole legal and physical custody. It rejected the fathers argument on appeal that Family Court erred for failing to conduct a Lincoln hearing. The determination of whether to hold a Lincoln hearing lies within Family Court’s discretion and such a hearing will not be conducted if it will have a potential negative impact on the child. The father’s attorney requested that Family Court conduct a Lincoln hearing at the conclusion of the fact-finding hearing. The court denied the request, agreeing with the AFC that a Lincoln hearing would only cause more unnecessary stress for the children, particularly since the relevant and available facts were already before the court. Although a Lincoln hearing is the preferred manner for ascertaining the children’s wishes, such a hearing is not mandatory, particularly where, as here, the record reflects that the hearing itself may do more harm than good.

There is no requirement that a notice of motion list the statute or regulation that is the basis of the motion as long as some grounds are mentioned. Where there is no misunderstanding or prejudice, a court may grant relief that is warranted by the facts plainly appearing on the motion papers.

In Rosenheck v Schachter, 2021 WL 1795298 (3d Dept.,2021) the wife moved in Supreme Court for counsel fees related to certain post judgment motions made by the husband in the Court of Appeals. The husband argued on appeal that the wife’s notice of motion was defective because it failed to specify the grounds on which the motion was based, thus prejudicing the husband. The Appellate Division observed, citing CPLR 2214[a], a “notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor, but there is no requirement that the notice of motion list the statute or regulation that is the basis of the motion as long as some grounds are mentioned. (Shields v. Carbone, 99 A.D.3d 1100, 1102 [2012]). In practice, the notice of motion specifies the time and place of the hearing as well as the relief requested while the affidavits, affirmations, and memorandum of law state the grounds for the relief. Where there is no misunderstanding or prejudice, a court may grant relief that is warranted by the facts plainly appearing on the motion papers on both sides. In support of her motion, the wife submitted the Court’s 2018 order, finding that the wife was entitled to appellate counsel fees based on the agreement, as well as various correspondence exchanged between the parties’ attorneys, one of which communicated to the husband’s counsel that the wife would be seeking judicial intervention if the counsel fees were not rendered pursuant to the agreement. Although the husband contended that he was prejudiced by the wife’s alleged failure to provide the grounds of her motion, it noted that the husband provided Supreme Court with a timely and detailed reply with various exhibits, including a copy of the agreement. Given the clear lack of prejudice or misunderstanding, it found that the court properly rendered a determination after examining all of the motion papers submitted.

 

Where child of mixed race continued presence of confederate flag painted on a rock near her driveway would constitute a change in circumstances and factor in any future best interests analysis

In Christie BB v Isaiah CC, --- N.Y.S.3d ----, 2021 WL 1795373, 2021 N.Y. Slip Op. 02847 (3d Dept.,2021) following a fact-finding hearing, Family Court determined that the parties should continue to have joint legal and physical custody of the child, with parenting time on alternating weeks. However, the court expanded upon the prior order by adding a provision that the mother’s home shall be considered the child’s primary residence for the purpose of schooling. The Appellate Divison modified this portion of Family Court’s order. Although not addressed by Family Court or the attorney for the child, the Appellate Division pointed out that mother’s testimony at the hearing, as well as an exhibit admitted into evidence, revealed that she had a small confederate flag painted on a rock near her driveway. It stated, given that the child was of mixed race, it would seem apparent that the presence of the flag is not in the child’s best interests, as the mother must encourage and teach the child to embrace her mixed race identity, rather than thrust her into a world that only makes sense through the tortured lens of cognitive dissonance. Further, and viewed pragmatically, the presence of the confederate flag is a symbol inflaming the already strained relationship between the parties. As such, while recognizing that the First Amendment protects the mother’s right to display the flag, if it is not removed by June 1, 2021, its continued presence would constitute a change in circumstances and Family Court shall factor this into any future best interests analysis.

 

Appellate Division, Fourth Department

Error to award maintenance for period of time in excess of recommendation in the advisory schedule in DRL § 236 (B) (6) (f) (1) without adequately demonstrating reliance on relevant statutory factors enumerated in DRL § 236 (B) (6) (e)

In Gutierrez v Gutierrez, --- N.Y.S.3d ----, 2021 WL 1711367 (Mem), 2021 N.Y. Slip Op. 02662 (4th Dept.,2021) the defendant husband appealed from a judgment of divorce that, inter alia, directed him to pay plaintiff wife $750 a week in maintenance for a period of 17 years. The Appellate Division agreed with his argument that Supreme Court erred in awarding maintenance for a period of time in excess of the recommendation set forth in the advisory schedule in Domestic Relations Law § 236 (B) (6) (f) (1) without adequately demonstrating its reliance on the relevant statutory factors enumerated in Domestic Relations Law § 236 (B) (6) (e) (see § 236 [B] [6] [f] [2]). The Appellate Division also concluded that the court erred in awarding plaintiff maintenance without sufficiently setting forth the relevant factors enumerated in Domestic Relations Law § 236 (B) (6) (e) that it relied on in reaching its determination. Although the court need not specifically cite the factors enumerated in that section, its analysis must show that it at least considered the relevant factors in making its determination. The determination must also reflect an appropriate balancing of the wife’s needs and the husband’s ability to pay. The court stated that it awarded plaintiff $750 per week, an amount deviating from the statutory guidelines, for a duration in excess of the statutory guidelines based on the length of the marriage, the parties’ disproportionate earning capacities, and defendant’s tax debt. However, although the statutory guidelines use the length of the marriage to calculate the duration of the maintenance award, the length of the parties’ marriage is not a factor enumerated in Domestic Relations Law § 236 (B) (6) (e). Further, the court did not state what factors it considered, in addition to actual earnings, in determining the parties’ earning capacities. Moreover, the court did not determine whether defendant’s substantial tax debt would impede his ability to pay plaintiff’s maintenance award. Thus, the court failed to show that it considered any of the factors enumerated in Domestic Relations Law § 236 (B) (6) (e) (1) in making its determination of both the amount and duration of the maintenance award. It vacated the maintenance award and remitted the matter to Supreme Court to determine the amount and duration of maintenance, if any, after setting forth all relevant factors that it considered in making its decision.

 

May 1, 2021

A defect in subject matter jurisdiction may be raised at any time by any party

In Hook v Snyder, --- N.Y.S.3d ----, 2021 WL 1567049 (Mem), 2021 N.Y. Slip Op. 02458 (1st Dept.,2021) the Appellate Division reversed an order which denied respondent mother’s motion to dismiss the custody modification petition on the ground of lack of subject matter jurisdiction, and granted the motion. It held among other things that contrary to petitioner’s contention, respondent’s prior appearances and execution of a stipulation in Family Court in New York did not constitute a waiver of her lack of subject matter jurisdiction defense; a defect in subject matter jurisdiction may be raised at any time by any party or by the court itself, and subject matter jurisdiction cannot be created through waiver, estoppel, laches, or consent (Matter of Nemes v. Tutino, 173 A.D.3d 16, 23, 101 N.Y.S.3d 538 [4th Dept. 2019]

 

Where a prior action for a divorce is discontinued, and the parties reconcile or continue the marital relationship, and receive the benefits of the relationship, property acquired after the discontinuance may be deemed marital property. To determine whether this standard has been met, inquiry must be made into the nature of the marital relationship within the context of the statutory scheme for equitable distribution.

In Potvin v Potvin, --- N.Y.S.3d ----, 2021 WL 1556056, 2021 N.Y. Slip Op. 02429(2d Dept.,2021) the parties were married in 1974 and had two adult children. On July 9, 2015, the plaintiff commenced this action for a separation, and the defendant counterclaimed for a divorce. At trial, testimony was elicited that the parties previously separated in 1991. The plaintiff commenced a prior action for a divorce in 1996, and the defendant agreed to pay child support in the sum of $1,200 per month. The plaintiff discontinued the prior divorce action in 1998. The defendant then moved back into the marital residence. The plaintiff testified, however, that the parties entered into an oral agreement that they were not reconciling and that each waived any right to the other’s assets. The defendant denied entering into such an agreement and claimed it was his understanding that the parties had reconciled. However, the defendant continued to pay the plaintiff $1,200 per month as his contribution toward household expenses until 2012. In a decision and order dated November 22, 2017, made after the trial, the Supreme Court, inter alia, denied the defendant’s motion for an award of counsel fees. The court also found that there was no “economic partnership” between the parties at any time following their separation in 1991, and that “each party shall retain ownership of the assets under his or her dominion and control,” including cash accounts, stocks, stock options, pension and retirement accounts, life insurance policies, and deferred compensation plans. In a judgment of divorce dated December 19, 2017, the court, among other things, directed that each party shall retain sole ownership of the assets in their own names, and awarded the plaintiff the marital residence, with a directive that the plaintiff pay the defendant 25% of the appraised value of the marital residence, less the $25,500 interim award and the sum of $1,972.60 advanced by the plaintiff for the cost of the trial transcript. The court also directed the plaintiff to pay the defendant maintenance of $1,414 per week for one year, and directed that each party shall bear the cost of their own counsel fees.  

The Appellate Division observed that where a prior action for a divorce is withdrawn or discontinued, and the parties “either reconcile or continue the marital relationship, and continue to receive the benefits of the relationship,” property acquired after the withdrawal or discontinuance of the prior divorce action may be deemed marital property (Iwanow v. Iwanow, 39 A.D.3d 471, 474, 834 N.Y.S.2d 247). “[I]n order to determine whether this standard has been met, inquiry must be made into the nature of the marital relationship within the context of the statutory scheme for equitable distribution. The parties resided together in the marital residence from 1998 until the commencement of the subject action in 2015, and for most of that time, shared the marital residence with the children. During that time, the parties visited relatives and attended social functions together, went on vacations together, and periodically engaged in sexual relations. Although the parties maintained separate bank accounts and credit cards, the parties filed joint tax returns and shared many of the family’s expenses, including the children’s college tuition and home renovations. Moreover, the parties named each other as executors and beneficiaries in their wills. Thus, the evidence demonstrated that the parties functioned as an “economic partnership” after the discontinuance of the prior divorce action, and the Supreme Court improperly found that the parties “ceased functioning as an economic partnership” and “lived separate financial lives” starting in 1991. Consequently, the court improvidently exercised its discretion in directing that the parties retain sole ownership of certain assets in their own names. Moreover, there was no written agreement to keep the parties’ finances separate. Marital partners may agree that property they acquire during the marriage will be divided in a particular manner, but that agreement must be in writing. Here, the alleged oral agreement between the parties did  not constitute such an agreement. Thus, the distribution of marital property must be based upon the equitable consideration and application of  enumerated factors and the court is required to set forth the factors it considered and the reasons for its decision (Domestic Relations Law § 236[B][5][g]). Here, the Supreme Court failed to set forth the factors it considered in making its decision as to equitable distribution, since the court only indicated that it relied upon the parties’ alleged oral agreement. It remitted the matter to the Supreme Court for a new determination of the issue of equitable distribution based upon findings of fact in compliance with Domestic Relations Law § 236(B).

  Furthermore, the Supreme Court erred in denying that branch of the defendant’s motion which was for an award of counsel fees. Since the defendant was the less monied spouse, the rebuttable presumption was applicable, and the plaintiff did not rebut that presumption. It remitted remit the matter to the Supreme Court for a hearing and determination as to the appropriate amount of counsel fees incurred by the defendant.

Parental access determinations should generally be made only after a full and plenary hearing and inquiry

In Matter of Vazquez v Bahr, --- N.Y.S.3d ----, 2021 WL 1556199 (Mem), 2021 N.Y. Slip Op. 02397 (2d Dept.,2021) the Appellate Division held that parental access determinations should generally be made only after a full and plenary hearing and inquiry (S.L. v. J.R., 27 N.Y.3d 558, 563, 36 N.Y.S.3d 411.) While the general right to a hearing in parental access cases is not absolute, where facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a hearing is required. Here, the record showed that there were disputed factual issues regarding the finding of the children’s best interests such that a hearing on parental access was required.

Recent Decisions and Legislation - April 21, 2021

Recent Legislation

Laws of 2021, Ch 56

Laws of 2021, Ch 56, Part L § 4 to § 14 amended the Family Court Act as follows.

     § 4.  Family Court Act Section 353.7 was added

     § 5.  Family Court Act Section 355.5 was amended by adding a new

    subdivision 10.

    § 6. Family Court Act Section 756-a was amended by adding a new subdivision (h).

    § 7. Family Court Act section 756-b was added 

    § 8. Family Court Act section 1017, subdivision 5 opening paragraph was designated paragraph (a) and a new paragraph (b) was added.

    § 9. Family Court Act section 1055 subdivision (j), opening paragraph was designated paragraph (i) and a new paragraph (ii) was added.

    § 10.  Family Court Act section 1055-c was added.

    § 11. Family Court Act section 1089, subdivision (c), paragraph 5, subparagraph (ix), Clause (C) was amended, and a new paragraph 6 was added.

    § 12. Family Court Act section 1089, subdivision (d), subparagraph (vii), paragraph 2, clause (H), opening paragraph was designated item (I) and a new item (II) was added.

    § 13. Family Court Act section 1091-a was added.

    § 14. Family Court Act section 1097 was added.

    § 17. This act is effective September 29, 2021 subject to certain conditions.

Appellate Division, Second Department

Children do not have right to participate in litigation of financial matters of their parents’ divorce relating to maintenance and/or equitable distribution.  Participation of Children’s attorneys limited to matters in which children are the “subject of the proceeding”

In Mahadeo v Mahadeo, --- N.Y.S.3d ----, 2021 WL 1396138 (Mem), 2021 N.Y. Slip Op. 02286 the parties were married on July 23, 2003, and had three children. Before their marriage, they entered into a prenuptial agreement which provided, inter alia, that, in the event of termination of the marriage, each party waived the right to maintenance, equitable distribution, and attorney’s fees. Supreme Court denied the plaintiff’s motion to set aside the prenuptial agreement. Thereafter, the attorney for the children (AFC) moved to vacate which denied the plaintiff’s motion contending that case law issued subsequent to the hearing on the validity of the prenuptial agreement held that he should have been permitted to participate in the hearing to represent the interests of the children. Supreme Court granted the AFC’s motion, and directed a new hearing. The Appellate Division reversed. It held that contrary to  Matter of Barbara T. v. Acquinetta M., 164 A.D.3d 1, 82 N.Y.S.3d 416, which pertained to the impact of an adoption subsidy upon an award of child support, the children here did not have standing to move to vacate the order that denied plaintiff’s motion to set aside the prenuptial agreement. “Although children have certain rights with respect to issues of child support, custody, and visitation in matrimonial actions, children do not have a right to participate in the litigation of financial matters of their parents’ divorce relating to maintenance and/or equitable distribution.” While children’s attorneys are expected to participate fully in proceedings in which they are appointed their participation is limited to matters in which the children are the “subject of the proceeding” (Family Court Act § 249; see Judiciary Law § 35[7]). Given that children are not bound by agreements entered into by their parents they are not the “subject” of proceedings to determine the validity of their parents’ prenuptial agreement related to maintenance and equitable distribution (Family Court Act § 249).

 

Where plaintiff demonstrated she presently had no assets and was reliant on public assistance Court should have held hearing on her motion to set aside prenup on ground it was against public policy.

In Mahadeo v Mahadeo, --- N.Y.S.3d ----, 2021 WL 1396147 (Mem), 2021 N.Y. Slip Op. 02285 the parties were married on July 23, 2003, and had three children. The day before their marriage, the parties entered into a prenuptial agreement which provided, inter alia, that, in the event of termination of the marriage, each party waived the right to maintenance, equitable distribution, and attorney’s fees. At the time of the agreement, the plaintiff was employed in the field of technology and compliance, earning approximately $75,000 to $80,000 a year, and the defendant, a physician, operated a private practice, earning approximately $900,000 a year. The defendant also owned two properties in Queens. In 2008, the plaintiff ceased working outside of the home and became a full-time homemaker. In January 2015, the plaintiff commenced the action for a divorce. She moved, inter alia, to set aside the prenuptial agreement. In her affidavit submitted in support of the motion, the plaintiff averred, among other things, that she had no assets and had been required to seek public assistance. She annexed exhibits to her motion demonstrating that she was then reliant on public assistance. In an order dated August 4, 2018, made after a hearing, the Supreme Court, inter alia, denied plaintiff’s motion which was to set aside the parties’ prenuptial agreement, finding that she failed to sustain her burden of proof that the agreement was the product of duress, fraud, overreaching, or unconscionability. The Appellate Division reversed and remitted for a hearing and determination on the issue of whether the prenuptial agreement was unconscionable at the time this action was before the court. It observed that an agreement that might not have been unconscionable when entered into may become unconscionable at the time a final judgment would be entered. The plaintiff submitted evidence with her motion papers in support of her argument that the prenuptial agreement should be set aside as a matter of public policy since, at the time of her motion, she was unemployed, had become reliant on public assistance for herself and her children, and had no financial resources Supreme Court failed to address the plaintiff’s contention that the enforcement of the agreement would result in the risk of her becoming a public charge.

Where wife moved for interim counsel fees and motion was granted in part, her attorneys did not have standing to appeal from the order where they did not ask for any relief 

In Youngwall v Youngwalll, 2021 WL 1395688 (2d Dept.,2021) an action for a divorce the defendant moved, inter alia, for an award of interim counsel fees in the sum of $350,000. The Supreme Court granted the motion only to the extent of awarding her $35,000, payable to the nonparty Advocate, LLP. Advocate, LLP, appealed, asserting that because the defendant was the nonmonied spouse, she was entitled to an award of $350,000. The appeal was dismissed, with costs to the plaintiff payable by the nonparty-appellant (see CPLR 5511). The Appellate Division held that “a person is aggrieved within the meaning of CPLR 5511 when he or she asks for relief but that relief is denied in whole or in part, or when someone asks for relief against him or her, which the person opposed, and the relief is granted in whole or in part. Here, while the interim counsel fees awarded to the defendant on her motion were made payable to Advocate, LLC, it did not seek any relief in the Supreme Court that was denied in whole or in part. Accordingly, Advocate, LLC, was not aggrieved by the order, and the appeal had to be dismissed.

Laws of 2021, Ch 97

Laws of 2021, Ch 97 amended Family Court Act §§ 712, 732, 773 and 1012, effective April 8, 2021 by deleting the word "incorrigible". 

The Legislative Memorandum in support of the legislation states that the use of the word "incorrigible" in the context of family or children's courts dates back to the first juvenile court in Chicago in the late 1800s. It was adopted in New York when the first children's courts were established in the early 20th century and has carried over in each iteration of our juvenile or family court system since that time. Primarily applied to girls, and disproportionately to girls of color, this term - in practice - tends to single out girls of color for behaviors that do not match stereotypical feminine behavior. "Incorrigible" is defined as a person who is "incapable of being corrected, not reformable" (Merriam-Webster) and, thus this term is completely out of line with the current understanding of the goals of our Family Court system. The use of "incorrigibility" as a basis for Family Court intervention disparately impacts and harms girls and young women of color.  Eliminating this term from the Family Court Act is intended to send a positive message and assist in the efforts to achieve full equality and empowerment for girls, young women, and people of color.

Determination to calculate income by applying reasonable rate of return to  entire tort settlement award not an improvident exercise of discretion

In Matter of Gerghty v Muniz, --- N.Y.S.3d ----, 2021 WL 1287197 (Mem), 2021 N.Y. Slip Op. 02155(2d Dept.,2021) the parties had two children, both of whom resided with the father. The parties stipulated to an order of support requiring the mother to pay child support of $5 per month, due to the mother’s inability to work after a motor vehicle accident. After the mother received a personal injury settlement award from her accident, the father filed a petition seeking an upward modification of the mother’s child support obligation. The Support Magistrate directed the mother to pay child support of $464 per month. The Appellate Division observed that a lump-sum payment received by a parent in a tort action is not excluded from consideration in determining child support. The Support Magistrate’s determination to calculate her income by applying a reasonable rate of return to the entire settlement award was not an improvident exercise of discretion. The mother did not present any evidence to demonstrate what, if any, portion of the award was for future medical expenses. Further, while she spent a portion of the award, parents have a duty to use available financial resources to support their children and cannot insulate such resources from consideration for child support by transforming them into non-income producing assets.  Nevertheless, as the child support obligation directed by the Family Court reduced the mother’s income below the self-support reserve then applicable the court was required to reduce the obligation to the greater of $50 or the difference between the mother’s income and the self-support reserve (see Family Ct Act § 413[1][d]), which was $5,419, or $452 per month.

Not a Denial of due process to interview child in camera at dispositional stage abuse proceeding 

      In Matter of Bryce EW, --- N.Y.S.3d ----, 2021 WL 1287131 (Mem), 2021 N.Y. Slip Op. 02167 (2d Dept.,2021) the Administration for Children’s Service) commenced a proceeding against the mother and the father alleging that they had abused the child by inflicting excessive corporal punishment on him. The child was temporarily placed in the custody of a paternal great aunt. The mother, as well as ACS and the child’s attorney, subsequently consented to the entry of an order of fact-finding without admission pursuant to Family Court Act § 1051(a). After a dispositional hearing, the Family Court determined, inter alia, that it was in the best interests of the child to continue his placement with the paternal great aunt until the completion of the next permanency hearing. The Appellate Division held that the Family Court did not deprive the mother of her right to due process at the dispositional stage of the proceeding by interviewing the child in camera outside of the presence of either the mother or her counsel. At the dispositional hearing, where the court’s sole focus is the best interests of the child, the court has ample inherent discretionary power to conduct the proceedings so as to avoid placing an unjustifiable emotional burden on the child while allowing the child to speak freely and candidly (Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 272, 299 N.Y.S.2d 842, 247 N.E.2d 659). Here, the court providently exercised its discretion in conducting an in camera interview with the child outside of the presence of either the mother or her counsel, after allowing the mother’s counsel to submit to the court proposed questions for the interview.

Appellate Division, First Department

When person designated in conditional judicial surrender declines to adopt the child, the surrender must be revoked upon the birth parent’s application

In Matter of L.S., --- N.Y.S.3d ----, 2021 WL 1218409, 2021 N.Y. Slip Op. 02085 (1st Dept.,2021) the Appellate Division held that when the person designated in a conditional judicial surrender pursuant to Social Services Law §383–c as the adopting parent declines to adopt the child, the surrender must be revoked upon the birth parent’s application. The Family Court was unwilling to vacate the surrender given the undisputed toll on the child’s well-being as a result of spending virtually her entire life in foster care. Instead, the court held a best interests hearing and determined that the mother’s parental rights remain terminated, and converted her conditional judicial surrender to an unconditional one, which permitted the child to remain free for adoption. The Appellate Division reversed because the designated person to adopt is a fundamental condition precedent to a surrender such that the person’s declination mandates its revocation upon the birth parent’s prompt application. 

  The Appellate Division observed that the legislature enacted section 383–c of the Social Services Law in 1990 to provide for new procedures for the surrender of a foster child to an authorized agency so as to free the child for adoption. The law lacked the dispositional alternatives for the conditional judicial surrender in the event of a substantial failure of a material condition prior to finalization of the adoption. That oversight was corrected by Matter of Christopher F., 260 A.D.2d 97, 701 N.Y.S.2d 171 (3d Dept. 1999) where the Appellate Division, Third Department held that the child’s adoption by the couple was a condition precedent of the surrender instrument, upon which its failure permitted the petitioner, upon her prompt application, to revoke it. The Christopher F. court found that the Family Court misconstrued Social Services Law § 383–c, reasoning that to assume that the legislature did not intend for the biological parent to have any recourse against the substantial failure of a material condition of the conditional surrender was not logical in view of the fact that the statute allowed the biological parents to surrender their child on the condition that the child be adopted by a particular person and gave the biological parents the right to notice when that condition failed. In Matter of Bentley XX (Eric XX.), 121 A.D.3d 209, 989 N.Y.S.2d 544 (3rd Dept. 2014), the Appellate Division, Third Department, held that the Family Court should have granted the father’s motion to revoke his surrender because there had been a substantial failure of a material condition, namely, that the couple, together, adopt the child. The Third Department noted that revocation continued to be a permissible disposition in a situation where the designated adoptive individual declines to adopt the child because the legislature did not disapprove of it, particularly in view of the fact that the legislature had the benefit of the holding in Matter of Christopher F. when it amended section 383–c[6][c]. The order of the Family Court was reversed, on the law, the petition denied and dismissed, and the mother’s application granted and the matter remanded for an expeditious continued hearing on the agency’s petition to terminate the mother’s parental rights.

 

Appellate Division, Second Department

Failure to make best interest determination and failure to articulate factors considered in awarding custody to plaintiff other than the defendant’s failure to pay his share of the fees for the attorney for the children warrants reversal.

In Indictor v Indictor, --- N.Y.S.3d ----, 2021 WL 1202797, 2021 N.Y. Slip Op. 01968 (2d Dept.,2021) in 2012, the parties commenced actions for a divorce. In a temporary order of custody and visitation dated April 17, 2015, the Supreme Court, inter alia, awarded the plaintiff sole legal and physical custody of the children. In an order dated February 7, 2018, the Supreme Court appointed an attorney for the children, to be paid for equally by the parties. At a proceeding on March 26, 2018, the court indicated that it had received notification from the appointed attorney for the children that he had not been paid by either party, and was asking to be relieved. The court warned the defendant that if he did not pay the attorney for the children, the temporary order of custody and visitation would be “made final.” The court added that it could not conduct an in camera interview of the children without an attorney for the children. At a proceeding on April 27, 2018, the Supreme Court noted that the defendant still had not paid his share of the fees for the attorney for the children, and directed the plaintiff to provide the court with a proposed final order of custody. In an order dated June 1, 2018, the court, sua sponte, awarded sole legal and physical custody of the children to the plaintiff. The Appellate Division reversed and remitted for a hearing. It held that a court opting to forgo a plenary hearing must take care to clearly articulate which factors were, or were not, material to its determination, and the evidence supporting its decision. Supreme Court failed to inquire into whether an award of sole legal and physical custody to the plaintiff was in the best interests of the children and  failed to articulate what factors it considered in awarding custody to the plaintiff other than the defendant’s failure to pay his share of the fees for the attorney for the children. The plaintiff also failed to pay her share of the fees for the attorney for the children. It found the court erred in awarding the plaintiff sole legal and physical custody of the two minor children without conducting a hearing.

Where record is sufficient omission of recital that contemptuous conduct was calculated to, or actually did, defeat, impair, impede or prejudice rights or remedies may be corrected on appeal

  In Matter of Martucci v Nerone, --- N.Y.S.3d ----, 2021 WL 1202639, 2021 N.Y. Slip Op. 01977(2d Dept.,2021) Family Court adjudicated the father in willful contempt of the support order. The Appellate Division agreed with the father that the order adjudging him to be in contempt of court [was] required to recite that the contemptuous conduct was calculated to, or actually did, defeat, impair, impede or prejudice the [mother’s] rights or remedies. However, because the finding of contempt was supported by the record, the omission of this recital was a mere irregularity which may be corrected on appeal and it modified the order of disposition to include the requisite recital.

Revised Forms for Use in Matrimonial Actions

Revised Forms for Use in Matrimonial Actions in Supreme Court were adopted effective March 1, 2021. The revised forms reflect the increases as of March 1, 2021 in the Self Support Reserve from $17,226 to $17,388 and in the federal Poverty Level Income for a single person from $12,760 to $12,880.

The Forms and Calculators for both Contested and Uncontested Divorces revised March 1, 2021 reflecting these changes are posted at http://ww2.nycourts.gov/divorce/MaintenanceChildSupportTools.shtml

The revised forms are as follows:

Form UD-8(2) Maintenance Guidelines Worksheet

Form UD-8(3) Child Support Worksheet

Temporary Maintenance Worksheet (for divorces started on or after 10/25/15)

Post-Divorce Maintenance/Child Support Worksheet

 The Uncontested Divorce Forms revised March 1, 2021 reflecting these changes are also posted at http://ww2.nycourts.gov/divorce/divorce_withchildrenunder21.shtml

The revised forms are as follows:

Composite Uncontested Divorce Forms

DRL ' 243 motion for Sequestration denied where plaintiff failed to make showing of necessity, such as consistent pattern of arrears or willful violation of a court order.

In Goldin v Levy,     N.Y.S.3d     , 2021 WL 921683, 2021 N.Y. Slip Op. 01481 (1st Dept.,2021) the Appellate Division held, inter alia, that the order that directed a hearing to determine arrears, civil contempt, and attorneys fees was not appealable, because it did not affect a substantial right (see CPLR 5701[a][2][v]; Zaharatos v. Zaharatos, 134 A.D.3d 926, 22 N.Y.S.3d 480 [2d Dept. 2015]; Kornblum v. Kornblum, 34 A.D.3d 749, 751, 828 N.Y.S.2d 402 [2d Dept. 2006]). Any party aggrieved by an order entered subsequent to the hearing may appeal from that order. The Appellate Division held that the motion court properly denied the plaintiffs motion seeking sequestration of defendants share of retirement accounts pursuant to Domestic Relations Law ' 243. Although plaintiff established some arrears, she failed to make a showing of necessity, such as a consistent pattern of arrears or a willful violation of a court order directing payment of arrears.

Appellate Division, Second Department

Sanction of drawing an adverse inference against the plaintiff, regarding all custody issues for failure to appear for updated forensic evaluation, an improvident exercise of discretion 

In Treanor v Treanor,     N.Y.S.3d     , 2021 WL 1010572 (Mem), 2021 N.Y. Slip Op. 08276 (2d Dept.,2021) several months after the commencement of this action for a divorce, the Supreme Court appointed a neutral forensic evaluator, who completed a forensic evaluation of the parties and their three children. In an order dated June 7, 2019, the court reappointed the forensic evaluator in order to conduct an update to the original forensic evaluation. Plaintiff violated the directives to participate in the updated forensic evaluation Upon the defendant=s motion for an order of preclusion, the Supreme Court found that the plaintiff intentionally violated its directives to participate in the updated forensic evaluation, and imposed the sanction of drawing an adverse inference against the plaintiff with respect to custody issues at the time of trial. The Appellate Division found that Supreme Court properly determined that the plaintiff intentionally violated its directives to participate in the updated forensic evaluation but under the circumstances of this case, the court improvidently exercised its discretion in imposing the sanction of drawing an adverse inference against the plaintiff regarding all custody issues at the time of trial on the ground that she failed to participate in the updated forensic evaluation rather than limiting the adverse inference to the circumstances of the forensic evaluation.

Improper to award parental access with the child only as often as both the child and the parent agree.

In Matter of Clezidor v Lexune,     N.Y.S.3d     , 2021 WL 900925, 2021 N.Y. Slip Op. 01409 (2d Dept.,2021) the Appellate Division reversed an order of the Family Court which, inter alia, awarded the mother parental access with the child only as often as both [the child] and [the mother] agree. It held that a court may not delegate its authority to determine parental access to either a parent or a child. Here, the order appealed from directed that the mother was only entitled to parental access with the child as often as she and the child agree. That provision effectively conditioned the mothers parental access on the childs wishes and leaves the determination as to whether there should be any parental access at all to the child.

Appellate Division, Fourth Department

A Contempt application which does not strictly comply with Judiciary Law ' 756 is jurisdictionally defective.

In Rennert v Rennert,     N.Y.S.3d     , 2021 WL 1049727, 2021 N.Y. Slip Op. 01630 (4th Dept.,2021) the plaintiffs contempt applications omitted the language warning defendant that his failure to appear in court may result in [his] immediate ... imprisonment for contempt of court.  Because plaintiffs contempt applications failed to include the required warning language, they did not strictly comply with Judiciary Law ' 756, and were jurisdictionally defective.

 Supreme Court

 While the spousal support statute in the Family Court Act mirrors the temporary maintenance statute in the Domestic Relations Law in many respects, there is a significant difference in the two statutes with respect to duration.

In JJ, v. TW, 2021 WL 1047105 (Table), 2021 N.Y. Slip Op. 50219(U) Sup Ct (2021) an action for a divorce Plaintiff moved to terminate spousal support payments awarded by family court on the ground that, as of the date of his application, he had tendered 13 consecutive monthly payments, more than double the amount of the calculated durational period@ set forth by the post divorce maintenance advisory durational guidelines. The support order Plaintiff challenged was issued in Family Court pursuant to Family Court Act ' 412. The Court observed that while the spousal support statute in the Family Court Act mirrors the temporary maintenance statute in the Domestic Relations Law in many respects, there is a significant difference in the two statutes with respect to duration. DRL ' 236[B][5 a] [f] expressly states Athe court shall determine the duration of temporary maintenance by considering the length of the marriage. DRL ' 236[B][5 a] [g] further provides that temporary maintenance shall terminate no later than the issuance of the judgment of divorce or the death of either party, whichever occurs first. The Family Court Act, on the other hand, does not relate the duration of spousal support to the length of the marriage. Rather, the Family Court Act provides that unless modified upon a showing of a substantial change in circumstances, any order of spousal support issued pursuant to Family Court Act ' 412. shall continue until the earliest of one of the following: a written or oral stipulation or agreement between the parties; the issuance of a judgment of divorce or other order in a matrimonial proceeding; or the death of either party (see FCA ' 412[10]). Here, Plaintiff failed to show a substantial change in circumstances warranting termination or modification of the spousal support order.

Construing the emancipation clause in the parties agreement Supreme Court finds that child was emancipated by his enrollment in the United States Naval Academy

In Denatale v. Denatale, 2021 WL 1096899 (Table), 2021 N.Y. Slip Op. 50247(U) (Sup Ct.,2021) the parties Stipulation of Settlement dated December 29, 2017 which was incorporated but did not merge into their Judgment of Divorce provided that the child support obligation would continue through the age of 22 even if the Children had completed college. The Stipulation provided, in part as follows at Article E: “The Husbands obligation to pay child support shall continue until the child attains the age of twenty two (22) regardless of whether a child is still in college or has completed college. Thus, by way of example, should Campbell graduate college at the age of 21, child support for her shall continue through age 22.” … Emancipation shall also include: Marriage (even though such a marriage may be void or voidable and despite any annulment of it); Permanent residence away from the residence of the Mother and the Father. A residence at boarding school, camp, or college is not to be deemed a residence away from the residence of the mother and, hence, such a residence at boarding school, camp, or college is not an Emancipation Event; Death of the child (God forbid); Entry into the armed forces of the United States (provided that the Emancipation Event shall be deemed terminated and nullified upon discharge from such forces, and, thereafter, the period shall be the applicable period as if such an Emancipation Event by reason of the entry had not occurred); Engaging in full time employment upon and after the attaining by a child of 18 years of age....””Supreme Court held that the child was emancipated by his enrollment in the United States Naval Academy. The court cited as authority Beekman Ellner v. Ellner, 296 AD2d 404 (2d Dept. 2002), where  the Appellate Division affirmed an order of the Family Court which terminated child support [s]ince the parties child enrolled in full time training duty at the U.S. Naval Academy at Annapolis and his life at Annapolis was largely controlled by the government, which also provided for the bulk of his material needs, he was clearly engaged in active military service to render him emancipated (citing 10 USC Sec 101[d][1]). Similarly, in Zuckerman v. Zuckerman, 154 AD2d 666 (2d Dept. 1989), the Appellate Division held that the parties son became emancipated when he entered West Point. There, the Appellate Division found that pursuant to 10 USC Sec 3075[b][2]1, upon entering West Point, the minor child is considered a member of the regular army and subject to extensive governmental control, which is inconsistent with a parent=s control and support of a child. The child attends West Point tuition free and is provided with room, board, health care, and monthly pay of $504.30, plus other allowances. Thus, he is self supporting and financially independent of his parents.  Although the Stipulation here was clear that attendance at a college was not an emancipation event, it was also clear that enlistment in the military was one. The motion to terminate child support was granted as the parties son, was deemed emancipated.

 

Recent Decisions and Legislation - March 16, 2021

 Appellate Division, Second Department

Where husband who placed spyware on wife’s computer invoked Fifth Amendment, and intentionally destroyed evidence as to what the spyware actually intercepted, appropriate sanction was to strike the causes of action in the complaint relating to the financial issues other than child support

In C. C. v. A. R., --- N.Y.S.3d ----, 2021 WL 800051, 2021 N.Y. Slip Op. 01243 (2d Dept.,2021) the plaintiff installed spyware on the wife’s phone, invoked Fifth Amendment protections on the issue, and intentionally destroyed evidence as to what the spyware actually intercepted. The Appellate Division held that Supreme Court properly determined, under the circumstances here, that it was proper to infer that the plaintiff violated the defendant’s attorney-client privilege, and that the appropriate sanction was to strike the causes of action in the complaint relating to the financial issues of the case other than child support. It noted that a party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense’. Where the evidence is determined to have been intentionally or wilfully destroyed, the relevancy of the destroyed documents is presumed” (Pegasus Aviation I., Inc. v. Varig Logistica S.A., 26 N.Y.3d at 547, 26 N.Y.S.3d 218, 46 N.E.3d 601). Here, the Supreme Court properly drew the presumption of relevance in connection with the interception by the plaintiff of privileged communications between the defendant and her attorney in view of the plaintiff’s invocation of his Fifth Amendment privilege against self-incrimination when questioned about it at his deposition, his intentional destruction of electronic records, and the evidence that he had utilized spyware to record the defendant’s conversations when she was in the vicinity of her attorney’s office. Although this presumption is rebuttable, the plaintiff did not provide any evidence to rebut it. Further, while the striking of pleadings is a drastic remedy, the court did not improvidently exercise its discretion in striking the causes of action in the plaintiff’s complaint seeking financial relief other than child support. Under the common-law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence. These sanctions can include “precluding proof favorable to the spoliator to restore balance to the litigation, requiring the spoliator to pay costs to the injured party associated with the development of replacement evidence, or employing an adverse inference instruction at the trial of the action. Where appropriate, a court can impose the ultimate sanction of dismissing the action or striking responsive pleadings, thereby rendering a judgment by default against the offending party” (Ortega v. City of New York, 9 N.Y.3d 69, 76, 845 N.Y.S.2d 773, 876 N.E.2d 1189).

 

Any monies spent from companies which are defendants separate property would not be considered marital property and could not be wastefully dissipated by the defendant.

In Rosen v Rosen, --- N.Y.S.3d ----, 2021 WL 799852, 2021 N.Y. Slip Op. 01278 (2d Dept.,2021) the parties were married on May 5, 1985. Prior to the marriage, in 1981, the defendant incorporated Airline Software, Inc. Airline was in operation through 2004, and then the name of the company was changed to Airframe Systems, Inc. The defendant incorporated various companies thereafter. The primary operating company from 2004 through 2011 was Aviation Software, Inc. In 2006, the defendant incorporated ASI Scanning, Inc., which eventually took over Aviation’s operations. 

The parties entered into a prenuptial agreement in which they agreed that the defendant’s separate property included shares of stock in Airline and GSRAI. The prenuptial agreement provided that the plaintiff waived all rights to the defendant’s separate property, as well as to any property that the defendant may in the future purchase or exchange with the proceeds of his separate property. The plaintiff also waived her right to any increase in value of the defendant’s separate property in which the defendant presently had an interest or in which he may have an interest acquired as a result of a sale or exchange of his separate property. 

The parties separated in 2009, and the plaintiff commenced this action for a divorce in March 2012. Supreme Court, inter alia, awarded the plaintiff a distributive award in the sum of $363,644.74, representing 30% of the value of the defendant’s interest in ASI and a net credit in the sum of $200,807.74 for the parties’ wasteful dissipation of marital funds. 

The Appellate Division held the Supreme Court erred in determining that ASI was marital property and in awarding the plaintiff a percentage thereof. It was undisputed that the defendant’s interest in Airline, which was later renamed Airframe, constituted separate property. Since Airline exchanged its operations with Aviation, and Aviation exchanged its operations with ASI, the plaintiff waived all rights to the value of the defendant’s interest in ASI. 

The Appellate Division held that a party alleging that his or her spouse has engaged in wasteful dissipation of marital assets bears the burden of proving such waste by a preponderance of the evidence (Marino v. Marino, 183 A.D.3d 813, 820, 123 N.Y.S.3d 638). ASI and Aviation constituted the defendant’s separate property. Therefore, any monies spent from those companies would not be considered marital property and could not be dissipated by the defendant. The Supreme Court found that the vast majority of the funds that the defendant allegedly wastefully dissipated were generated from ASI. The defendant conceded that he wastefully dissipated $7,525 in marital funds. Thus, the plaintiff was entitled to a credit of only $7,525 for the defendant’s uncontested wasteful dissipation of marital assets.

  The plaintiff did not dispute the Supreme Court’s finding that she wastefully dissipated the proceeds from the sale of the marital home and, thus, there was no ground to disturb the court’s finding that the defendant is entitled to an award of the sum of $82,726.49, which represents 50% of the sum of $165,452.97 that the plaintiff received from those proceeds, less expenses. Accordingly, the defendant was entitled to a net distributive award in the sum of $75,201.49.

  The Appellate Division affirmed the awards to the plaintiff of maintenance of $4,000 per month for a period of three years, $211,300 in maintenance arrears, and attorneys’ fees of $30,000.

Error to decide motion to enjoin relocation request without considering the factors set forth in Matter of Tropea 

In Conroy v Vaysman, --- N.Y.S.3d ----, 2021 WL 710591, 2021 N.Y. Slip Op. 08182 (2d Dept.,2021) the Appellate Division held that Family Court erred in deciding the mothers motion to enjoin the father’s relocation with the child to New Jersey without considering the factors set forth in Matter of Tropea. It observed that each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child. The factors to be considered by the court in its analysis are listed in Matter of Tropea v. Tropea, 87 N.Y.2d 727, 739, 642 N.Y.S.2d 575.

Appellate Division, Third Department

Proceeding that sought to terminate the rights of one parent in the face of an existent permanency plan that sought to reunite the child with the other parent, were contradictory and could not be reconciled. Therefore, the petition should have been dismissed.

In Matter of Xavier XX, --- N.Y.S.3d ----, 2021 WL 816376, 2021 N.Y. Slip Op. 0129 (3d Dept.,2021) Respondent was the father of the child (born in 2016). In September 2017, the child’s mother consented to the temporary removal of the child from her custody, and the child was placed in the care and custody of petitioner. Thereafter, petitioner commenced a neglect proceeding against the mother and the child was adjudicated a neglected child and the mother was placed under an order of supervision for one year. At a permanency hearing in November 2018, custody of the child was continued with petitioner. The goal of the permanency plan resulting from the hearing was to return the child to the mother.  In February 2019, petitioner commenced a proceeding pursuant to Social Services Law § 384–b, seeking to adjudicate the child to be abandoned by respondent and to terminate his parental rights. After a hearing, Family Court determined that respondent abandoned the child. As such, it thereafter terminated respondent’s parental rights. The Appellate Division reversed. It held that the proceeding was improperly brought as the permanency plan in place at the time of the hearing with respect to the mother was to return the child to the mother. The statutory purpose of an abandonment proceeding is to free the child for adoption by terminating the parents’ rights to the child. Because this proceeding sought to terminate the rights of one parent in the face of an existent permanency plan that sought to reunite the child with the other parent, it did not serve that purpose. The end goals of these two concurrent proceedings were contradictory and could not be reconciled. Therefore, the petition should have been dismissed.