Antithetical to Grant Standing Due to Existence of No Contact Order.
In Matter of Thomas X, --- N.Y.S.2d ----, 2011 WL 2640258 (N.Y.A.D. 3 Dept.) the Appellate Division affirmed an order which dismissed Wayne RR.'s applications, in two proceedings for custody of the children. When the Broome County Department of Social Services alleged that respondent Megan X. (mother) had violated the terms of Family Court's order directing her to ensure that her children (born in 1997, 2002 and 2003) have no contact with her boyfriend, Wayne RR. (petitioner), who is a known sex offender, she surrendered her parental rights. The mother had previously admitted to allegations of neglect after allowing unsupervised and inappropriate contact between petitioner and the children. Thereupon, petitioner commenced two proceedings seeking custody of the children. Finding that petitioner lacked standing, Family Court dismissed his petitions without a hearing. Family Court also granted a one-year order of protection in favor of the children against petitioner and denied his subsequent motion to vacate that order. The Appellate Division held that inasmuch as petitioner has no biological relationship to the children, his standing to seek custody was determined under the common-law standard requiring the establishment of extraordinary factual circumstances (see Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 548 [1976]). While the mother's surrender, the absence of the biological fathers from the children's lives and the lack of any other suitable relative may normally be considered as extraordinary circumstances the Appellate Division agreed with Family Court that it would be antithetical here to grant standing in spite of the existence of the no contact order. The mother admitted neglect based, in part, on allowing petitioner, who had a history of exposing himself to children, to have unsupervised contact with the children, to sleep in the same bed with the male middle child and to shower and urinate in the toilet together with the oldest male child. Given the lack of any real factual dispute regarding petitioner's role in the circumstances leading to the mother's admission of neglect and the issuance of an order directing her to ensure that he have no contact with the children, it would not disturb Family
Court's conclusion that he lacked standing to seek custody.
Motion to Dismiss Pursuant to Cplr 3211 May Be Directed Only Against a Cause of Action or a Defense, Not a Motion
In Matter of Burnham v Brenna, --- N.Y.S.2d ----, 2011 WL 2624043 (N.Y.A.D. 2 Dept.), the father moved to dismiss the mother's motion pursuant to CPLR 2221 to renew her prior motion and for an award of an attorney's fee. The Appellate Division held that Family Court properly denied the father's motion, because a motion to dismiss pursuant to CPLR 3211 may be directed only against a cause of action or a defense, not a motion (see CPLR 3211[a], [b] ). The proper response to the mother's motion would have been to submit opposition papers (see CPLR 2214[b] ).
It Is Error as a Matter of Law to Make an Order Respecting Custody, Even in a Pendente Lite Context, Based on Controverted Allegations Without a Full Hearing
In Matter of Swinson v Brewington, 84 A.D.3d 1251, 925 N.Y.S.2d 96 (2d Dept, 2011) petitioner father and the respondent mother were in a relationship from 2001 to 2004, but were never married. Their son David was born on May 10, 2002. From the time of his birth, David lived with his mother in Brooklyn while his father visited him at least four times a month. There was no court order concerning David's custody. In the Spring of 2006 the father moved to Tennessee. Beginning in 2007, David spent the summer with his father in Tennessee, and remained during the school year in Brooklyn with his mother. The father also traveled to Brooklyn to visit David during the Christmas holiday season in 2006, 2007, and 2008. At the end of the summer in August 2009, the father enrolled David in school in Tennessee, rather than return David to his mother in Brooklyn. He also filed a petition for custody. Shortly thereafter, the mother filed a cross petition for custody. When the parties initially appeared before the Family Court on September 8, 2009, the Family Court decided that David should remain in Tennessee so as not to disturb the status quo until the court received more information, since David had started school on August 10, 2009. Toward that end, the Family Court referred the matter to a judicial hearing officer for an evidentiary hearing. On October 26, 2009, the parties appeared before the Judicial Hearing Officer, at which time no testimony was taken or exhibits received, although the father indicated he was prepared to go forward. There was only oral argument on the issue of temporary custody. In support of his petition, the father annexed David's file from PS 329, David's former school in Brooklyn, which included his school records and his teachers' notes regarding various behavior issues and interactions with the mother. PS 329's file showed that for the 2008/2009 school year, David had excessive absences, was frequently tardy, and performed poorly. It also documented that from April to June 2009, David used profanity toward his teacher and classmates on numerous occasions, pushed his classmates, and punched himself. The teachers' notes also indicated that the mother was asked to leave the school grounds one morning when she began harassing another child about bothering David, and failed to attend an appointment with school personnel to discuss David's behavior. During this appearance, the attorney for the child stated, without submitting any evidence in support of her comments, that David was a special needs child and, as such, would not receive the services as provided for by PS 329 pursuant to his Individual Education Plan at his school in Tennessee. She acknowledged that David did not want to choose between his parents because he loved both of them, but it was her position that the mother should be issued a temporary order of custody. The father objected to the attorney for the child making a "report" and providing her own recommendation to the Judicial Hearing Officer. He disputed the statements made by the attorney for the child with respect to the sufficiency of David's school in Tennessee and sought to enter David's Tennessee school records into evidence. However, the Judicial Hearing Officer refused to admit the records or proceed with a hearing. In an order dated October 26, 2009, the Judicial Hearing Officer awarded temporary custody of David to the mother. The Appellate Divison pointed out that as a general rule, while temporary custody may be properly fixed without a hearing where sufficient facts are shown by uncontroverted affidavits, it is error as a matter of law to make an order respecting custody, even in a pendente lite context, based on controverted allegations without having had the benefit of a full hearing. The Judicial Hearing Officer erred in relying on the report of the attorney for the child and refusing to take testimony and receive documentary evidence offered by the father to refute the report. While attorneys for the children, as advocates, may make their positions known to the court orally or in writing, presenting reports containing facts which are not part of the record or making ex parte submissions to the court are inappropriate practices (citing Weiglhofer v. Weiglhofer, 1 A.D.3d 786, 788, 766 N.Y.S.2d 727 n.). Here, the Judicial Hearing Officer erroneously allowed the attorney for the child to refer to matters that were not in evidence, and compounded its error by refusing to allow the father to proffer documentary evidence to contradict the assertions of the attorney for the child.
Sunday, July 17, 2011
Wednesday, July 06, 2011
Important New Decisions - July 6, 2011
Counsel Sanctioned for Obtaining From Court a “So-Ordered Trial Subpoena Before Trial Date Was Set
In Duval v Duval, --- N.Y.S.2d ----, 2011 WL 2574001 (N.Y.A.D. 2 Dept.) the Appellate Division held that Supreme Court improvidently exercised its discretion in denying defendant's motion to impose sanctions upon the plaintiff and her counsel pursuant to 22 NYCRR 130-1.1. Under the circumstances presented, the conduct of the plaintiff and her counsel in obtaining a "so-ordered" subpoena duces tecum and serving it upon Long Island Jewish Medical Center to obtain the defendant's medical records prior to filing a note of issue and before a trial date was set was frivolous within the meaning of 22 NYCRR 130-1.1(c), as it was completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law. Contrary to the defendant's contention, pretrial disclosure on the issue of child custody is permissible with respect to a parent's health, since the parties to a contested custody proceeding place their physical and mental conditions in issue. Here, in her attempt to obtain pretrial disclosure of the defendant's medical records in connection with the issue of child custody, the plaintiff sought a "so-ordered" trial subpoena duces tecum from the Supreme Court, thereby obviating the need to obtain the defendant's written authorization to release the records. The plaintiff also failed to serve the subpoena on the defendant in a timely manner, thus depriving him of the opportunity to request withdrawal of the subpoena or to make a timely motion to quash. Moreover, it can be inferred from the record that the challenged conduct was designed primarily to harass and maliciously injure the defendant. In view of the foregoing, the defendant's motion to impose sanctions upon the plaintiff and her counsel pursuant to 22 NYCRR 130-1.1 should have been granted. It remitted the matter to the Supreme Court for a hearing on the issue of the amount of an appropriate sanction to be imposed upon the plaintiff and her counsel. The Appellate Division also held that Supreme Court improvidently exercised its discretion in denying, with limited exception, defendant's motion to suppress all information relating to the contents of records produced in response to the subpoena duces tecum served upon Long Island Jewish Medical Center and to preclude the plaintiff from using such information. Under the circumstances of this case, suppression and preclusion, along with the imposition of a sanction, were the appropriate remedies for the improper manner in which those records were obtained (see CPLR 3103[c] ). Accordingly, that branch of the defendant's motion which was to suppress all information relating to the contents of records produced in response to the subpoena served upon Long Island Jewish Medical Center and to preclude the plaintiff from using such information should have been granted in its entirety, with a directive that the plaintiff and her counsel deliver all records produced in response to the aforementioned subpoena to the defendant and to affirm that all such records, and any copies thereof, have been so returned and/or
destroyed and were not transmitted to any third party.
Appellate Divison Holds That Emancipation Occurs When Child Becomes Economically Independent Through Employment and Is Self-supporting.
In Smith v Smith, --- N.Y.S.2d ----, 2011 WL 2571089 (N.Y.A.D. 2 Dept.) the Appellate Division affirmed an order which, granted the wife child support and spousal support. It found that the record supported the Support Magistrate's determination that the parties' son was not emancipated. It pointed out that a parent is obligated to support his or her child until the age of 21 unless the child becomes emancipated, which occurs once the child becomes economically independent through employment and is self-supporting. Although the parties' son worked full-time, paid for his own car insurance, and paid for his own cell phone, the fact that his mother still paid for his food, shelter, clothing, and health and dental insurance, demonstrated that he was not economically independent of his parents.
Family Court Lacks Jurisdiction to Consider Objections Unless Proof of Service Filed
In Matter of Girgenti v Cress, --- N.Y.S.2d ----, 2011 WL 2571850 (N.Y.A.D. 2 Dept.), the father appealed from an order of the family court which dismissed his petition to enforce a stipulation of settlement concerning child support arrears. The Appellate Division affirmed the order finding that the issues raised by the father on this appeal are not reviewable, since he failed to file proof of service of a copy of the objections on the mother. Family Court Act 439(e) provides, in pertinent part, that "[a] party filing objections shall serve a copy of such objections upon the opposing party," and that "[p]roof of service upon the opposing party shall be filed with the court at the time of
filing of objections and any rebuttal." By failing to file proof of service of a copy of his objections on the mother, the father failed to fulfill a condition precedent to filing timely written objections to the Support Magistrate's order. Consequently, the Family Court lacked jurisdiction to consider the merits of the objections and the father waived his right to appellate review.
Denial of Objections to Finding of Willfulness and Recommendation of Incarceration Proper since Recommendations Had No Force or Effect until Confirmed
In Matter of Ceballos v Castillo, --- N.Y.S.2d ----, 2011 WL 2572307 (N.Y.A.D. 2 Dept.), the Appellate Divison observed that to establish entitlement to a downward modification of a child support order entered on consent, a party has the burden of showing that there has been a substantial change in circumstances. Loss of employment may at times constitute a substantial change in circumstances. A party seeking a downward modification of his or her child support obligation based upon a loss of employment has the burden of demonstrating that he or she diligently sought to obtain employment commensurate with his or her earning capacity . Here, the father testified that he was unable to pay child support because he had not worked since 2008 and was not eligible to receive unemployment benefits. He stated that he had been working for the Renaissance Hotel until May 2008, but that he left that job after the hotel significantly cut back his hours. He thereafter obtained employment at a pizzeria, where he was initially able to work longer hours. Although he was eventually let go from his position at
the pizzeria, he did not, contrary to the Support Magistrate's finding, quit the pizzeria job. The father further testified in detail that he attempted to obtain employment at various specified restaurants and supermarkets; that he went to an employment agency called Labor Ready to find a job; that he looked for employment in newspapers and the "Pennysaver" publication; and that he explored job leads which he learned of via word-of-mouth. Under these circumstances, the father demonstrated that his loss of employment constituted a substantial change in circumstances, and that he made a good faith effort to obtain new employment which was commensurate with his qualifications and experience. Thus, the Support Magistrate's determination that the father failed to satisfy his burden of establishing an inability to pay his child support
obligation was not supported by the evidence. Accordingly, the father's objections
to the denial of his petition for downward modification of his child support
obligations should have been granted.
The Appellate Division pointed out that to the extent that the father filed objections to the Support Magistrate's finding of willfulness and her recommendation of a term of incarceration of six months, the denial of those objections was proper, since the Support Magistrate's recommendations had no force and effect until confirmed by the Family Court Judge. Upon, in effect, confirming the willfulness finding, the Family Court issued an order of commitment directing that the father be committed to the Westchester County Jail unless he purged his contempt by paying the sum of $1140 to the Support Collection Unit. The father's failure to pay child support constituted
prima facie evidence of a willful violation. This prima facie showing shifted the burden to the father to come forward with competent, credible evidence that his failure to pay support in accordance with the terms of the order on consent was not willful. In the absence of proof of an ability to pay, an order of commitment for willful violation of a support order may not stand. Based upon the evidence in the record, the father met his burden of establishing his inability to meet his child support obligation set forth in the
order dated April 11, 2005. The evidence did not support the Support Magistrate's
finding that the father had the means, resources, and ability to pay child support, but chose not do so.
In Duval v Duval, --- N.Y.S.2d ----, 2011 WL 2574001 (N.Y.A.D. 2 Dept.) the Appellate Division held that Supreme Court improvidently exercised its discretion in denying defendant's motion to impose sanctions upon the plaintiff and her counsel pursuant to 22 NYCRR 130-1.1. Under the circumstances presented, the conduct of the plaintiff and her counsel in obtaining a "so-ordered" subpoena duces tecum and serving it upon Long Island Jewish Medical Center to obtain the defendant's medical records prior to filing a note of issue and before a trial date was set was frivolous within the meaning of 22 NYCRR 130-1.1(c), as it was completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law. Contrary to the defendant's contention, pretrial disclosure on the issue of child custody is permissible with respect to a parent's health, since the parties to a contested custody proceeding place their physical and mental conditions in issue. Here, in her attempt to obtain pretrial disclosure of the defendant's medical records in connection with the issue of child custody, the plaintiff sought a "so-ordered" trial subpoena duces tecum from the Supreme Court, thereby obviating the need to obtain the defendant's written authorization to release the records. The plaintiff also failed to serve the subpoena on the defendant in a timely manner, thus depriving him of the opportunity to request withdrawal of the subpoena or to make a timely motion to quash. Moreover, it can be inferred from the record that the challenged conduct was designed primarily to harass and maliciously injure the defendant. In view of the foregoing, the defendant's motion to impose sanctions upon the plaintiff and her counsel pursuant to 22 NYCRR 130-1.1 should have been granted. It remitted the matter to the Supreme Court for a hearing on the issue of the amount of an appropriate sanction to be imposed upon the plaintiff and her counsel. The Appellate Division also held that Supreme Court improvidently exercised its discretion in denying, with limited exception, defendant's motion to suppress all information relating to the contents of records produced in response to the subpoena duces tecum served upon Long Island Jewish Medical Center and to preclude the plaintiff from using such information. Under the circumstances of this case, suppression and preclusion, along with the imposition of a sanction, were the appropriate remedies for the improper manner in which those records were obtained (see CPLR 3103[c] ). Accordingly, that branch of the defendant's motion which was to suppress all information relating to the contents of records produced in response to the subpoena served upon Long Island Jewish Medical Center and to preclude the plaintiff from using such information should have been granted in its entirety, with a directive that the plaintiff and her counsel deliver all records produced in response to the aforementioned subpoena to the defendant and to affirm that all such records, and any copies thereof, have been so returned and/or
destroyed and were not transmitted to any third party.
Appellate Divison Holds That Emancipation Occurs When Child Becomes Economically Independent Through Employment and Is Self-supporting.
In Smith v Smith, --- N.Y.S.2d ----, 2011 WL 2571089 (N.Y.A.D. 2 Dept.) the Appellate Division affirmed an order which, granted the wife child support and spousal support. It found that the record supported the Support Magistrate's determination that the parties' son was not emancipated. It pointed out that a parent is obligated to support his or her child until the age of 21 unless the child becomes emancipated, which occurs once the child becomes economically independent through employment and is self-supporting. Although the parties' son worked full-time, paid for his own car insurance, and paid for his own cell phone, the fact that his mother still paid for his food, shelter, clothing, and health and dental insurance, demonstrated that he was not economically independent of his parents.
Family Court Lacks Jurisdiction to Consider Objections Unless Proof of Service Filed
In Matter of Girgenti v Cress, --- N.Y.S.2d ----, 2011 WL 2571850 (N.Y.A.D. 2 Dept.), the father appealed from an order of the family court which dismissed his petition to enforce a stipulation of settlement concerning child support arrears. The Appellate Division affirmed the order finding that the issues raised by the father on this appeal are not reviewable, since he failed to file proof of service of a copy of the objections on the mother. Family Court Act 439(e) provides, in pertinent part, that "[a] party filing objections shall serve a copy of such objections upon the opposing party," and that "[p]roof of service upon the opposing party shall be filed with the court at the time of
filing of objections and any rebuttal." By failing to file proof of service of a copy of his objections on the mother, the father failed to fulfill a condition precedent to filing timely written objections to the Support Magistrate's order. Consequently, the Family Court lacked jurisdiction to consider the merits of the objections and the father waived his right to appellate review.
Denial of Objections to Finding of Willfulness and Recommendation of Incarceration Proper since Recommendations Had No Force or Effect until Confirmed
In Matter of Ceballos v Castillo, --- N.Y.S.2d ----, 2011 WL 2572307 (N.Y.A.D. 2 Dept.), the Appellate Divison observed that to establish entitlement to a downward modification of a child support order entered on consent, a party has the burden of showing that there has been a substantial change in circumstances. Loss of employment may at times constitute a substantial change in circumstances. A party seeking a downward modification of his or her child support obligation based upon a loss of employment has the burden of demonstrating that he or she diligently sought to obtain employment commensurate with his or her earning capacity . Here, the father testified that he was unable to pay child support because he had not worked since 2008 and was not eligible to receive unemployment benefits. He stated that he had been working for the Renaissance Hotel until May 2008, but that he left that job after the hotel significantly cut back his hours. He thereafter obtained employment at a pizzeria, where he was initially able to work longer hours. Although he was eventually let go from his position at
the pizzeria, he did not, contrary to the Support Magistrate's finding, quit the pizzeria job. The father further testified in detail that he attempted to obtain employment at various specified restaurants and supermarkets; that he went to an employment agency called Labor Ready to find a job; that he looked for employment in newspapers and the "Pennysaver" publication; and that he explored job leads which he learned of via word-of-mouth. Under these circumstances, the father demonstrated that his loss of employment constituted a substantial change in circumstances, and that he made a good faith effort to obtain new employment which was commensurate with his qualifications and experience. Thus, the Support Magistrate's determination that the father failed to satisfy his burden of establishing an inability to pay his child support
obligation was not supported by the evidence. Accordingly, the father's objections
to the denial of his petition for downward modification of his child support
obligations should have been granted.
The Appellate Division pointed out that to the extent that the father filed objections to the Support Magistrate's finding of willfulness and her recommendation of a term of incarceration of six months, the denial of those objections was proper, since the Support Magistrate's recommendations had no force and effect until confirmed by the Family Court Judge. Upon, in effect, confirming the willfulness finding, the Family Court issued an order of commitment directing that the father be committed to the Westchester County Jail unless he purged his contempt by paying the sum of $1140 to the Support Collection Unit. The father's failure to pay child support constituted
prima facie evidence of a willful violation. This prima facie showing shifted the burden to the father to come forward with competent, credible evidence that his failure to pay support in accordance with the terms of the order on consent was not willful. In the absence of proof of an ability to pay, an order of commitment for willful violation of a support order may not stand. Based upon the evidence in the record, the father met his burden of establishing his inability to meet his child support obligation set forth in the
order dated April 11, 2005. The evidence did not support the Support Magistrate's
finding that the father had the means, resources, and ability to pay child support, but chose not do so.
Monday, June 27, 2011
New York's Marriage Equality Act
The Marriage Equality Act
On June 24, 2011 New York enacted “The Marriage Equality Act’, which amended the domestic relations law to grant same-sex couples the ability to enter into civil marriages in New York. New York, has joined Vermont and New Hampshire in becoming the third state to pass legislation permitting same-sex marriage. The only othr U.S. jurisdictions that permit same-sex marriage are the District of Columbia, which also passed a same-sex marriage law, and Massachusetts, Connecticut and Iowa which permit same-sex marriage as a consequence of court rulings.
Although the New York Domestic Relations Law contains no specific prohibition against marriages between individuals of the same sex, the Court of Appeals has held that the law limits marriage within New York State to different-sex couples. At the same time, in recognition of common law principles, New York courts have also held that marriages between individuals of the same sex legally performed in other jurisdictions are "entitled to recognition in New York in the absence of express legislation to the contrary."
The Marriage Equality Act provides that an otherwise valid marriage shall be valid regardless of whether the parties are of the same sex or different sex. To ensure that the law does not improperly intrude into matters of conscience or religious belief, the Act affirms that no member of the clergy can be compelled to solemnize any marriage. The law also ensures that the statutory protections for religious organizations found in the New York Human Rights law remains intact, including, guaranteeing that religious institutions remain free to choose who may use their facilities and halls for marriage ceremonies and celebrations, to whom they rent their housing accommodations, or to whom they provide religious services, consistent with their religious principles. The Act contains language to ensure that benevolent organizations remain exempt from New York prohibitions against discrimination in public accommodations, and are not be required to rent social halls to weddings of same-sex or other couples it chooses not to accommodate.
The Domestic Relations Law was amended by adding two new sections Domestic Relations Law §§10-a and 10-b to read as follows:
§ 10-a. Parties to a marriage.
1. A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex.
2. No government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage, whether deriving from statute, administrative or court rule, public policy, common law or any other source of law, shall differ based on the parties to the marriage being or having been of the same sex rather than a different sex. When necessary to implement the rights and responsibilities of spouses under the law, all gender-specific language or terms shall be construed in a gender-neutral manner in all such sources of law. (Laws of 2011, Ch 95, § 3, effective July 24, 2011)
§ 10-b. Religious exception.
1. Notwithstanding any state, local or municipal law, rule, regulation, ordinance, or other provision of law to the contrary, a religious entity as defined under the education law or section two of the religious corporations law, or a corporation incorporated under the benevolent orders law or described in the benevolent orders law but formed under any other law of this state, or a not-for- profit corporation operated, supervised, or controlled by a religious corporation, or any employee thereof, being managed, directed, or super vised by or in conjunction with a religious corporation, benevolent order, or a not-for-profit corporation as described in this subdivision,
shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any such refusal to provide services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action or result in any state or local government action to penalize, withhold benefits, or discriminate against such religious corporation, benevolent order, a not-for-profit corporation operated,
supervised, or controlled by a religious corporation, or any employee thereof being managed, directed, or supervised by or in conjunction with a religious corporation, benevolent order, or a not-for-profit corporation.
2. Notwithstanding any state, local or municipal law or rule, regulation, ordinance, or other provision of law to the contrary, nothing in this article shall limit or diminish the right, pursuant to subdivision eleven of section two hundred ninety-six of the executive law, of any religious or denominational institution or organization, or any organ-
ization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, to limit employment or sales or rental of housing accommodations or admission to or give preference to persons of the same religion or denomination or from taking such action as is calculated by such organization to promote the religious principles for which it is estab-
lished or maintained.
3. Nothing in this section shall be deemed or construed to limit the protections and exemptions otherwise provided to religious organizations under section three of article one of the constitution of the state of New York. ( Laws of 2011, Ch 96, § 1, effective July 24, 2011)
Domestic Relations Law § 13 was amended to add the last sentence which provides that “No application for a marriage license shall be denied on the ground that the parties are of the same, or a different, sex. Domestic Relations Law §13 provides as follows:
§ 13. Marriage licenses. It shall be necessary for all persons intended to be married in New York state to obtain a marriage license from a town or city clerk in New York state and to deliver said license, within sixty days, to the clergyman or magistrate who is to officiate before the marriage ceremony may be performed. In case of a marriage contracted pursuant to subdivision four of section eleven of this chapter, such license shall be delivered to the judge of the court of record before whom the acknowledgment is to be taken. If either party to the marriage resides upon an island located not less than twenty-five miles from the office or residence of the town clerk of the town of which such island is a part, and if such office or residence is not on such island such license may be obtained from any justice of the peace residing on such island, and such justice, in respect to powers and duties relating to marriage licenses, shall be subject to the provisions of this article governing town clerks and shall file all statements or affidavits received by him while acting under the provisions of this section with the town clerk of such town. No application for a marriage license shall be denied on the ground that the parties are of the same, or a different, sex. (Laws of 2011, Ch 95, § 4, effective July 24, 2011)
Domestic Relations Law §11 was amended to make clear that no member of the clergy acting in such capacity may be required to perform any marriage. Domestic Relations Law §11, subdivision 1 was amended, to add the provision that “no clergyman or minister as defined in section two of the religious corporations law, or Society for Ethical Culture leader shall be required to solemnize any marriage when acting in his or her capacity under this subdivision, and subdivision 1-a was added. (Laws of 2011, Ch 95, § 5, as amended by Laws of 2011, Ch 96, §2, effective July 24, 2011)
Domestic Relations Law §11 provides:
11 1. A clergyman or minister of any religion, or by the senior leader, or any of the other leaders, of The Society for Ethical Culture in the city of New York, having its principal office in the borough of Manhattan, or by the leader of The Brooklyn Society for Ethical Culture, having its principal office in the borough of Brooklyn of the city of
New York, or of the Westchester Ethical Society, having its principal office in Westchester county, or of the Ethical Culture Society of Long Island, having its principal office in Nassau county, or of the Riverdale-Yonkers Ethical Society having its principal office in Bronx county, or by the leader of any other Ethical Culture Society affiliated with the American Ethical Union; provided that no clergyman or minister as defined in section two of the religious corporations law, or Society for Ethical Culture leader shall be required to solemnize any marriage
when acting in his or her capacity under this subdivision. (Laws of 2011, Ch 95, § 5, as amended by Laws of 2011, Ch 96, §2, effective July 24, 2011)
1-a. A refusal by a clergyman or minister as defined in section two of the religious corporations law, or Society for Ethical Culture leader to solemnize any marriage under this subdivision shall not create a civil claim or cause of action or result in any state or local government action to penalize, withhold benefits or discriminate against such clergyman or minister. (Laws of 2011, Ch 95, § 5, as amended by Laws of 2011, Ch 96, §2, effective July 24, 2011)
The legislation provides that it is “...to be construed as a whole, and all parts of it are to be read and construed together. If any part of this act shall be adjudged by any court of competent jurisdiction to be invalid, the remainder of this act shall be invalidated. Nothing herein shall be construed to affect the parties' right to appeal the matter. “(Laws of 2011, Ch 96, § 3 which added § 5-a to Laws of 2011, Ch 95)
On June 24, 2011 New York enacted “The Marriage Equality Act’, which amended the domestic relations law to grant same-sex couples the ability to enter into civil marriages in New York. New York, has joined Vermont and New Hampshire in becoming the third state to pass legislation permitting same-sex marriage. The only othr U.S. jurisdictions that permit same-sex marriage are the District of Columbia, which also passed a same-sex marriage law, and Massachusetts, Connecticut and Iowa which permit same-sex marriage as a consequence of court rulings.
Although the New York Domestic Relations Law contains no specific prohibition against marriages between individuals of the same sex, the Court of Appeals has held that the law limits marriage within New York State to different-sex couples. At the same time, in recognition of common law principles, New York courts have also held that marriages between individuals of the same sex legally performed in other jurisdictions are "entitled to recognition in New York in the absence of express legislation to the contrary."
The Marriage Equality Act provides that an otherwise valid marriage shall be valid regardless of whether the parties are of the same sex or different sex. To ensure that the law does not improperly intrude into matters of conscience or religious belief, the Act affirms that no member of the clergy can be compelled to solemnize any marriage. The law also ensures that the statutory protections for religious organizations found in the New York Human Rights law remains intact, including, guaranteeing that religious institutions remain free to choose who may use their facilities and halls for marriage ceremonies and celebrations, to whom they rent their housing accommodations, or to whom they provide religious services, consistent with their religious principles. The Act contains language to ensure that benevolent organizations remain exempt from New York prohibitions against discrimination in public accommodations, and are not be required to rent social halls to weddings of same-sex or other couples it chooses not to accommodate.
The Domestic Relations Law was amended by adding two new sections Domestic Relations Law §§10-a and 10-b to read as follows:
§ 10-a. Parties to a marriage.
1. A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex.
2. No government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage, whether deriving from statute, administrative or court rule, public policy, common law or any other source of law, shall differ based on the parties to the marriage being or having been of the same sex rather than a different sex. When necessary to implement the rights and responsibilities of spouses under the law, all gender-specific language or terms shall be construed in a gender-neutral manner in all such sources of law. (Laws of 2011, Ch 95, § 3, effective July 24, 2011)
§ 10-b. Religious exception.
1. Notwithstanding any state, local or municipal law, rule, regulation, ordinance, or other provision of law to the contrary, a religious entity as defined under the education law or section two of the religious corporations law, or a corporation incorporated under the benevolent orders law or described in the benevolent orders law but formed under any other law of this state, or a not-for- profit corporation operated, supervised, or controlled by a religious corporation, or any employee thereof, being managed, directed, or super vised by or in conjunction with a religious corporation, benevolent order, or a not-for-profit corporation as described in this subdivision,
shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any such refusal to provide services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action or result in any state or local government action to penalize, withhold benefits, or discriminate against such religious corporation, benevolent order, a not-for-profit corporation operated,
supervised, or controlled by a religious corporation, or any employee thereof being managed, directed, or supervised by or in conjunction with a religious corporation, benevolent order, or a not-for-profit corporation.
2. Notwithstanding any state, local or municipal law or rule, regulation, ordinance, or other provision of law to the contrary, nothing in this article shall limit or diminish the right, pursuant to subdivision eleven of section two hundred ninety-six of the executive law, of any religious or denominational institution or organization, or any organ-
ization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, to limit employment or sales or rental of housing accommodations or admission to or give preference to persons of the same religion or denomination or from taking such action as is calculated by such organization to promote the religious principles for which it is estab-
lished or maintained.
3. Nothing in this section shall be deemed or construed to limit the protections and exemptions otherwise provided to religious organizations under section three of article one of the constitution of the state of New York. ( Laws of 2011, Ch 96, § 1, effective July 24, 2011)
Domestic Relations Law § 13 was amended to add the last sentence which provides that “No application for a marriage license shall be denied on the ground that the parties are of the same, or a different, sex. Domestic Relations Law §13 provides as follows:
§ 13. Marriage licenses. It shall be necessary for all persons intended to be married in New York state to obtain a marriage license from a town or city clerk in New York state and to deliver said license, within sixty days, to the clergyman or magistrate who is to officiate before the marriage ceremony may be performed. In case of a marriage contracted pursuant to subdivision four of section eleven of this chapter, such license shall be delivered to the judge of the court of record before whom the acknowledgment is to be taken. If either party to the marriage resides upon an island located not less than twenty-five miles from the office or residence of the town clerk of the town of which such island is a part, and if such office or residence is not on such island such license may be obtained from any justice of the peace residing on such island, and such justice, in respect to powers and duties relating to marriage licenses, shall be subject to the provisions of this article governing town clerks and shall file all statements or affidavits received by him while acting under the provisions of this section with the town clerk of such town. No application for a marriage license shall be denied on the ground that the parties are of the same, or a different, sex. (Laws of 2011, Ch 95, § 4, effective July 24, 2011)
Domestic Relations Law §11 was amended to make clear that no member of the clergy acting in such capacity may be required to perform any marriage. Domestic Relations Law §11, subdivision 1 was amended, to add the provision that “no clergyman or minister as defined in section two of the religious corporations law, or Society for Ethical Culture leader shall be required to solemnize any marriage when acting in his or her capacity under this subdivision, and subdivision 1-a was added. (Laws of 2011, Ch 95, § 5, as amended by Laws of 2011, Ch 96, §2, effective July 24, 2011)
Domestic Relations Law §11 provides:
11 1. A clergyman or minister of any religion, or by the senior leader, or any of the other leaders, of The Society for Ethical Culture in the city of New York, having its principal office in the borough of Manhattan, or by the leader of The Brooklyn Society for Ethical Culture, having its principal office in the borough of Brooklyn of the city of
New York, or of the Westchester Ethical Society, having its principal office in Westchester county, or of the Ethical Culture Society of Long Island, having its principal office in Nassau county, or of the Riverdale-Yonkers Ethical Society having its principal office in Bronx county, or by the leader of any other Ethical Culture Society affiliated with the American Ethical Union; provided that no clergyman or minister as defined in section two of the religious corporations law, or Society for Ethical Culture leader shall be required to solemnize any marriage
when acting in his or her capacity under this subdivision. (Laws of 2011, Ch 95, § 5, as amended by Laws of 2011, Ch 96, §2, effective July 24, 2011)
1-a. A refusal by a clergyman or minister as defined in section two of the religious corporations law, or Society for Ethical Culture leader to solemnize any marriage under this subdivision shall not create a civil claim or cause of action or result in any state or local government action to penalize, withhold benefits or discriminate against such clergyman or minister. (Laws of 2011, Ch 95, § 5, as amended by Laws of 2011, Ch 96, §2, effective July 24, 2011)
The legislation provides that it is “...to be construed as a whole, and all parts of it are to be read and construed together. If any part of this act shall be adjudged by any court of competent jurisdiction to be invalid, the remainder of this act shall be invalidated. Nothing herein shall be construed to affect the parties' right to appeal the matter. “(Laws of 2011, Ch 96, § 3 which added § 5-a to Laws of 2011, Ch 95)
Saturday, June 25, 2011
New York Enacts Same-Sex Marriage Laws on June 24, 2011
Laws of 2001, Ch 95 enacted the Marriage Equality Act, effective July 24, 2011. It amended New York's Domestic Relations Law to provide that:
•A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex
•No government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage shall differ based on the parties to the marriage being the same sex or a different sex
•No application for a marriage license shall be denied on the ground that the parties are of the same or a different sex.
Laws of 2011, Ch 96, effective July 24, 2011, was passed at the same time as the Marriage Equality ACt and amended the Marriage Equality Act to include protections for religious organizations. The Act states that no religious entity, benevolent organization or not-for-profit corporation that is operated, supervised or controlled by a religious entity, or their employees can be required to perform marriage ceremonies or provide their facilities for marriage ceremonies, consistent with their religious principles. In addition, religious entities will not be subject to any legal action for refusing marriage ceremonies. The Act will grant equal access to the government-created legal institution of civil marriage while leaving the religious institution of marriage to its own separate and fully autonomous sphere. Additionally, the Act was amended to include a clause that states that if any part is deemed invalid through the judicial process and after all appeals in the courts, the entire Act would be considered invalid.
•A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex
•No government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage shall differ based on the parties to the marriage being the same sex or a different sex
•No application for a marriage license shall be denied on the ground that the parties are of the same or a different sex.
Laws of 2011, Ch 96, effective July 24, 2011, was passed at the same time as the Marriage Equality ACt and amended the Marriage Equality Act to include protections for religious organizations. The Act states that no religious entity, benevolent organization or not-for-profit corporation that is operated, supervised or controlled by a religious entity, or their employees can be required to perform marriage ceremonies or provide their facilities for marriage ceremonies, consistent with their religious principles. In addition, religious entities will not be subject to any legal action for refusing marriage ceremonies. The Act will grant equal access to the government-created legal institution of civil marriage while leaving the religious institution of marriage to its own separate and fully autonomous sphere. Additionally, the Act was amended to include a clause that states that if any part is deemed invalid through the judicial process and after all appeals in the courts, the entire Act would be considered invalid.
Wednesday, June 22, 2011
Important New Decisions - June 22, 2011
Need to Give Appropriate Weight to the Feasibility of Preserving the Relationship Between the Parent and the Child Does Not Take Precedence over the Need to Give Appropriate Weight to the Economic Necessity for the Relocation
In Matter of Butler v Hess, --- N.Y.S.2d ----, 2011 WL 2436589 (N.Y.A.D. 4 Dept.) Petitioner father commenced a proceeding seeking to modify the parties' existing custody arrangement, pursuant to which the parties had joint custody with primary physical residence with respondent mother and visitation with the father. The father sought to prevent the mother from relocating with the child to Pennsylvania and sought sole custody of the child. The mother filed a cross petition in which she sought permission for the child to relocate with her to Pennsylvania. On appeal the Appellate Division agreed with her contention that Family Court erred in denying her cross petition. The record established that, pursuant to the existing arrangement, the father had visitation with the child on alternate weekends and Sunday overnights on the first Sunday of every month that does not fall within his regular access time. The mother remarried in December 2003, when the child was six years old, and the mother and the child began living with the mother's husband at that time. In December 2006, the mother lost her job as a result of budget cutbacks and, in July 2007, the mother's husband lost his job after his position was eliminated. The mother's husband accepted a job in Pennsylvania in October 2007, which was the basis for the mother's cross petition seeking permission to relocate with the child to Pennsylvania to join her husband. The Court concluded that the mother established by the requisite preponderance of the evidence that the proposed relocation would serve the child's best interests" (Matter of Tropea v. Tropea, 87 N.Y.2d 727, 741). While no single factor is determinative, the Court of Appeals in Tropea recognized that economic necessity may present a particularly persuasive ground for permitting the proposed move. The record reflected that the court did not adequately, if at all, consider the financial considerations underlying the requested relocation. The mother requested permission to relocate because she and her husband lost their jobs within a relatively short period of time. The mother's husband testified that both his health insurance, which also covered the mother and the child, and his severance pay ran out in August 2007. After the mother's husband lost his job, he and the mother depleted their savings and their house was placed into foreclosure. The mother and her husband testified that they unsuccessfully attempted to locate jobs in Western New York and that the mother's husband accepted the job in Pennsylvania out of financial necessity. The court based its determination primarily on its conclusion that the relocation would "qualitatively affect" the child's relationship with the father.
That was error because the need to 'give appropriate weight to the feasibility of preserving the relationship between the parent without primary physical custody and [the child through suitable visitation arrangements does not take precedence over the need to give appropriate weight to the economic necessity for the relocation (Matter of Cynthia L.C. v. James L.S., 30 AD3d 1085, 1086, quoting Tropea, 87 N.Y.2d at 740-741). The record established that the proposed relocation would not have a substantial impact on the visitation schedule. The mother and the husband testified that they would transport the child to and from Pennsylvania every other weekend, and they offered to pay for a hotel for the father in Pennsylvania on his off-weekends so that he could exercise additional access with the child. The mother further testified that the holiday access schedule would remain the same because she and her husband would be returning to Western New York at those times to visit with their respective families, who resided there. In addition, the mother's husband purchased video conferencing equipment for his household and the father's household to enable the father and the child to communicate during the week and on the father's off-weekends. Thus, the mother established "the feasibility of preserving the relationship between the [father] and child through suitable visitation arrangements" (Tropea, 87 N.Y.2d at 741)
Appeal Denied For Failure to Assemble Proper Record
In Gorelik v Gorelik, --- N.Y.S.2d ----, 2011 WL 2410437 (N.Y.A.D. 2 Dept.) the Appellate Division pointed out that it is the obligation of the appellant to assemble a proper record on appeal, which must include any relevant transcripts of proceedings before the Supreme Court. The plaintiff sought review of the judgment awarding the defendant the principal sum of $12,257, representing his pro rata share of the children's unreimbursed medical expenses and 100% of their summer camp expenses, made after a hearing was held to determine the validity and reasonableness of the claimed expenses. However, the plaintiff failed to include the hearing transcripts in the record on appeal. Accordingly, the record was inadequate to enable the Court to render an informed decision on the remaining issues raised in the plaintiff's brief including the propriety of the amounts awarded.
Allegations That Father Was Induced by Mother's Misrepresentations of Her Financial Circumstances to Enter into Stipulation Were Sufficient to Warrant Hearing on Issue of Fraudulent Inducement
In Cervera v Bressler, --- N.Y.S.2d ----, 2011 WL 2410503 (N.Y.A.D. 2 Dept.) pursuant to the decision and order of the Appellate Division (Cervera v. Bressler, 50 AD3d 837), a hearing was commenced on June 10, 2008, before a Special Referee Snyder, to consider the parties' relative financial positions and address the father's applications for reapportionment of the parties' respective obligations for payment of fees of the forensic evaluator and the attorney for the child from the 50/50 apportionment originally agreed to, and for an award of an attorney's fee. While that hearing, which concluded sometime in October 2009, was ongoing, the father moved to vacate certain portions of a so-ordered stipulation dated July 19, 2004 whereby the father waived his right to seek an attorney's fee and reapportionment of fees and costs of the court forensic evaluator and the attorney for the child incurred up to the date of the stipulation, in connection with a custody dispute between the parties beginning in 2002. In support of the motion, the father argued that those portions of the stipulation should be vacated based upon new evidence discovered during the ongoing hearing regarding the parties' finances, that the mother had misrepresented her finances in 2004. The father claimed that he had relied upon those misrepresentations in entering into the stipulation in which he agreed to waive his rights. Supreme Court denied that branch of the plaintiff's motion which was to vacate the aforementioned portions of the stipulation, determining that the claims regarding the stipulation and fees incurred in connection with the litigation resolved thereby, were barred by the doctrine of collateral estoppel, that the father had failed to meet his burden of showing that the stipulation was the result of fraud or overreaching, or that its terms were unconscionable, and that, in any event, even if the stipulation was proven to have been procured by fraud, the father had ratified it by accepting its benefits for a period of more than five years.
The Appellate Division reversed and remitted for a hearing. It held that the father's allegations that he was induced by the mother's misrepresentations of her financial circumstances to enter into the stipulation were sufficient to warrant a hearing on the issue of whether those portions of the stipulation were fraudulently induced. The father's allegations were supported by evidence, elicited at the hearing before the Special Referee regarding the financial circumstances of the parties, that the mother had assets available to her in 2004 of at least $306,631, her husband's gross income as reported on their joint tax returns for 2004, as opposed to the $105,000 gross income reported on her Statement of Net Worth dated May 3, 2004, the sole document provided by her at the time of the stipulation. Moreover, the mother's 2004 joint bank statements provided at the hearing before the Special Referee showed deposits totaling approximately $450,000 for that year, whereas the 2004 Statement of Net Worth was blank for "Total Cash Accounts."
Supreme Court erred in determining that the father was barred by the doctrine of collateral estoppel from litigating the issues of counsel fees and reapportionment of the parties' responsibilities for payment of fees incurred in connection with litigation from 2002 up to the date of the stipulation. "In order to invoke the doctrine of collateral estoppel, (1) the identical issue must have necessarily been decided in the prior [litigation] and be decisive of the present [motion], and (2) the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination". The issues regarding the fees incurred prior to the stipulation were never litigated, since the father waived his right to do so by the stipulation at issue herein.
The Appellate Division held that Supreme Court erred in concluding that the father had "knowingly and voluntarily" waived his rights to litigate these issues, since the question raised by the new evidence was precisely that: whether the father's waiver was knowing and voluntary, or whether it was fraudulently induced by the mother's misrepresentations.
As to the father's right to move to vacate portions of the stipulation almost five years after the stipulation was entered into, a waiver will not be inferred from mere silence or inaction. A waiver requires that the party to be estopped be aware of certain facts and, being aware of them, elect not to take advantage of them.
Moreover, estoppel will lie only where an individual has accepted the benefits of an agreement. Since the father did not have express knowledge of the mother's assets until sometime during the hearing regarding the parties' relative financial positions, which commenced on June 10, 2008, and concluded in October 2009, the father could not be said to have waived his right to seek vacatur of the stipulation simply because his motion was brought almost five years after the stipulation was entered into and there was no evidence that the father enjoyed any "benefits" of the stipulation by foregoing a possible award of an attorney's fee or reimbursement of payment of fees based upon a reapportionment of the parties' responsibilities for the same.
In Matter of Butler v Hess, --- N.Y.S.2d ----, 2011 WL 2436589 (N.Y.A.D. 4 Dept.) Petitioner father commenced a proceeding seeking to modify the parties' existing custody arrangement, pursuant to which the parties had joint custody with primary physical residence with respondent mother and visitation with the father. The father sought to prevent the mother from relocating with the child to Pennsylvania and sought sole custody of the child. The mother filed a cross petition in which she sought permission for the child to relocate with her to Pennsylvania. On appeal the Appellate Division agreed with her contention that Family Court erred in denying her cross petition. The record established that, pursuant to the existing arrangement, the father had visitation with the child on alternate weekends and Sunday overnights on the first Sunday of every month that does not fall within his regular access time. The mother remarried in December 2003, when the child was six years old, and the mother and the child began living with the mother's husband at that time. In December 2006, the mother lost her job as a result of budget cutbacks and, in July 2007, the mother's husband lost his job after his position was eliminated. The mother's husband accepted a job in Pennsylvania in October 2007, which was the basis for the mother's cross petition seeking permission to relocate with the child to Pennsylvania to join her husband. The Court concluded that the mother established by the requisite preponderance of the evidence that the proposed relocation would serve the child's best interests" (Matter of Tropea v. Tropea, 87 N.Y.2d 727, 741). While no single factor is determinative, the Court of Appeals in Tropea recognized that economic necessity may present a particularly persuasive ground for permitting the proposed move. The record reflected that the court did not adequately, if at all, consider the financial considerations underlying the requested relocation. The mother requested permission to relocate because she and her husband lost their jobs within a relatively short period of time. The mother's husband testified that both his health insurance, which also covered the mother and the child, and his severance pay ran out in August 2007. After the mother's husband lost his job, he and the mother depleted their savings and their house was placed into foreclosure. The mother and her husband testified that they unsuccessfully attempted to locate jobs in Western New York and that the mother's husband accepted the job in Pennsylvania out of financial necessity. The court based its determination primarily on its conclusion that the relocation would "qualitatively affect" the child's relationship with the father.
That was error because the need to 'give appropriate weight to the feasibility of preserving the relationship between the parent without primary physical custody and [the child through suitable visitation arrangements does not take precedence over the need to give appropriate weight to the economic necessity for the relocation (Matter of Cynthia L.C. v. James L.S., 30 AD3d 1085, 1086, quoting Tropea, 87 N.Y.2d at 740-741). The record established that the proposed relocation would not have a substantial impact on the visitation schedule. The mother and the husband testified that they would transport the child to and from Pennsylvania every other weekend, and they offered to pay for a hotel for the father in Pennsylvania on his off-weekends so that he could exercise additional access with the child. The mother further testified that the holiday access schedule would remain the same because she and her husband would be returning to Western New York at those times to visit with their respective families, who resided there. In addition, the mother's husband purchased video conferencing equipment for his household and the father's household to enable the father and the child to communicate during the week and on the father's off-weekends. Thus, the mother established "the feasibility of preserving the relationship between the [father] and child through suitable visitation arrangements" (Tropea, 87 N.Y.2d at 741)
Appeal Denied For Failure to Assemble Proper Record
In Gorelik v Gorelik, --- N.Y.S.2d ----, 2011 WL 2410437 (N.Y.A.D. 2 Dept.) the Appellate Division pointed out that it is the obligation of the appellant to assemble a proper record on appeal, which must include any relevant transcripts of proceedings before the Supreme Court. The plaintiff sought review of the judgment awarding the defendant the principal sum of $12,257, representing his pro rata share of the children's unreimbursed medical expenses and 100% of their summer camp expenses, made after a hearing was held to determine the validity and reasonableness of the claimed expenses. However, the plaintiff failed to include the hearing transcripts in the record on appeal. Accordingly, the record was inadequate to enable the Court to render an informed decision on the remaining issues raised in the plaintiff's brief including the propriety of the amounts awarded.
Allegations That Father Was Induced by Mother's Misrepresentations of Her Financial Circumstances to Enter into Stipulation Were Sufficient to Warrant Hearing on Issue of Fraudulent Inducement
In Cervera v Bressler, --- N.Y.S.2d ----, 2011 WL 2410503 (N.Y.A.D. 2 Dept.) pursuant to the decision and order of the Appellate Division (Cervera v. Bressler, 50 AD3d 837), a hearing was commenced on June 10, 2008, before a Special Referee Snyder, to consider the parties' relative financial positions and address the father's applications for reapportionment of the parties' respective obligations for payment of fees of the forensic evaluator and the attorney for the child from the 50/50 apportionment originally agreed to, and for an award of an attorney's fee. While that hearing, which concluded sometime in October 2009, was ongoing, the father moved to vacate certain portions of a so-ordered stipulation dated July 19, 2004 whereby the father waived his right to seek an attorney's fee and reapportionment of fees and costs of the court forensic evaluator and the attorney for the child incurred up to the date of the stipulation, in connection with a custody dispute between the parties beginning in 2002. In support of the motion, the father argued that those portions of the stipulation should be vacated based upon new evidence discovered during the ongoing hearing regarding the parties' finances, that the mother had misrepresented her finances in 2004. The father claimed that he had relied upon those misrepresentations in entering into the stipulation in which he agreed to waive his rights. Supreme Court denied that branch of the plaintiff's motion which was to vacate the aforementioned portions of the stipulation, determining that the claims regarding the stipulation and fees incurred in connection with the litigation resolved thereby, were barred by the doctrine of collateral estoppel, that the father had failed to meet his burden of showing that the stipulation was the result of fraud or overreaching, or that its terms were unconscionable, and that, in any event, even if the stipulation was proven to have been procured by fraud, the father had ratified it by accepting its benefits for a period of more than five years.
The Appellate Division reversed and remitted for a hearing. It held that the father's allegations that he was induced by the mother's misrepresentations of her financial circumstances to enter into the stipulation were sufficient to warrant a hearing on the issue of whether those portions of the stipulation were fraudulently induced. The father's allegations were supported by evidence, elicited at the hearing before the Special Referee regarding the financial circumstances of the parties, that the mother had assets available to her in 2004 of at least $306,631, her husband's gross income as reported on their joint tax returns for 2004, as opposed to the $105,000 gross income reported on her Statement of Net Worth dated May 3, 2004, the sole document provided by her at the time of the stipulation. Moreover, the mother's 2004 joint bank statements provided at the hearing before the Special Referee showed deposits totaling approximately $450,000 for that year, whereas the 2004 Statement of Net Worth was blank for "Total Cash Accounts."
Supreme Court erred in determining that the father was barred by the doctrine of collateral estoppel from litigating the issues of counsel fees and reapportionment of the parties' responsibilities for payment of fees incurred in connection with litigation from 2002 up to the date of the stipulation. "In order to invoke the doctrine of collateral estoppel, (1) the identical issue must have necessarily been decided in the prior [litigation] and be decisive of the present [motion], and (2) the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination". The issues regarding the fees incurred prior to the stipulation were never litigated, since the father waived his right to do so by the stipulation at issue herein.
The Appellate Division held that Supreme Court erred in concluding that the father had "knowingly and voluntarily" waived his rights to litigate these issues, since the question raised by the new evidence was precisely that: whether the father's waiver was knowing and voluntary, or whether it was fraudulently induced by the mother's misrepresentations.
As to the father's right to move to vacate portions of the stipulation almost five years after the stipulation was entered into, a waiver will not be inferred from mere silence or inaction. A waiver requires that the party to be estopped be aware of certain facts and, being aware of them, elect not to take advantage of them.
Moreover, estoppel will lie only where an individual has accepted the benefits of an agreement. Since the father did not have express knowledge of the mother's assets until sometime during the hearing regarding the parties' relative financial positions, which commenced on June 10, 2008, and concluded in October 2009, the father could not be said to have waived his right to seek vacatur of the stipulation simply because his motion was brought almost five years after the stipulation was entered into and there was no evidence that the father enjoyed any "benefits" of the stipulation by foregoing a possible award of an attorney's fee or reimbursement of payment of fees based upon a reapportionment of the parties' responsibilities for the same.
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