Divorce - Grounds - Domestic Relations Law § 170 (7) - Two Appellate Divisions Hold that Statement under Oath That the Marriage Was Irretrievably Broken for a Period of Six Months Was Sufficient to Establish Cause of Action for Divorce.

In Hoffer-Adou v. Adou, --- N.Y.S.2d ----, 2014 WL 5471501 (N.Y.A.D. 1 Dept.) the Appellate Division affirmed an order which sustained the validity of the parties separation agreement. It also held that contrary to the husband's contention, the wife was entitled to a judgment of divorce under the no-fault provision of DRL § 170(7), since her statement under oath that the marriage was irretrievably broken for a period of six months was sufficient to establish her cause of action for divorce as a matter of law (citing Townes v. Coker, 35 Misc.3d 543, 547 [Sup Ct, Nassau County 2012] ). Supreme Court's granting of the divorce did not contradict DRL § 170(7)'s requirement that "[n]o judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce." The parties' separation agreement resolved the issues of child custody and support. Their subsequent commencement in the Family Court of proceedings concerning these issues did not render the court without authority to grant the divorce, since non-compliance with/or enforcement of, the separation agreement is not an element of Domestic Relations Law §170(7).

In Trbovich v Trbovich,--- N.Y.S.2d ----, 2014 WL 6497983 (N.Y.A.D. 4 Dept.) the Appellate Division affirmed an order which denied the plaintiff's motion for summary judgment seeking a divorce pursuant to Domestic Relations Law § 170(7). It agreed with plaintiff that the relationship has broken down irretrievably for a period of at least six months opposing spouse in a no-fault divorce action pursuant to Domestic Relations Law § 170(7) is not entitled to litigate the other spouse's sworn statement (citing Palermo v. Palermo, 35 Misc.3d 1211[A], 2011 N.Y. Slip Op 52506[U], affd for reasons stated 100 AD3d 1453; see e.g. Rinzler v. Rinzler, 97 AD3d 215, 218; A.C. v. D.R., 32 Misc.3d 293, 306), and indicated that to the extent that its decision in Tuper v. Tuper (98 AD3d 55, 59 n) suggested otherwise, it declined to follow it. Nevertheless, plaintiff was not entitled to summary judgment under Domestic Relations Law § 170(7) at this juncture of the litigation because the ancillary issues had not been resolved by the parties or determined by the court. [One judge dissented]

Family Court Act §451(1) amended

          Family Court Act §451(1) , which was amended, effective December 22, 2014,  provides that an application to modify an order of child support must be accompanied by "an affidavit and other evidentiary material sufficient to establish a prima facie case for the relief requested" in order to entitle the petitioner to a hearing on any material issues of fact.  No hearing is required if an affidavit has not been submitted even if material issues are present in the case.  The amendment removed the requirement of filing an affidavit with the petition by removing word “modify” from subdivision 1 and adding  a new subdivision 2, which provides: “ A proceeding to modify an order of support shall  be  commenced  by    the filing of a petition which shall allege facts sufficient to meet one  or more of the grounds enumerated in subdivision three of this section. Former subdivision  2 has been renumbered subdivision 3. See Laws of 2014, Ch 373, effective December 22, 2014.

Court of Appeals Establishes Rule for Third Party Discovery Subpoena

In Kapon v Koch, ___NY 3d ___, 2014 WL 1315590, 2014 N.Y. Slip Op. 02327 (2014) the Court of Appeals, in an opinion by Judge Pigott, held that where a subpoena is served by a party seeking discovery from a nonparty pursuant to CPLR 3101(a)(4), (1) the subpoenaing party must first sufficiently state the "circumstances or reasons" underlying the subpoena (either on the face of the subpoena itself or in a notice accompanying it), otherwise it may be challenged for facial insufficiency, and (2) the witness, in moving to quash, must establish either that the discovery sought is "utterly irrelevant" to the action or that the "futility of the process to uncover anything legitimate is inevitable or obvious." (3) Should the witness meet this burden, the subpoenaing party must then establish that the discovery sought is "material and necessary" to the prosecution or defense of an action, i.e., that it is relevant.

Family Offense Statute Declared Unconstitutional

In People v Golb, ___NY3d __,2014 WL 1883943 (2014) the Court of Appeals held that (Penal Law § 240.30(1)(a), aggravated harassment in the Second Degree   was unconstitutional, under both Federal and State law because it was vague and overbroad.  The statute, which is frequently invoked in family offense proceedings, provides that “[a] person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she ... communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm..” The Court noted that three federal judges have already found this statute unconstitutional.

Important New Decisions - June 1, 2014

Pendente Lite Maintenance -  Domestic Relations Law § 236(b)(5-a) - Second Department Holds That  Formula Amount Is Intended to Cover All of a  Payee Spouse's Basic Living Expenses, Including Housing Costs, the Costs of Food and Clothing, and Other Usual Expenses. However, it May Be Appropriate to Direct Payment by the Monied Spouse of the Mortgage and Taxes on the Marital Residence and Other Expenses of the Nonmonied Spouse under Certain Circumstances 


In Vistocco v Jardin--- N.Y.S.2d ----, 2014 WL 1465580 (N.Y.A.D. 2 Dept.), the parties were married in 1995 and had three unemancipated children. The Supreme Court awarded the defendant $3,000 per week for child support and $3,000 per week in temporary spousal maintenance, directed the plaintiff to pay the mortgage and taxes on the marital residence where the defendant resided with the parties' children, directed the plaintiff to pay the defendant's car insurance, and awarded the defendant interim counsel fees and expert fees in the sums of $12,500 and $3,500, respectively. The Appellate Division affirmed.   The plaintiff argued, inter alia, that the Supreme Court erred in directing him to pay, in addition to spousal maintenance, the mortgage and taxes on the marital residence and the defendant's car insurance. He contends that the pendente lite maintenance award is intended to cover the defendant's basic living expenses, which include the mortgage, property taxes, and her car insurance. The Court observed that the formula to determine temporary spousal maintenance that is outlined in Domestic Relations Law § 236(B)(5-a)(c) is intended to cover all of a  payee spouse's basic living expenses, including housing costs, the costs of food and clothing, and other usual expenses (see  Khaira v. Khaira, 93 AD3d 194). However, it may be appropriate to direct payment by the monied spouse of the mortgage and taxes on the marital residence and other expenses of the nonmonied spouse under certain circumstances (see id.). In light of the evidence that the plaintiff's income exceeded $500,000 and the gross disparity between the plaintiff's income and the defendant's income, the Supreme Court properly awarded additional support in the form of a directive to the plaintiff to pay the mortgage and taxes on the marital residence (Domestic Relations Law § 236[B][5-a][c][2][a][ii] ), as well as the defendant's car insurance (see e.g. Goldberg v. Goldberg, 98 AD3d 944; Macagnone v. Macagnone, 7 AD3d 680).


Equitable Distribution - Property Distribution - Marital Debt -  General Rule Is That Financial Obligations Incurred During Marriage Which Are Not Solely Responsibility of One Party Should Be Shared Equally by the Parties. However, a party is entitled to a credit for payments made to satisfy the other spouse's legal obligations.
  
                                                    
In McKay v Groesbeck, --- N.Y.S.2d ----, 2014 WL 1910489 (N.Y.A.D. 2 Dept.), the Appellate Division pointed out that a party's maintenance and child support obligations are retroactive to the date of the application therefor, and except as otherwise provided, any retroactive amount due shall be paid, as the court directs, taking into account any amount of temporary maintenance or child support which has been paid (DRL § 236[B][6][a]; DRL§ 236[B][7][a]). Generally, voluntary payments made by a parent for the benefit of his or her children may not be credited against amounts due pursuant to a judgment of divorce. A party is not entitled to a credit for payments made to satisfy that party's own legal obligations that were not made pursuant to a pendente lite order of support . In this case, there was a pendente lite order for temporary child support of $1,000 per month issued in 2006, but no payments were made pursuant to that order. However, a party is entitled to a credit for payments made to satisfy the other spouse's legal obligations. It held that the defendant should have received a credit towards arrears for any payments he made toward the plaintiff's car payments and insurance, and for one half of the payments he made
toward the mortgage and carrying charges on the marital home, as those payments were made to satisfy the plaintiff's legal obligations.


Action for a Divorce  - Voluntary Discontinuance - CPLR 3217 -  Motion  Denied Where Motion Is an Attempt to Avoid an Adverse Order and Discontinuance Would Result in Prejudice to Defendant 
                                                      

In Turco v Turco--- N.Y.S.2d ----, 2014 WL 1798397 (N.Y.A.D. 2 Dept.), the Appellate Division observed that in the absence of special circumstances, such as prejudice to a substantial right of the defendant, or other improper consequences, a motion for a voluntary discontinuance should be granted" ( Wells Fargo Bank, N.A. v. Chaplin, 107 A.D.3d at 883, 969 N.Y.S.2d 67). Supreme Court providently exercised its discretion in denying the plaintiff's application, in effect, to voluntarily discontinue the action, made on the first day of trial, since the record supported a finding that she was merely attempting to avoid an adverse order of the court, and there was a showing that the defendant would be prejudiced by such discontinuance.



Agreements - Construction - Forum Selection Clause - New York State's Public Policy with Regard Removal of Barriers to Remarriage (DRL § 253) Cannot Override Forum Selection Clause in  Prenuptial  Agreement

In Ofer v Sirota, --- N.Y.S.2d ----, 2014 WL 1386552 (N.Y.A.D. 1 Dept.) the Appellate Division held that  Supreme Court properly found that the parties' prenuptial agreement was enforceable and that the forum selection clause in the agreement, which granted exclusive jurisdiction over any divorce litigation to a competent Israeli court, was also enforceable (Sterling Natl. Bank v. Eastern Shipping Worldwide, Inc., 35 AD3d 222, 222 [1st Dept 2006] ). Accordingly, Supreme Court properly dismissed this action.  The fact that plaintiff alleged that defendant refused to grant her a get (Jewish divorce decree) as required by their agreement was irrelevant to determining whether to enforce the forum selection clause.  There was no merit to plaintiff's claim that she would be deprived of her day in court in Israel because Israel does not provide for no fault divorce and defendant's consent to a divorce is required there. While litigation in Israel may be more challenging, plaintiff would have her day in court. It was inappropriate for plaintiff to attempt to avoid Israel's legal system because New York's legal system may treat her more favorably by permitting her to obtain a no fault divorce. Plaintiff, an Israeli citizen, was well aware that Jewish religious laws govern Israeli divorces when she consented to the forum selection clause in the agreement. This State's strong and important public policy with regard to compelling civil litigants to remove any barriers to remarriage (DRL § 253) cannot override the forum selection clause that  the parties knowingly included in their prenuptial agreement, particularly because plaintiff will not be deprived of her day in court in the chosen forum.


Child Support - Award - Disparity in Income and Expenses, and Availability of Tax Deductions Rendered Presumptive Amount of Child Support Unjust or Inappropriate

In Smith v Smith, --- N.Y.S.2d ----, 2014 WL 1316325 (N.Y.A.D. 3 Dept.), Supreme Court calculated the mother's presumptive weekly child support obligation to be $258.33, but concluded that it would be "just and appropriate" to reduce it to $30 per week. The court also directed that child support be paid retroactive to the date of the judgment of divorce, excluding a nine-month period when the mother was unemployed and received inpatient treatment for alcohol dependency. Finally, the court denied the father's request for recoupment of the child support payments he made to the mother pursuant to the judgment of divorce. The Appellate Division found that father's income was twice that of the mother and such a disparity, alone, can justify a deviation. The father also received significant tax deductions and credits for the children, whereas the mother received none (Domestic Relations Law  240[1-b][f][4]  ). Additionally, the mother was responsible for paying a significant portion of the children's uninsured health-related and child-care expenses, as well as other costs associated with her extended and substantial parenting time, all of which impacted the mother's financial resources (Domestic Relations Law § 240[1-b][f][1] ). The mother purchased a home within the children's school district to facilitate the custodial arrangement, as a result of which she has a significant commute to work, with its attendant expenses. Giving careful consideration to the relevant factors, it found no  abuse of Supreme Court's discretion in concluding that the presumptive amount of child support attributable to the mother was unjust or inappropriate. Nonetheless, Supreme Court's reduction to $30 weekly was excessive and, it found $150 per week to be "just and appropriate" under the circumstances present here (Domestic Relations Law §240[1-b][g]  ). The Court agreed with the father that the mother's child support obligation should have been made retroactive to February 9, 2009, the date the father made a specific demand therefor in his complaint. (Domestic Relations Law § 236[B][7][a]). 


Child Custody - Award - Standing - Natural Parent Has Standing to Seek Legal Custody of His or Her Child 

In Matter of Sanchez v Bonilla, --- N.Y.S.2d ----, 2014 WL 1043094 (N.Y.A.D. 2 Dept.) the Appellate Division held that  Family Court erred in dismissing the petition in which the mother sought orders of custody for her two teenaged children.   A natural parent has standing to seek legal custody of his or her child (see Domestic Relations Law § 70 [a]. According to the petitioner, the children's father abandoned the children and, due to their immigration status, they could be returned to El Salvador where they had been subjected to abuse by family members and threats by gang members.   The petitioner alleged that awarding her custody would be in the best interests of the children, since it would enable the children to apply for special immigrant juvenile status. Since the Family Court dismissed the petition without conducting a hearing or considering the best interests of the children, it remitted the matter to the Family Court for a hearing and a new determination of the custody petition thereafter.


Children - Immigration -  8 USC § 1101(a)(27)(J) -Special Immigrant Juvenile Status- No Restriction as to Who May Qualify as a Guardian.

In Matter of Marisol N.H., --- N.Y.S.2d ----, 2014 WL 444170 (N.Y.A.D. 2 Dept.), the children, Samuel D.H., Marisol N.H., and Silvia J.H., ages 19, 18, and 16, respectively, were born in El Salvador to Miriam A.G.  mother) and Leonidas H. ( father). According to the allegations made in support of the petitions, the father drank often, and he verbally and physically abused the mother. When Samuel was just four years old, the mother left the father, taking the children with her to her mother's home. The father never again had meaningful contact with the children; he did not provide them with any financial support, give them any birthday or Christmas presents, or show any interest in them. It was further alleged that in El Salvador, in the small neighborhood where the mother and the  children settled, now abandoned by their father, they lived under the constant threat of violence from gangs. Members of a certain gang threatened to kill Samuel, as they did with many other children, if he refused to join their ranks, and they tried to extort money from his grandmother in exchange for sparing his life. Samuel knew nine children, one a close friend, who had refused to join that gang and were later killed. One gang member told the mother he would kill her, if she did not have sexual relations with him. The perilous situation led the mother to leave El Salvador for the United States so that she could establish a safe home for the children. She found work and lived with family and friends, saving money so that she could bring the children to her. Meanwhile, though, Samuel had stopped attending school because gang members had continued to threaten to kill him if he did not join them. Fearing for Samuel's life, the mother arranged for him to travel to the United States. Marisol and Silvia stayed behind with their grandmother. Subsequently, while the children's grandmother was walking home from work, she was killed by members of that gang. Three gang members were arrested for the murder, but the threats did not abate; other gang members threatened the lives of all the members of the mother's family. Marisol and Silvia stopped attending school, and would only leave their house if an unrelated adult male accompanied them. The mother then brought Marisol and Silvia to the United States. Now, the children lived with their mother in Nassau County, along with their teenaged uncle, Javier, who was left orphaned by the death of the children's grandmother. The mother, who was Javier's legal guardian, worked 60 hours per week in order to support him and the children.

The children petitioned the Family Court for the appointment of the mother as their guardian so that they could pursue special immigrant juvenile status ( SIJS) as a means to obtaining lawful residency status in the United States, and be freed from the fear of being returned to El Salvador, where they would have no parent to support and protect them. At a conference Family Court concluded that a best interests hearing was not warranted, inter alia, because the children had the "mother to protect them." There was "no reason," even if it was just "strictly for immigration purposes," to award the mother guardianship "of her own children." The Family Court dismissed the petitions without prejudice for failure to state a cause of action. 

The Appellate Division, in an opinion by Justice Chambers, reversed. She observed that to obtain SIJS status the child, or someone acting on his or her behalf, must first petition a state juvenile court to issue an order making special findings of fact that the child is dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. A state juvenile court must find that reunification with one or both parents is not viable due to parental abuse, neglect, abandonment, or a similar basis, and that it is not in the child's best interests to be returned to his or her home country (see 8 USC § 1101[a][27][J][iii]; 8 CFR 204.11[c]; Matter of Marcelina M.-G. v Israel S., 112 AD3d at 107). In order to satisfy the requirement that the subject children be legally committed to an individual appointed by a state or juvenile court, they requested that their natural mother be appointed as their guardian.   An infant includes a person less than 21 years of age who consents to the appointment of a guardian (see Family Ct Act § 661[a]). 

The Second Department found that the Family Court has the statutory authority to appoint a natural parent to be the guardian of his or her children. Family Court Act § 661 provides that "the provisions of the surrogate's court procedure act shall apply to the extent they are applicable to guardianship of the person of a minor or infant and do not conflict with the specific provisions of this act" (Family Ct Act § 661[a]). Under the Surrogate's Court Procedure Act, "any person" (SCPA 1703) may petition to be named as guardian of an infant, and a guardian is "[a]ny person to whom letters of guardianship have been issued by a court of this state, pursuant to this act, the family court act or article 81 of the mental hygiene law" (SCPA 103[24]). Since these statutes are without limitation, they include even the appointment of a natural parent as guardian. The Court concluded that the Family Court has the statutory authority to grant a natural parent's petition for guardianship of his or her child, regardless of whether the petition is opposed.

The Court also held that Family Court erred in refusing to conduct a hearing to determine whether granting the guardianship petition would be in the best interests of the children. "When considering guardianship appointments, the infant's best interests are paramount". The fact that a child has one fit parent available to care for him or her "does not, by itself, preclude the issuance of special findings under the SIJS statute." Rather, a child may be eligible for SJIS findings "where reunification with just one parent is not viable as a result of abuse, neglect, abandonment, or a similar state law basis". Moreover, in determining whether it is in the best interests of a child to grant a guardianship petition, it is entirely consistent with the legislative aim of the SIJS statute to consider the plight the child would face if returned to his or her native country and placed in the care of a parent who had previously abused, neglected, or abandoned him or her. In this case there were sufficient allegations in the guardianship petitions and supporting papers to suggest that naming the mother as guardian of the subject children would be in their best interests .The father abandoned the children (see Matter of Marcelina M.-G. v Israel S., 112 AD3d at 110, 114). If the children were returned to their native country, they may be separated from their only other parent, who first left El Salvador because she was threatened with sexual assault and wanted to earn enough money to bring the children to the United States. The children will not have the protection of their grandmother who became their temporary, de facto guardian in El Salvador once the mother immigrated to the United States, as members of a gang murdered her. Alone, without either parent or their maternal grandmother, the children would face the prospect of having to protect themselves from violent gang members, which, cruelly, may be possible only by joining them. Naming the mother as guardian of the children may potentially enable the children to pursue legal status in the United States. If legal status is granted, the children may avoid being separated from their mother and instead keep their family intact and safe, away from the perils present in El Salvador.