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.

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)

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.

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.

Important New Decisions - June 15, 2011

Fair Trial Denied Where Family Court Judge Took on the Function and Appearance of an Advocate

In Matter of Jacquilin M, 83 A.D.3d 844, 922 N.Y.S.2d 111 (2 Dept, 2011) Jacqulin M. appealed from an order of disposition of the Family which, upon a fact-finding order of a hearing, finding that the appellant committed acts which, if committed by an adult, would have constituted the crimes of grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, adjudged her to be a juvenile delinquent, and placed her on probation for a period of 18 months. The order of disposition was reversed on the law and as a matter of discretion in the interest of justice, the fact-finding order was vacated, and the matter is remitted to the Family Court for a new fact-finding hearing. The appellant's contention that she was deprived of a fair trial because the Family Court Judge took on the function of an advocate by excessively intervening in the fact-finding hearing was unpreserved for appellate review. However, the Appellate Division reached this issue in the exercise of its interest of justice jurisdiction because the Family Court Judge's excessive intervention deprived the appellant of her right to a fair fact-finding hearing. It observed that although trial courts may appropriately take an active role in the presentation of evidence "in order to clarify a confusing issue or to avoid misleading the trier of fact" (People v. Arnold, 98 N.Y.2d 63, 67, 745 N.Y.S.2d 782, 772 N.E.2d 1140), the function of the judge is "to protect the record at trial, not to make it". Thus, while a certain degree of judicial intervention in the presentation of evidence is permissible, "the line is crossed when the judge takes on either the function or appearance of an advocate at trial" (People v. Arnold, 98 N.Y.2d at 67, 745 N.Y.S.2d 782, 772 N.E.2d 1140; see People v. Zamorano, 301 A.D.2d 544, 546, 754 N.Y.S.2d 645). These principles apply in bench trials, including juvenile delinquency proceedings. Here, the Family Court Judge took on the function and appearance of an advocate by extensively participating in both the direct and cross-examination of the two presentment agency witnesses and eliciting testimony which strengthened the presentment agency's case. Furthermore, when the appellant indicated, during the course of her direct examination, that a certain document which would support her defense had been turned over to a Probation Department officer, the Judge interrupted her testimony to question a Probation Department Court Liaison who was present in the courtroom about whether documents of this nature would indeed be kept by the Probation Department. The Judge then summoned the Probation Department officer assigned to the appellant's case to the courtroom, and indicated to the appellant's attorney that unless he agreed to stipulate as to what certain Probation Department records would reflect, those records would be admitted into evidence through the Probation Officer's testimony. It was clear from the record that neither the presentment agency nor the appellant's attorney intended to call the Probation Officer as a witness or enter the Probation Department records into evidence, and the stipulation regarding what those records reflected had the effect of rebutting a portion of the appellant's testimony. Thus, the Judge essentially "assumed the parties' traditional role of deciding what evidence to present" . Furthermore, the Judge offered no explanation on the record as to why he felt compelled to solicit this evidence. Under these circumstances, a new fact-finding hearing was warranted.


Third Department Explains Difference Between in Camera Hearing and True Lincoln Hearing

In Matter of Spencer v Spencer, --- N.Y.S.2d ----, 2011 WL 2150028 (N.Y.A.D. 3 Dept.) the parties were the parents of three children (born in 1997, 1999 and 2001). In their divorce judgment, the parties agreed to joint legal custody, physical placement with respondent (mother), and visitation with petitioner (father) every other weekend. In 2009, the father commenced a proceeding seeking to modify the custodial arrangement based upon an improper relationship that the mother's male friend had with one of the parties' children while in the mother's care. Family Court temporarily placed the children with the father. After several court appearances and an in camera interview with each of the children, the court issued an order awarding primary physical custody to the father and extensive visitation to the mother. The Appellate Division found that the mother did not consent to the court making and order without a hearing, and held that Family Court erred by modifying the custody order without holding a fact-finding hearing. The father's petition adequately alleged a change in circumstances, namely that the mother exposed the children to a convicted sex offender and she was aware that this individual had an inappropriate relationship with one of the children. The mother admitted that an inappropriate relationship occurred, but denied knowing about it. The parties disagreed about most of the other allegations. The mother specifically objected to the court's failure to hold a hearing, and the court lacked record information that would permit it to determine whether the alleged change in circumstances required a modification of the prior custody order .A court may not grant a final order based upon mere allegations and a request by an attorney for a party or the children; evidentiary proof is required. Thus, it reversed the order on the law and remitted for Family Court to hold a hearing on the petition.
The Appellate Division observed that Family Court and the parties inaccurately referred to the in camera interviews with the children as a Lincoln hearing. The purpose of a Lincoln hearing in a custody proceeding "is to corroborate information acquired through testimonial or documentary evidence adduced during the fact-finding hearing" (Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 273 [1969] ). Thus, a true Lincoln hearing is held after, or during, a fact-finding hearing; there is no authority or legitimate purpose for courts to conduct such interviews in place of fact-finding hearings, and Family Court erred in doing so here. Additionally, it cautioned the court to protect the children's right to confidentiality by avoiding disclosure of what children reveal in camera during a custody proceeding.


Unsubstantiated Allegations Insufficient to Warrant the Invocation of Temporary Emergency Jurisdiction under UCCJEA.

In Segovia v Bushnell, --- N.Y.S.2d ----, 2011 WL 2150113 (N.Y.A.D. 3 Dept.) Respondent, the mother of two sons (born in 1999 and 2002), refused to release the children to the paternal grandparents for visitation and instead brought them to New York from Texas. A Texas court thereafter issued a temporary order granting custody to the father and petitioner, the paternal grandmother. Petitioner then commenced a proceeding seeking registration and enforcement of the Texas order ( Domestic Relations Law 77-d, 77-g). Respondent did not contest registration of the Texas order, but requested that Family Court exercise temporary emergency jurisdiction based on her allegations that the paternal grandparents had sexually abused the children (Domestic Relations Law 76-c). Family Court placed the children in the temporary custody of the Department of Social Services and ordered an investigation into respondent's allegations. Upon conclusion of the investigation, Family Court found the allegations to be unfounded and granted enforcement of the Texas order.
The Appellate Divison affirmed. Family Court heard, without objection, testimony that the children met with a local sexual abuse validator who determined that there was no sexual abuse, and it reviewed an investigative report prepared by authorities in Texas after respondent made the same allegations there. The Texas authorities conducted an exhaustive review and found no evidence to substantiate the allegations of sexual abuse. In light of the information rebutting respondent's claims, it agreed with Family Court that her unsubstantiated allegations were insufficient to warrant the invocation of temporary emergency jurisdiction.


The Rights and Needs of the Children Must Be Accorded the Greatest Weight in a Relocation Case

In Alaire K.G. v Anthony P.G.,--- N.Y.S.2d ----, 2011 WL 2135385 (N.Y.A.D. 1 Dept.) the First Department, in an opinion by Justice Moskowitz, observed that the appeal, involving a custodial parent's request to relocate with the parties' child, fell within the class of cases that "present some of the knottiest and most disturbing problems that our courts are called upon to resolve" (Matter of Tropea v. Tropea, 87 N.Y.2d 727, 736 [1996] ). The parties were married in January 2004, separated about a year and a half later and were divorced on July 13, 2006. They were the parents of a now six-year-old boy born on May 17, 2004. The stipulation settling the divorce case granted the mother legal and physical custody of the child. The father had visitation every week from Monday at 8:00 p.m. until Wednesday at 6:00 p.m. The stipulation allowed relocation within 25-miles of the father's house in the Bronx.
The father had a history of irregular employment and was currently not employed. At the time of trial, the mother, who was remarried, cared for her younger child from her second marriage, full time. After the parties separated, the mother remained in the marital apartment in the Bronx with the child for two years. In the fall of 2007, she began working as a project administrator in the construction field. In 2007, she moved with the child and her boyfriend to Connecticut. The mother testified that she always wanted her son to be in a suburban environment. She stated that she was trying "to mirror my own childhood. I had a wonderful suburban upbringing." The relationship in Connecticut ended when the boyfriend returned to his native New Zealand. The mother returned to New York with the child and moved into an apartment in Harlem. In March 2008, the mother met her future husband, Hugh Bonnar, on Match.com. Bonnar was retired from the Air Force, lived in North Carolina and was then involved in a nation-wide job search. Ultimately, Bonnar took a job with Northrop Grumman in San Diego. He had requested to work at Northrop Grumman's Long Island branch, but the company could not accommodate his request. The mother and Bonnar became engaged in May 2008. Soon after her engagement, the mother approached the father about moving to California to live with Bonnar. The father was concerned about the distance and the stability of the mother's new relationship. The parties therefore met with a mediator to try to work out an arrangement by which the mother could leave the child with the father temporarily while she settled in California. The mediator sent a letter, dated May 12, 2008, that purported to memorialize the parties' agreement. The letter stated that the parties agreed that the child would stay with the father from June 27, 2008 until December 31, 2008, with the mother making several long weekend visits to New York. Mother and son were also to participate in a webcam phone call two to three times a week. The letter did not address where the child would live after December 31, 2008. However, the father refused to sign an agreement embodying these terms and instead asked the mother to sign over custody to him. She refused. The mother left for California on June 26, 2008. She claimed that she never intended the father to have permanent custody, but arrangements to move to California had become irreversible by the time she learned that the father did not agree. The mother gave birth to Bonnar's son on April 4, 2009. She and Bonnar were also married in April 2009.
On July 17, 2008, the father filed a petition seeking sole legal and physical custody of the parties' child, claiming that the mother had abandoned the child. On December 1, 2008, the mother filed a petition for relocation.
Justice Moskowitz pointed out that each relocation request must be considered on its own merits with due consideration of all relevant facts and circumstances and with the predominant emphasis being placed on what outcome is most likely to serve the best interests of the child" (citing Tropea v. Tropea 87 N.Y.2d 727, 739 [1996] ). The dissent stated that Tropea dictates that the court's "central concern" should be the impact of the move on the relationship between the child and the noncustodial parent. Justice Moskowitz held that this interpretation misreads the case. Tropea states that "[o]f course, the impact of the move on the relationship between the child and the noncustodial parent will remain a central concern." However, it is not "the" central concern. Rather, the case makes abundantly clear that "it is the rights and needs of the children that must be accorded the greatest weight". She noted that the Court of Appeals rejected the "three-tiered" analysis that required a court to determine first "whether the proposed relocation would deprive the noncustodial parent of regular and meaningful access to the child".
The court found that there was a sound and substantial basis in the record for the determination granting the mother's request to relocate to California with her son. First, there was no question that the California home was financially more stable than the father's home. The stepfather had a steady job with Northrop Grumman that provided his family with health insurance. By contrast, the father was not currently working. Although he had been offered a job as a teacher's aide, he had postponed his start date. He was currently on some type of public assistance and received money from his parents in Ireland. He admitted that "it's not been easy like money wise." He was not currently in a relationship. Given his bleak financial circumstances, with no career or family in New York, it appeared that there was nothing keeping the father from moving to San Diego himself to be closer to his son. The Court quoted that part of Tropea, 87 N.Y.2d at 740 which said"where the custodial parent's reasons for moving are deemed valid and sound, the court in a proper case might consider the possibility and feasibility of a parallel move by an involved and committed noncustodial parent as an alternative to restricting a custodial parent's mobility". Further, living in San Diego ensured that the child would grow up in the same house as his half brother. The father agreed that it was very important for the child to have a brother in his life. He even testified that he actually expected the child eventually to move to California so that he could be with his brother, the father was merely opposed to the date of the move. The mother established that the child would have access to an education that was just as good as, if not better than, his school in New York. Moreover, she testified that Bonnar's status as a veteran would allow the child to attend college within the State of California's university system free of charge. The record also reflected that the mother went out of her way to facilitate communication between the child and his father. The same could not be said of the father with respect to communication between the child and his mother. Finally, the child's own attorney recommended that the court permit the mother to relocate with the child, a factor that militated in favor of affirming the result the court reached.
Justice Moskowitz commented that the dissent's characterization of the mother as putting her own romantic interests ahead of her son's welfare was rank speculation. It was just as likely that the mother, herself an only child, was pursuing marriage aggressively to produce a sibling for her son, before he became much older, and an intact family. Regardless of the mother's motivations, it is the best interest of the child that must guide the decision.
The Court found that the visitation schedule, that required the mother to pay for air travel for the child to be with the father on numerous extended weekend visits throughout the year in addition to extended summer and holiday visits, did not deprive the father of the opportunity to maintain a close relationship with his son .


Memorandum of Understanding Was Not a Final Agreement Even Thought it Contemplated Parties' Subsequent Execution of "Opting-out Agreement”

In Vega v Papaleo, --- N.Y.S.2d ----, 2011 WL 2224860 (N.Y.A.D. 3 Dept.) Plaintiff commenced the action for divorce in 2006 on the ground of cruel and inhuman treatment. In 2008, after engaging in protracted litigation and settlement negotiations, the parties, both of whom were represented by counsel, signed a memorandum of understanding (MOU) that provided for distribution of the parties' marital assets. Plaintiff's attorney then notified Supreme Court that the matter had been resolved and the case, which had been scheduled for trial, was removed from the trial calendar. Thereafter, plaintiff was presented with a settlement agreement but refused to sign it. Plaintiff subsequently retained new counsel and the matter was restored to the trial calendar. After several pretrial conferences, Supreme Court granted a motion by defendant for summary judgment, seeking a judgment granting plaintiff a divorce and incorporating, but not merging, the terms of the MOU into the judgment of divorce. A judgment of divorce was entered accordingly, prompting this appeal by plaintiff.
On appeal Plaintiff argued that the MOU was not an enforceable agreement and that, even if it is enforceable, it should be set aside on the basis that her attorney fraudulently induced her to sign the document by misrepresenting its legal significance. The Appellate Division affirmed. It found that as the movant for summary judgment, defendant met his initial burden of demonstrating that the MOU was an enforceable agreement under Domestic Relations Law 236(B)(3), as the document, itself was in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded" (Domestic Relations Law 236[B] [3]; see CPLR 2104). Plaintiff conceded that the MOU met the statutory requirements. Her argument that it was not enforceable because it was not "endorsed" in open court was unavailing, as there is no requirement that a properly executed written settlement agreement be so endorsed Thus, the burden shifted to plaintiff to demonstrate by the proffer of admissible evidence the existence of material issues of fact requiring a trial. To that end, plaintiff submitted her own affidavit, and the affirmations of her current attorney and a friend who accompanied her to her then attorney's office on the day she signed the MOU. According to those submissions, plaintiff did not wish to sign the MOU because it did not address certain assets, but she ultimately signed it based upon her then attorney's assurances that those issues could be raised at a later time. Plaintiff alleges that she would not have signed the MOU if she had known that it would be considered a final agreement. As to the merits, plaintiff had not alleged that defendant, or anyone acting on defendant's behalf, perpetrated any fraud or duress upon her. While plaintiff may have other remedies available to her, her allegations--relating solely to her attorney's conduct–were insufficient to set aside the MOU.
The Appellate Division also rejected plaintiff's argument that the MOU was not a final agreement because it contemplated the parties' subsequent execution of an "opting-out agreement." The MOU provided that it "will be incorporated into a full opting-out agreement to be signed by the parties containing these terms and only those other terms which are necessary to have a full and complete opting-out agreement, but due to the time constraints, [the parties] may not have the ability to finalize an opting-out agreement prior to the date scheduled for trial." The MOU then goes on to address, in detail, numerous issues including, among other things, a division of various items of real property, business interests, bank accounts, retirement accounts, marital debt and maintenance payments. It also contained a provision that "any additional terms and agreements to be contained within the opting-out agreement shall not alter or change any of the terms or conditions set forth in this [MOU]." Although the MOU directed entry into a further agreement, its terms were not contingent upon entry into such agreement. Accordingly, plaintiff failed to raise a question of fact sufficient to defeat defendant's motion.


Second Department Holds That 529 Plan College Fund Is Not a Bank Account under Stipulation for Divison of Assets

In Zuchowski v Zuchowski, --- N.Y.S.2d ----, 2011 WL 2279060 (N.Y.A.D. 2 Dept.) the parties 2009 stipulation of settlement, which was incorporated but did not merge into their judgment of divorce that was entered on June 17, 2009 provided that "all joint bank accounts have been split to the mutual satisfaction of the parties and here and forward each party shall keep any bank accounts in their respective names; namely, the wife in her name, the husband in his name." The stipulation also provided that "each party is responsible to pay the 50/50 share of college" for their children, but "the children shall avail themselves of every possible loan, grant or any other moneys offered to them by the college before the parties are respectfully [sic] required to contribute towards the education of the children." In an order dated January 11, 2010, the Supreme Court granted the defendant former husband's motion which was, in effect, to direct the plaintiff former wife to provide him with quarterly statements relating to a "529 Plan" sponsored by the State of New Hampshire and managed by Fidelity Investments, which the parties had established as a college fund for their son Peter, and to apply the money in the subject account to Peter's college expenses before either party would be required to contribute to such expenses. The former wife moved for leave to reargue, contending that since the 529 Plan was in her name, it was, under the terms of the stipulation of settlement, separate property belonging to her, and thus should be applied to reduce only her share of Peter's college costs. The account statements named the former wife as the "participant" and Peter as the "beneficiary," and the record indicated that the participant is considered to be the owner of the account assets until they are withdrawn. Supreme Court granted the former wife's motion and, upon reargument, vacated the portion of its January 11, 2010, order relating to the 529 Plan.
The Appellate Divison reversed on the law. It observed that when interpreting a contract, the court should arrive at a construction which will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized. Contrary to the former wife's contention, the stipulation of settlement could not reasonably be interpreted as treating the 529 Plan as one of the "bank accounts" that the party named as the account holder was entitled to "keep." While the stipulation of settlement provided that "all joint bank accounts have been split to the mutual satisfaction of the parties," there was nothing in the stipulation to support a finding that the parties intended the monetary assets they were allocating between themselves to include Peter's college fund. Although the former wife was technically the owner of the funds in the 529 Plan, the reason for that account's existence was not to personally benefit either of the parties, but to fund Peter's college education. Accordingly, upon reargument, the Supreme Court should have adhered to its original determination directing the former wife to provide the former husband with quarterly statements relating to the 529 Plan, and to apply the money in that account to Peter's college expenses before either party would be required to contribute to such expenses.


Failure to Agree on a Modified Visitation Schedule Is Not a "Default” for Purposes of Attorneys Fee Provision

In Matter of Allegretti v Fitzpatrick, --- N.Y.S.2d ----, 2011 WL 2279571 (N.Y.A.D. 2 Dept.) the Appellate Division held that the Family Court did not err in denying her motion for an award of an attorney's fee in connection with her petition to modify the visitation provisions set forth in a stipulation that was incorporated but not merged into the parties' judgment of divorce. The stipulation provided, among other things, that the parties were to "re-evaluate" the established visitation arrangements when their child began school. The stipulation also provided that in the event that either party defaulted with respect to their obligations thereunder, that party would be responsible for paying the attorney's fee incurred by the other party in an enforcement proceeding. The Family Court correctly concluded that the parties' failure to agree on a modified visitation schedule once their child began school did not constitute a "default" under the terms of the stipulation. Accordingly, the Family Court properly denied the mother's motion for an award of an attorney's fee.