Important New Decisions - September 23, 2011

Policy of Broad Pretrial Disclosure Regarding Corporate Interests

In Jaffe v Jaffe, --- N.Y.S.2d ----, 2011 WL 4089440 (N.Y.A.D. 1 Dept.) defendant served 37 nonparty subpoenas on the business office maintained by plaintiff's father. Each subpoena was addressed to a different entity closely held by, or affiliated with, plaintiff's family, which had many real estate holdings. Plaintiff acknowledged that, before the marriage, she had minority interests in many of the entities and that during the marriage she transferred the interests in those companies to a single holding company in exchange for a 25% interest in the holding company. Unlike two of her siblings, plaintiff was given no current or future managerial authority in the holding company. Defendant also addressed subpoenas to SC Management, the company that managed the real estate holdings of the various LLC's. Plaintiff claimed to have no interest in SC Management or six other entities that received subpoenas. In addition to the entities affiliated with plaintiff's family, defendant served a subpoena on Bank of New York Mellon, seeking documents related to accounts maintained there by all of the entities in which plaintiff held an interest, as well as SC Management and the six other entities in which plaintiff denied having any interest. The subpoenas addressed to the entities in which plaintiff had transferred her interest to the holding company differed from each other in some respects, but they uniformally sought financial statements; tax returns; detailed fixed asset registers and depreciation schedules for all assets held; building permits filed between 1996 and 2000; rent rolls identifying all tenants, their apartment numbers, their leases, the square footage of their apartment, and a calculation of their rent per square foot; documents reflecting "in kind" payments or barter transactions with any entity owned by the Hakim Organization, or with any employee, partner or shareholder of such entity; board meeting or other entity meeting minutes; business plans and projections; 1099's with copies of cancelled checks; ownership, operating, management, or subscription agreements; agreements of understanding signed by plaintiff; ownership schedules and stock transfer ledgers, including copies of front and back of all shares issued; copies of credit applications made to a bank or to other creditors; and outside accountants' working paper files and business evaluations or real estate appraisals conducted during the marriage.
Plaintiff moved to quash the subpoenas. She argued that the subpoenas were duplicative of discovery demands defendant had served on her directly (to which she also objected), and that they were intended solely to harass her parents. Plaintiff asserted, the subpoenas were served on the eve of Rosh Hashanah and immediately after defendant threatened to establish that plaintiff's parents were tax evaders. She further contended that, to the extent she had interests in the entities to which the subpoenas were addressed, it was separate property and had no bearing on the distribution of the parties' marital assets. She claimed to have no active role in the companies that would have caused any appreciation in their value to become marital property. In opposition to the motion, defendant argued that the documents and information sought by the subpoenas were necessary to determine whether a portion of plaintiff's family assets is marital property and because the documents bear on maintenance and child support. Pointing to documents he had already discovered during the litigation, defendant submitted that "[m]onies flow[ed] freely" among the subpoenaed entities and that plaintiff was active in the management and development of her family's real estate holdings. Defendant further asserted that the subpoenaed entities regularly made loans to various management companies controlled by the family, particularly SC Management, and used the management companies to pay for family members' personal expenses. Defendant stated that the discovery he sought was relevant to the issue whether plaintiff's actions caused appreciation to the separate property which should then be included in the marital estate. He also argued that, even if plaintiff's interests in the entities were non-marital, they were still relevant under Domestic Relations Law s 236(5)(d)(9), which requires the court, in determining equitable distribution, to consider "the probable future financial circumstances of each party ." The court granted the motion in part and denied it in part. It held that nonparty discovery was appropriate as to those entities in which plaintiff conceded having interest. However, it quashed the subpoenas for all companies in which plaintiff claimed to have no ownership interest, except for SC Management. The court found that there was evidence, such as checks payable to plaintiff, that "raise[d] the possibility" that plaintiff received compensation for work she performed for that company. The court did not expressly address the subpoena served on Bank of New York.
The Appellate Division observed that in a divorce action, "[b]road pretrial disclosure which enables both spouses to obtain necessary information regarding the value and nature of the marital assets is critical if the trial court is to properly distribute the marital assets" (Kaye v. Kaye, 102 A.D.2d 682, 686 [1984] ). In Kaye, the court denied the husband's motion for a protective order preventing discovery into four closely held family corporations in which he held minority interests, observing, "[I]t has been held that both parties in a matrimonial action governed by the Equitable Distribution Law are now entitled to: a searching exploration of each other's assets and dealings at the time of and during the marriage, so as to delineate the extent of marital property, distinguish it from separate property, uncover hidden assets of marital property, discover possible waste of marital property, and in general gain any information which may bear on the issue of equitable distribution, as well as maintenance and child support. The entire financial history of the marriage must be open for inspection by both parties". Pursuant to this rule of liberal discovery in matrimonial litigation, defendant was entitled to records of the entities in which plaintiff had an interest, so that he may determine whether her interests have a bearing on the distribution of the marital estate as well as support obligations. However, it found that find that defendant had failed to establish that plaintiff had any interest in SC management, so the subpoena served on that entity should have been quashed. Further, to the extent the subpoena served on Bank of New York Mellon sought records related to El-Kam Realty, Aval Company, Old Salem Farm Acquisition Corporation and Affiliates, Enterprise Products Partners, LP Nantucket Campfire, LLC, and Bedford Entities, the bank need not comply. Defendant also failed to demonstrate any affiliation between plaintiff and those entities. The bank was required, however, to divulge information related to the companies in which plaintiff had conceded having an interest. While the entities were not immune from discovery in this action, the Appellae Division held that the subpoenas were overbroad in many respects. For example, the subpoenas included a demand to provide the names and addresses of all commercial and residential tenants, with copies of every lease, and all building permits filed for any building, including construction and renovations for every building plaintiff's family owned, over a 15-year period of time. This information appeared to be of dubious relevance. Accordingly, it remitted the matter and held that the motion court must reconsider plaintiff's motion to determine whether the particular demands annexed to the subpoenas were sufficiently tailored to the financial issues in the action, and whether it would be unduly burdensome for the entities to respond.

Father Did Not Implicitly Consent Referee by Merely Participating in Custody Proceeding. Referee Had No Jurisdiction.

In Gale v Gale, --- N.Y.S.2d ----, 2011 WL 4090031 (N.Y.A.D. 2 Dept.) the Appellate Divison reversed on the law and remitted for a new hearing, an order of the Family Court which, after a hearing, granted the mother's petition to modify the custody provisions of a judgment of divorce so as to award her sole custody of the parties' children, and denied the fathers petitions for sole custody of the children. It pointed out that a referee derives authority from an order of reference by the court (see CPLR 4311), which can be made only upon the consent of the parties, except in limited circumstances not applicable here. It found that the parties did not stipulate to a reference in the manner prescribed by CPLR 2104. In any event, there was no indication that there was an order of reference designating the referee who heard and determined the petitions at issue here. It observed that that contrary to the mother's contention, the father did not implicitly consent to the reference merely by participating in the proceeding without expressing his desire to have the matter tried before a judge (see McCormack v. McCormack, 174 A.D.2d at 613). The Court held that “...to the extent that certain dicta in Chalu v. Tov-Le Realty Corp. (220 A.D.2d 552, 553) may suggest a different conclusion, it is not to be followed.” Furthermore, a stipulation consenting to a reference to a specified referee, executed by the parties in connection with the father's previous petition to modify the visitation schedule, expired upon completion of that matter and did not remain in effect for this matter. Accordingly, the referee had no jurisdiction to consider the father's petitions related to custody and visitation and the mother's petition to modify custody, and the referee's order determining those petitions had to be reversed.

Mootness Doctrine Explained in Opinion Dismissing Visitation Appeal as Academic

In Matter of Cissee v Graham, --- N.Y.S.2d ----, 2011 WL 4090037 (N.Y.A.D. 2 Dept.), the mother, who was Muslim, and the father, who was Roman Catholic, had one child together, a daughter born on March 24, 2001. In an order dated June 30, 2004 Family Court awarded custody of the child to the mother and visitation to the father, with such visitation to occur pursuant to a stipulation signed by the parties. In a separate order, also dated June 30, 2004, made pursuant to the aforementioned stipulation, the Family Court provided, among other things, that the child was "to be exposed to the Catholic traditions and Muslim traditions." In an order dated August 31, 2005, the parties stipulated to the father having additional visitation time in 2005. Subsequently, the mother filed a petition, in effect, to modify the visitation provisions of the aforementioned orders and the father filed a petition to modify the custody order by awarding him custody of the child. During the pendency of those proceedings, the Family Court issued an order dated August 7, 2009, which modified the June 30, 2004, order made upon the parties' stipulation by directing that "either or both parents may enroll the child in religious instruction in their faith." When the parties appeared before the Family Court on March 15, 2010, for a continued hearing on the petitions, the father, through counsel, requested a temporary change in the visitation schedule to allow the child, in May 2010, to attend rehearsal for her first communion, the ceremony for her first communion at the father's Roman Catholic church, and any associated celebrations. Despite the mother's objection, in an order dated March 18, 2010, the Family Court granted the father's application. The Appellate Division dismissed the mothers appeal as academic. It observed that it is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal (Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 713). In general an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment. Contrary to the opinion of the dissent, the rights of the parties would not be directly affected by a determination of this appeal because the events associated with the temporary modification of the father's visitation schedule had already occurred, as conceded by the mother in her brief. Accordingly, the appeal was moot and could not properly be decided by the Court unless the exception to the mootness doctrine applied. The exception to the mootness doctrine occurs where the controversy or issue involved is "likely to recur, typically evades review, and raises a substantial and novel question" (Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 811). Here, no exception to the mootness doctrine was argued or present, and the courts are prohibited from rendering purely advisory opinions absent an exception to the mootness doctrine. Justice Hall dissented and voted to decide the appeal on the merits.

Proper to Direct Disclosure Pertaining to the Retirement Benefits and Stock Options Obtained from Alleged New Business Acquired after the Marriage And/or from New Employment Entered into after the Marriage.

In Manditch v Manditch, --- N.Y.S.2d ----, 2011 WL 4090214 (N.Y.A.D. 2 Dept.) in an order dated April 15, 2010, the Supreme Court granted defendant's cross motion to compel the plaintiff to comply with discovery demands to the extent of directing the plaintiff to provide disclosure regarding an alleged new business acquired after the marriage. After receiving a request from the defendant's attorney to clarify the scope of the required disclosure and conducting a conference with the attorneys for both parties, the Supreme Court issued an amended order on June 2, 2010. The amended order clarified that the defendant was entitled to disclosure relating to the alleged new business acquired by the plaintiff after the marriage and/or to new employment entered into after the marriage, as well as retirement benefits and stock options arising out of such new business or new employment, since these retirement benefits and stock options could potentially be marital property under the terms of the parties' prenuptial agreement. The plaintiff subsequently moved to vacate so much of the amended order as directed him to disclose information relating to the retirement benefits and stock options obtained by him from the alleged new business and/or from new employment. Supreme Court denied the plaintiff's motion, and the Appellate Division affirmed. It held that Supreme Court providently exercised its discretion in issuing an amended order to clarify the scope of disclosure intended by its prior order dated April 15, 2010. Supreme Court properly directed the plaintiff to provide disclosure pertaining to the retirement benefits and stock options obtained by him from the alleged new business acquired after the marriage and/or from new employment entered into after the marriage. Broad pretrial disclosure enabling both spouses to obtain necessary information regarding the value and nature of the martial assets is deemed critical if the trial court is to properly distribute the marital assets. Moreover, the disclosure sought by the defendant was "material and necessary".

Liability for the Payment of Marital Debt May Be Distributed in Accordance with the Equitable Distribution Factors

In DiFiore v DiFiore,--- N.Y.S.2d ----, 2011 WL 4090241 (N.Y.A.D. 2 Dept.) the Appellate Division observed that the Supreme Court has broad discretion in allocating marital debt. In addition, "liability for the payment of marital debt[ ] need not be equally apportioned but may be distributed in accordance with the [equitable distribution] factors set forth in Domestic Relations Law 236(B)(5)(d)" (Lewis v. Lewis, 6 AD3d 837, 839-840). It agreed with the husband's contention that the remaining balance of a loan from his father to the parties toward the purchase of an apartment building should be repaid out of the wife's share of the proceeds of the sale of the apartment building in the principal amount of $48,388.99, plus 5% monthly interest from April 1, 2008, to the date of payment. Pursuant to the pendente lite order dated April 2, 2004, the wife was to receive the rental income from the apartment building, and pay the loan from these proceeds. She failed to do so. The prior decision and order of the Court dated June 7, 2011 (DiFiore v DiFiore, 85 AD3d 714), was recalled and vacated.

Dismissal of Counterclaims for Partition and Recoupment Warranted Pursuant to Cplr 3211(a)(4) Because There Was Already an Action Pending Between the Parties That Sought, in Essence, the Same Relief.

In L.L. v B.H.,--- N.Y.S.2d ----, 2011 WL 4007741 (N.Y.Sup.) the parties and their son resided together at XXX Ascan Road, Franklin Square, New York. The residence was purchased for $178,000.00 on November 13, 1991, thirty (30) days prior to the parties marriage. Title was in the names of the husband and wife, as joint tenants with rights of survivorship. There appeared to be no mortgages on the residence. The wife moved to dismiss the husbands counterclaims for partition and recoupment. In support of the motion, counsel for the wife alleged, among other things, that because disposition of the marital residence was an issue to be decided in the matrimonial action as part of equitable distribution, actions for partition and recoupment were improper as they sought to divest the court of its right to determine equitable distribution of the assets and obligations of the parties and exclusive occupancy of said residence. Counsel for the wife argued that this matrimonial action is regulated by Domestic Relations Law (DRL) 236(B)(5), and not Real Property Actions and Proceedings Law (RPAPL) 901 which permits partition, and that partition and recoupment are not cognizable legal theories in the context of a division of property between divorcing parties. In opposition to the motion, counsel for the husband alleged, among other thing, that the counterclaims for partition and recoupment statef legally cognizable causes of action and that the existence of a matrimonial action did not bar the husband from commencing an action for partition and recoupment.
Justice Falanga framed the issue presented as whether the husband was barred from bringing counterclaims for partition and recoupment when a matrimonial action has been commenced, in which equitable distribution of the marital residence is being sought as well as possible exclusive occupancy of same and a division of all other assets and obligations of the parties. He observed that in the case at bar, the parties acquired title to the property before they were married, as joint tenants with rights of survivorship, and their marriage did not transform the joint tenancy into one by the entirety, which could be created only by a conveyance to a husband and a wife. As such, the marital residence was not "marital property" subject to equitable distribution, as the residence constituted separate property of each of the parties acquired prior to the marriage. In Novak v Novak, 135 Misc.2d 909, 516 N.Y.S.2d 878 [Sup. Dutchess Co.1987] ) the court was faced with the same issue. The Novaks acquired a home as joint tenants ten (10) days before their marriage but they cohabited for only 2 1/2 months before the action for divorce was commenced. The court there rejected the wife's argument that the joint tenancy created an undivided one-half interest in each party and that said interests were not subject to equitable distribution. The court found that the property was not subject to equitable distribution because it was acquired prior to the marriage and because there could be little or no passive appreciation due to the briefness of the marriage, The Novak court allowed a claim for partition to stand because substantial improvements had been made to the residence and the equities of the parties had changed with the contributions that each had made to the improvements. The Novak court found that, within the partition action, it was authorized to adjust all the equities arising out of the parties' relationship with respect to the property to be divided and, found that partition gave the court more flexibility to do equity than DRL 236 (B), given the unique circumstances of that case. In contrast, in the case at bar, the parties had been married and had resided in the subject residence for nearly twenty (20) years and raised their son there since he was born. Case law interpretation of DRL 236(B) had evolved since Novak to take into account the appreciation of separate property from the active contributions of the parties to the marriage, as spouse, parent, wage earner or homemaker.
It was the court's view that, in a matrimonial action, Domestic Relations Law 234 gives to the court broad authority to determine issues that arise between the parties with respect to title and possession of property and, when read in conjunction with DRL 236(B), which authorizes the court to distribute marital and separate property and to adjust debits and credits between the parties as equity would find just and proper given the circumstances of the case, each of the parties have sufficient remedies in the instant matrimonial action so that references to separate causes of action for partition and recoupment were duplicative and unwarranted. Neither party would receive any lesser or greater relief from a separate cause of action for partition or recoupment, when all of the relief that may be had in said actions were within the power of the court in the existing statutory scheme (cf., Chen v. Fischer, 6 N.Y.3d 94, 810 N.Y.S.2d 96, 843 N.E.2d 723 [C.A.2005]; Boronow v. Boronow, 71 N.Y.2d 284, 525 N.Y.S.2d 179, 519 N.E.2d 1375 [C.A.1988] ). The matrimonial forum is a convenient forum for transactions between these parties relating to pre-marital and post-marital property claims and form a convenient trial unit for the purposes of this litigation. (see, Chen v. Fischer, supra.) The court was unconvinced that the husband could obtain any relief in a partition or recoupment action that was different from what the court does in every case involving the equitable disposition and possession of property, some of which may be separate, and the distribution of assets and debts. It was the court's view that dismissal of the counterclaims was warranted, pursuant to CPLR 3211(a)(4), because there was already an action pending between the parties that sought, in essence, the same relief. The court found as a matter of law, that the partition and recoupment action were unwarranted and that the rights and remedies of the parties could be decided and granted in the matrimonial action. (cf. Boronow v. Boronow, supra.) As partition is an equitable remedy, a 50/50 split of the equity in the residence was not mandated, for the court may partition the property unevenly, in accordance with the contributions of the parties. That is the same exact remedy that is available in the matrimonial action and the court found that the issues raised in the counterclaims were subsumed into the matrimonial action where the court is given statutory powers to do equity. The court found the previous lower court cases holding to the contrary to be unpersuasive under the facts of this case. It was the court's view that, even when a property is acquired prior to the marriage and title is in both names of the parties, the matrimonial court has jurisdiction and authority to prevent unjust enrichment to either party. The wife's motion for an order dismissing the husband's counterclaims for partition and recoupment was granted and the counterclaims were dismissed.

CPLR Amendments of Interest to Matrimonial Attorneys - September 21, 2011

Laws of 2011, Ch 473 , §1, amended CPLR 306-b, effective January 1, 2012, to provide that service be made within 120 days "after commencement of the action or proceeding." CPLR 306-b formerly required service of the summons and complaint, summons with notice, third-party summons and complaint, petition with notice of petition or order to show cause within 120 days after filing, with appropriate modifications where the statute of limitations is four months or less.

CPLR 306-b now provides:

§ 306-b. Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause. Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause shall be made within one hundred twenty days after the commencement of the action or proceeding, provided that in an action or proceeding, except a proceeding commenced under the election law, wherethe applicable statute of limitations is four months or less, service shall be made not later than fifteen days after the date on which the applicable statute of limitations expires. If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service.

Laws of 2011, Ch 473 , §2, amended CPLR 2101(f), effective January 1, 2012, to increase the time for raising objections to defects in form of a paper. The time in which an objection to a defect in form must be raised has been two days from receipt of the paper objected to. The period of time was amended from "two" to "fifteen" days.

CPLR 2101(f) now provides:

(f) Defects in form; waiver. A defect in the form of a paper, if a substantial right of a party is not prejudiced, shall be disregarded by the court, and leave to correct shall be freely given. The party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within fifteen days after the receipt thereof, the party on whom the paper is served returns the paper to the party serving it with a statement of particular objections.

Laws of 2011, Ch 473 , §3, amended CPLR 3025(b), effective January 1, 2012 , to require a party moving to amend its pleadings to attach a copy of the proposed amended pleading to its motion to amend that pleading, clearly showing the proposed changes to the pleading.

CPLR 3025(b) now provides:

(b) Amendments and supplemental pleadings by leave. A party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading.

Laws of 2011, Ch 473 , §4, amended CPLR 3217(a)(1), effective January 1, 2012, to extend the time period in which, at the outset of a case, a voluntary discontinuance may be obtained without need for a court order or a stipulation of settlement. Formerly, a party alleging a cause of action in a complaint, counterclaim, cross-claim, or petition could only unilaterally discontinue it without court order or stipulation by serving and filing the requisite notice on all parties "at any time before a responsive pleading is served or within twenty days after service of the pleading asserting the claim, whichever is earlier..."CPLR 3217(a)(1). CPLR 3217(a)(1) was amended to permit a voluntary discontinuance without court order or stipulation before the responsive pleading is served or within 20 days after service of the pleading of the claim, whichever is later.

CPLR 3217(a)(1) now provides:

1. by serving upon all parties to the action a notice of discontinuance at any time before a responsive pleading is served or, if no responsive pleading is required, within twenty days after service of the leading asserting the claim and filing the notice with proof of service with the clerk of the court; or

Important New Decisions and Legislation- August 31, 2011

Domestic Relations Law § 240 (1-b) subdivisions (d) (g) and (i) and Family Court Act § 413 (1) subdivisions (d) (g) and (i) amended by Laws of 2011, Ch 436, effective November 15, 2011

In Rose v Moody, 83 NY2d 65 (1993) the Court of Appeals held Domestic Relations Law § 240 (1-b) and Family Court Act § 413 (1) unconstitutional insofar as they imposed an inflexible minimum child support obligation against support obligors whose income would, by virtue of the obligation, fall below the poverty level. The Court of Appeals held that that the irrebuttable presumption mandating that an indigent, non-custodial parent be ordered to pay a minimum of $25 per month in child support contravened the Federal Child Support Enforcement Act Social Security Act, Title IV-D §467(b)(2), as amended, 42 USCA §667(b)(2), thus violating the constitutional principle of Federal preemption. While the effect of the Court's ruling has been to require that support obligors be permitted to rebut the presumption in favor of a minimum obligation of $25 per month, the statutory language had not been conformed accordingly. Additionally, in cases where the basic child support obligation would reduce the non-custodial parent's income to a level below the self-support reserve, but not below the poverty level, both subdivisions provide alternative standards for determining child support, that is, the greater of $50 per month or the difference between the non-custodial parents' income and the self-support reserve. However, both statutes are silent regarding whether separate amounts may also be ordered in such cases for child care, future medical and educational expenses, in accordance with subparagraphs four, five, six and seven of paragraph (c) of both subdivision one of section 413 of the Family Court Act and subdivision (1-b) of section 240 of the Domestic Relations Law. Several cases have, therefore, disallowed the inclusion of any of these expenses as part of the child support order in such circumstances. See Callen v Callen, 287 AD2d 818 ( 3rd Dept 2001); In Re Rhianna R., 256 AD2d 1184 (4th Dept 1998) (citing Matter of Cary)(Mahady) v Megrell, 219 AD2d 334 (3rd Dept 1996), Iv App Dismissed, 88 NY2d 1065 1996); Dunbar v. Dunbar, 233 AD2d 922 ( 4th Dept 1996.) (See NY Legis Memo 436 (2011).

Domestic Relations Law § 240 (1-b) and Family Court Act § 413 (1) were amended by Laws of 2011, Ch 436 to correct these anomalies and to codify the decision in Rose v Moody.

The amendments make the presumption in favor of a minimum order of $25 per month rebuttable by a showing that such an order would be unjust or inappropriate, based upon the ten factors applicable to departures from the child support standards set forth in Domestic Relations Law §240(1-b)(f); Family Court Act 413(1)(f). Family Court and Supreme Court are authorized to order payment of an amount it deems to be just and appropriate. The amendment eliminates the proviso that " in no instance shall the court order child support below $25 per month." The amendment also clarifies that in cases where imposition of the basic child support obligation would reduce the non-custodial parent's income to an amount below the self-support reserve, but not the poverty level, the Court would be authorized, although not required, to direct payments for child care, educational and health care expenses, as part of its child support order.

Domestic Relations Law § 240 (1-b), subdivisions (d) (g) and (i) were amended accordingly. In addition, subdivision (i) was amended to make technical corrections , including deleting “social services” and replacing it with “the office of temporary and disability assistance”.

Domestic Relations Law § 240 (1-b), paragraphs (d), (g) and (i) were amended to read as follows:

(d) Notwithstanding the provisions of paragraph (c) of this subdivision, where the annual amount of the basic child support obligation would reduce the non-custodial parent's income below the poverty income guidelines amount for a single person as reported by the federal department of health and human services, the basic child support obligation shall be twenty-five dollars per month, provided, however, that if the court finds that such basic child support obligation is unjust or inappropriate, which finding shall be based upon considerations of the factors set forth in paragraph (f) of this subdivision, the court shall order the non-custodial parent to pay such amount of the child support as the court finds just and appropriate. Notwithstanding the provisions of paragraph (c) of this subdivision, where the annual amount of the basic child support obligation would reduce the non-custodial parent's income below the self-support reserve but not below the poverty income guidelines amount for a single person as reported by the federal department of health and human services, the basic child support obligation shall be fifty dollars per month or the difference between the non-custodial parent's income and the self-support reserve, whichever is greater, in addition to any amounts that the court may, in its discretion, order in accordance with subparagraphs four, five, six and/or seven of paragraph (c) of this subdivision.

(g) Where the court finds that the non-custodial parent's pro rata share of the basic child support obligation is unjust or inappropriate, the court shall order the non-custodial parent to pay such amount of child support as the court finds just and appropriate, and the court shall set forth, in a written order, the factors it considered; the amount of each party's pro rata share of the basic child support obligation; and the reasons that the court did not order the basic child support obligation. Such written order may not be waived by either party or counsel; provided, however, and notwithstanding any other provision of law, the court shall not find that the non-custodial parent's pro rata share of such obligation is unjust or inappropriate on the basis that such share exceeds the portion of a public assistance grant which is attributable to a child or children. Where the non-custodial parent's income is less than or equal to the poverty income guidelines amount for a single person as reported by the federal department of health and human services, unpaid child support arrears in excess of five hundred dollars shall not accrue.

(i) Where either or both parties are unrepresented, the court shall not enter an order or judgment other than a temporary order pursuant to section two hundred thirty-seven of this article, that includes a provision for child support unless the unrepresented party or parties have received a copy of the child support standards chart promulgated by the commissioner of the office of temporary and disability assistance pursuant to subdivision two of section one hundred eleven-i of the social services law. Where either party is in receipt of child support enforcement services through the local social services district, the local social services district child support enforcement unit shall advise such party of the amount derived from application of the child support percentage and that such amount serves as a starting point for the determination of the child support award, and shall provide such party with a copy of the child support standards chart. (Laws of 2011, Ch 436, §1, effective November 15, 2011)

Almost identical amendments were made to Family Court Act , § 413 (1), paragraphs (d), (g) and (i). (Laws of 2011, Ch 436, §2, effective November 15, 2011)

Second Department Holds That Counsel Fees May Be Requested under FCA 438 (a) At Any Time until the Appellate Process Has Concluded

In Talty v Talty--- N.Y.S.2d ----, 2011 WL 3715407 (N.Y.A.D. 2 Dept.), a support proceeding, the Appellate Division, Second Department reversed an order of the Family Court which had vacated a counsel fee award of $11,893.04 and reinstated the award. It observed that Family Court Act § 438(a) provides: "[i]n any proceeding under this article, including proceedings for support of a spouse and children, or for support of children only, or at any hearing to modify or enforce an order entered in that proceeding or a proceeding to modify a decree of divorce, separation, or annulment, including an appeal under article eleven, the court may allow counsel fees at any stage of the proceeding, to the attorney representing the spouse, former spouse or person on behalf of children." It construed the language "[i]n any proceeding under this article" to include "an appeal under article eleven" , and held that the plain meaning of the statute supports the interpretation that a request for an attorney's fee can be made "at any stage of the proceeding," which includes "an appeal under article eleven". In this context, therefore, the "proceeding" does not conclude until the appellate process has concluded. The proceeding is terminated when an appeal has concluded and no more appellate relief is available, or when the time to file an appeal has expired. Applying this interpretation of the statute to the facts of this case, it held that the mother's motion for an award of an additional attorney's fee was timely, as the appellate process had not yet concluded at the time the motion was made. It further held that to the extent that any of its decisions suggested otherwise (citing Matter of McGrath v. Parker, 41 AD3d 852; Matter of Cassieri v. Cassieri, 31 A.D.2d 927, 298 N.Y.S.2d 844), they are no longer to be followed.


“Extraordinary Circumstances Analysis” must Consider "The Cumulative Effect" of All Issues Present in a Given Case and Not View Each Factor in Isolation. Custody Awarded to Non-biological Relative of Child Rather than Father

In Matter of Pettaway v Savage, --- N.Y.S.2d ----, 2011 WL 3611215 (N.Y.A.D. 3 Dept.), Eric Pettaway was the father of a daughter (born in 1997). In 2003, he and the child's mother, Denise Knight, now deceased, stipulated to joint legal custody of the child with primary physical custody to the mother and visitation to the father. The child resided with the mother and the child's two half siblings until the mother's death in June 2009, at which time the father commenced proceeding No. 1, seeking custody. In response, the attorney for the child moved by order to show cause for an award of sole legal and physical custody to William Savage II, also known as Eric Savage. Savage was not a biological relative of the child; he was the father of the child's older half sister and had fostered a close relationship with the child over the course of several years. Savage then commenced proceeding No. 2, also seeking custody of the child. Family Court found the existence of extraordinary circumstances sufficient to permit the court to intervene in the father's relationship with the child and then, further, that the child's best interests would be served by an award of sole custody to Savage. The father, was granted visitation on alternate weekends and such additional periods of time as the parties and the child may agree. The Appellate Division affirmed. It noted that extraordinary circumstances may not be established "merely by showing that the child has bonded psychologically with the nonparent". The extraordinary circumstances analysis must consider "the cumulative effect" of all issues present in a given case and not view each factor in isolation. In prior cases, extraordinary circumstances have been established based upon the combined effect of factors, including the child's psychological bonding and attachments, the prior disruption of the parent's custody, separation from siblings and potential harm to the child, as well as the parent's neglect or abdication of responsibilities and the child's poor relationship with the parent (see Matter of Banks v. Banks, 285 A.D.2d 686, 687 [2001] ). In Matter of Banks v. Bank, a case in which there were a number of significant similarities to this one, the children--at the time of their father's death--had already developed a bond with his second wife after living with the couple for approximately 30 months. The Appellate Division reversed Family Court's award of custody to the biological mother, citing as extraordinary circumstances the death of the father, the "poor relationship" between the children and the mother, bereavement needs and other special issues affecting one of the children and the mother's recent "withdrawal as a parent". Each and all of those factors were present here; as in Banks, one of the child's parents was deceased, the child had formed a strong psychological bond with a nonparent, the child had special needs in addition to psychological needs resulting from bereavement, and the parent seeking custody withdrew almost completely from the parental role for an extended period before the other parent's death. Here, Family Court found that, prior to the mother's death, the father failed to play any significant role in the child's life, visited inconsistently throughout the child's life, and failed to attend to the child's emotional needs. The court credited a psychologist's testimony and opinion that the father had emotionally abandoned the child by his neglect of her and had demonstrated a fundamental lack of understanding of her needs. These findings were fully supported by the record. Family Court's conclusion that the father abdicated his parental responsibilities was supported by the testimony of several witnesses that the father frequently missed scheduled visits with the child and often left the child with other adults even when he did pick her up for visits, and by undisputed testimony that the father did not attend the child's school conferences or special education meetings until after the mother's death, did not know her teachers' names and never helped her with homework, although he testified that he knew she needed special assistance. Even while this matter was pending, the father failed to appear for a scheduled meeting with the child's teacher and guidance counselor, for reasons unexplained. Testimony further revealed that the father had failed to provide for the child's basic needs during her time with him--he had not provided her with enough food during past visits, nor did he supply her with essentials such as soap or deodorant. When the child sustained an injury while performing physical work for the father's brother, neither the father nor his brother furnished appropriate medical care. There was further disturbing testimony--which Family Court found to be credible--that the father knew that his brother had "badgered" the child about her desire to live with Savage, and that the brother had threatened the child that his conduct should not be mentioned in court; despite this knowledge, the father did not intervene or seek to protect the child. Family Court also found that the period in which the father had custody of the child after the mother's death "did not go well," noting that during this vulnerable period, the child felt isolated from her other family contacts and had limited interaction with them--at a time when any responsible parent or caretaker should have readily recognized that such support was essential. The court had ample basis for doubting the father's testimony that he would not relocate with the child to New Jersey, where his new wife resided and owned a growing travel business, finding it instead "extremely unlikely" that the father would foster the close relationship between the child and her sister and "the others [who] have become her true family." The court further found that the father lacked credibility regarding his previous conviction for attempted rape in the third degree of a person under 17, and his failure to complete sex offender treatment thereafter.


Error to Allow Wife to Benefit from Her Failure to Comply with Discovery

In Cabral v Cabral, --- N.Y.S.2d ----, 2011 WL 3600503 (N.Y.A.D. 2 Dept.) the parties were married on January 24, 1980, and had three children, born in 1980, 1982, and 1989. During the marriage, the parties purchased the marital residence in Westchester County, as well as a vacation residence in the Dominican Republic. Beginning in 1983, the defendant was employed by Westchester County, in which position she received a salary and accrued pension benefits. In 1986, the plaintiff obtained an insurance license and opened an agency selling insurance policies and providing financial and other services. The plaintiff was incarcerated from 1991 to 1994 upon his conviction of felony drug charges, and his insurance license was revoked. The plaintiff testified at trial that prior to his incarceration, he liquidated a retirement benefit and used the proceeds to provide a source of income to the defendant and the parties' children. The defendant continued operation of the agency during the plaintiff's incarceration, and during that time federal tax liens were levied against the agency. The plaintiff also testified that after he was released from prison, the defendant refused to allow him to return to work at the agency in any capacity. Thereafter, the plaintiff did obtain full-time employment, albeit at an annual salary which was significantly less than what he earned as an insurance broker. In 2001, the plaintiff commenced this action for a divorce. Due to the defendant's failure to comply with pretrial discovery orders, she was precluded from offering evidence at trial on the issue of equitable distribution. Supreme Court equitably distributed marital property and awarded child support, and the wife appealed. The Appellate Division, 35 A.D.3d 779, 826 N.Y.S.2d 443, reversed and remitted. On remittal, the Supreme Court awarded child support arrears, awarded the husband no share of the wife's pension, directed that he be solely responsible for the federal tax lien assessed on parties' business, and directed him to pay child support. The husband appealed and the Appellate Division reversed insofar as appealed from and remitted. It held that Supreme Court erred in failing to include the defendant's income from the insurance agency in calculating her income or assets, thereby allowing her to benefit from her failure to comply with discovery and shielding her insofar as the income related to equitable distribution. The defendant's income was also improperly omitted in the calculation of child support and in the apportionment of the debt incurred by the parties' insurance agency. It found that Supreme Court should have included the defendant's pension benefits which accrued prior to the commencement date of the action in the equitable distribution of marital property. Finally, under the particular circumstances of this case, and in the absence of any evidence demonstrating that the plaintiff had the ability to earn a salary approaching his previous income, the Supreme Court improperly imputed annual income to him of $85,000 as part of its calculation of child support.

Inquest on Papers to Determine the Amount of Restitution Is Permitted Pursuant to Family Court Act 841(e)

In Polanco v Dilone,--- N.Y.S.2d ----, 2011 WL 3557068 (N.Y.Fam.Ct.) Petitioner moved for summary judgment on her petition for an order of protection based on Mr. Dilone's guilty plea in Bronx Criminal Court to assault in the 3rd degree. On December 2, 2010, the court granted the motion, and issued findings of fact and a 5 year order of protection. The court also directed an inquest on papers to determine the amount of restitution. It observed that pursuant to Family Court Act 841(e), restitution is an available remedy in this case. Petitioner submitted an affidavit, dated December 15, 2010, delineating her expenses: Travel by Subway to prosecute this case: $78.50 Destroyed toys, bottle of perfume and bouquet of flowers: $100 Certificate of disposition: $10. There was no evidence that respondent was ordered to pay restitution in the criminal action and thus this order was not duplicative. Respondent failed to file opposition which was due by January 21, 2011. The Family Court observed that under FCA 834, the standard of proof at a dispostional hearing is material and relevant. Petitioner submitted a receipt for the certificate of disposition which established the $10 expense. Petitioner's travel expenses were also sufficiently documented in that her appearances in court were in the court's file and would necessitate trips to meet with her attorney, the detective and District Attorney. Further, petitioner testified to injuries for which medical treatment was documented and thus those travel expenses were supported by the record as well. However, petitioner did not allege in the petition that she suffered property damage. Since petitioner moved for summary judgment based on the criminal proceedings, there was no testimony here about property damage. The criminal disposition was silent as to property damage as well. In addition, there was no documentary evidence for the $100 for destroyed property. Admittedly, $100 was an estimate for items of sentimental value. While the court is authorized to award nominal damages, it cannot award sentimental value. Furlan v. Rayan Phot Works, Inc., 171 Misc. 839 (Mun Ct, Queens County 1939). The court accepted petitioner's credible testimony that the intrinsic value of the toys, perfume, and flowers was $100. Victoria C v. Higinio C., 1 AD3d 173 (1st Dept 2003). However, petitioner was required to first plead and prove property damage before any damages could be awarded. Therefore, petitioner had established damages in the amount of $88.50. The court granted the petition for restitution and directed that petitioner shall have judgment for $88.50 with interest from September 24, 2009. The clerk was directed to enter judgment accordingly.

Important New Decisions - July 27, 2011

Third Department Holds That While Plaintiff Lacked a Remedy at Law, the Dissolution of a Civil Union Falls Squarely Within the Scope of Supreme Court's Broad Equity Jurisdiction

In Dickerson v Thompson, --- N.Y.S.2d ----, 2011 WL 2899241 (N.Y.A.D. 3 Dept.) Plaintiff and defendant, residents of New York, entered into a civil union in Vermont in April 2003. In November 2007, plaintiff, unable to obtain a dissolution of the civil union in Vermont due to that state's residency requirements commenced an action for equitable and declaratory relief seeking a judgment dissolving the civil union and freeing her of all the rights and responsibilities incident to that union. Upon defendant's
default, plaintiff moved for a judgment granting the requested relief. Supreme Court, sua sponte, dismissed the complaint for lack of subject matter jurisdiction. On appeal, the Appellate Division reversed and reinstated the complaint (73 A.D.3d 52 [2010] [ Dickerson I ] ), holding that the courts of this state may recognize the civil union status of the parties as a matter of comity and that Supreme Court is vested with subject matter jurisdiction to adjudicate the dispute. It did not, however, reach the issue as to what relief, if any, could ultimately be afforded to the parties on the merits. Upon remittal, Supreme Court granted plaintiff's motion seeking a declaration relieving the parties from all rights and obligations arising from the civil union, but denied that portion of the motion seeking a dissolution of the union. The Appellate Division modified, disagreeing with Supreme Court's conclusion that, in the absence of any
legislatively created mechanism in New York by which a court could grant the
dissolution of a civil union entered into in another state, it was powerless to grant the requested relief. It held that while plaintiff lacked a remedy at law, the dissolution of a civil union falls squarely within the scope of Supreme Court's broad equity jurisdiction. As it noted in Dickerson I, the N.Y. Constitution vests Supreme Court with "general original jurisdiction in law and equity" (N.Y. Const, art VI, s 7[a] ). " 'The power of equity is as broad as equity and justice require' ". Indeed, "[t]he essence of equity jurisdiction has been the power ... to [mold] each decree to the necessities of the particular case" (State of New York v. Barone, 74 N.Y.2d 332, 336 [1989]. Thus, once a court of equity has obtained jurisdiction over the subject matter of the action, as Supreme Court had here, it has the power to dispose of all matters at issue and to grant complete relief in accordance with the equities of the case. In other words, even in the absence of any direct grant of legislative power, Supreme Court has the "inherent authority ... to fashion whatever remedies are required for the resolution of justiciable disputes and the protection of the rights of citizens," tempered only by our Constitution and statutes. It found that the exercise of Supreme Court's equitable powers to grant a dissolution of the civil union was clearly warranted here. Plaintiff was in need of a judicial remedy to dissolve her legal relationship with defendant created by the laws of Vermont. Residency requirements prevent her from obtaining a dissolution of the civil union in Vermont, and the provisions of Domestic Relations Law 170,
which provide for divorce and dissolution of a marriage, were not applicable to this action since the parties did not enter into a marriage in Vermont. Thus, absent Supreme Court's invocation of its equitable power to dissolve the civil union, there would be no court competent to provide plaintiff the requested relief and she would therefore be left without a remedy. A court of equity "withholds its remedies if the result would be unjust, but freely grants them to prevent injustice when the other courts are helpless". Here, the uncontested evidence submitted by plaintiff established that, during the course of the parties' relationship, defendant had subjected her to violent physical abuse on several occasions and was verbally abusive to both her and her autistic son on a daily basis. Defendant also stole from her, resulting in defendant's criminal conviction of grand larceny, and removed the license plates from plaintiff's vehicle to prevent her and her son from escaping defendant's abusive conduct. Furthermore, the parties have lived apart since April 2006 and
plaintiff had alleged facts demonstrating that resumption of the civil union is not probable. Since plaintiff would be entitled to a dissolution of the civil union in Vermont but for that state's residency requirement (see Vt Stat Ann, tit 15, s 551[3], [7]; ss 592, 1206), the Court found that equity would be served by granting her the requested relief and that Supreme Court erred in declining to invoke its equitable powers to do so. Furthermore, notwithstanding Supreme Court's declaration freeing the parties from the rights and obligations flowing from the civil union, the fact remained that, in the absence of a judgment granting a dissolution, plaintiff and defendant continued to be interminably bound as partners to the union. Given this legal status, plaintiff was precluded from entering into another civil union or a marriage in Vermont as well as analogous relationships in several other jurisdictions. Supreme Court's denial of the requested dissolution also barred the parties from enjoying the more limited protections available to domestic partners under certain locals laws of this state, including New York City's Domestic Partnership Law, which forbids parties to a civil union from entering into a domestic partnership with another (see City of N.Y. Administrative Code s 3-241).


Disposition Based Almost Entirely upon Proof That Court Elicited Is Expressly Disapproved. Function of the Judge is to Protect the Record at Trial, Not to Make It.

In Matter of Kyle FF, 926 N.Y.S.2d 196 (3 Dept, 2011) in August 2010, respondent (born in 1995) appeared in Family Court and admitted to committing acts that, if committed by an adult, would constitute the crime of criminal mischief in the fourth degree. At the dispositional hearing that followed, the parties stipulated to the admission of the predispositional report, which recommended, among other things, that respondent be placed on probation for two years subject to various special conditions. Although the parties asked that Family Court accept that recommendation and indicated that they intended to offer no further proof in this regard, Family Court called as its own witness the author of the report and questioned her extensively regarding respondent's prior admission to the local hospital's mental health unit and a subsequent mental health evaluation conducted by the Northeast Parent & Child Society. In response to this testimony, Family Court then indicated that it would not close the proof until it obtained the corresponding records for respondent's admission/evaluation and stated its intent to issue subpoenas to that effect. Following additional discussion, Family Court agreed to accept the discharge summary from respondent's hospital admission and closed the proof. Thereafter, relying almost exclusively upon proof that it elicited, Family Court ordered that respondent be placed with
the Office of Children and Family Services until August 31, 2011. The Appellate Division held that Family Court improperly assumed a prosecutorial role by eliciting testimonial and documentary evidence at the dispositional hearing. Although respondent did not object when Family Court called the author of the predispositional report as a witness and, further, stipulated to the admission of the discharge summary, thereby rendering this issue unpreserved for review it exercised its discretion and
reversed Family Court's order. The Appellate Division observed that Family Court is vested with the discretion to call witnesses, including the author of the predispositional report (see Family Ct. Act 350.4[2] ), and may assume "a more 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[2002] ). However, "[t]he overarching principle restraining the court's discretion [in this regard] is that it is the function of the judge to protect the record at trial, not to make it" and the court must take care to avoid assuming "the function or appearance of an advocate" (Matter of Yadiel Roque C., 17 A.D.3d at 1169). Here, even though the parties agreed with the recommendation made by the Probation Department, Family Court called and extensively questioned the author of the predispositional report, secured the production of additional documentary evidence and then, according essentially no weight to the underlying recommendation and the parties' expressed wishes, crafted a disposition based almost entirely upon proof that it elicited-a practice with which this Court previously had expressed its disapproval (see Matter of Keaghn Y., 921 N.Y.S.2d at 739; Matter of Blaize F. [Christopher F.], 74 A.D.3d 1454, 1455 [2010]; Matter of Stampfler v. Snow, 290 A.D.2d 595, 596[2002]). Accordingly, Family Court's order was reversed and, as respondent's placement had not yet expired, this matter was remitted for a new dispositional hearing before a different judge.

Important New Decisions - July 20, 2011

Costs of After-school Program and Summer Camp Qualify as Child Care Expenses.

In Matter of Scarduzio v Ryan, --- N.Y.S.2d ----, 2011 WL 2714203 (N.Y.A.D. 2 Dept.) the Appellate Division observed that the party seeking modification of a support order has the burden of establishing the existence of a substantial change in circumstances warranting the modification. A change in the expenses for the child may constitute such a change in circumstances . It was undisputed that the child care expenses had decreased significantly since the order of support had been issued, due to the child attending school full time. It held that the father should only be required to pay his share of the child care expenses actually incurred by the mother commencing January 7, 2010, the date that the father filed his petition for a downward modification of his child support obligation . It rejected the father's argument that the costs of the after-school program and summer camp in which the child was enrolled did not qualify as child care expenses. The father offered no evidence to refute the mother's contention that these programs provided care for the child while she was at work. Accordingly, those programs qualified as child care expenses consistent with the purpose of Family Court Act 413(1)(c)(4).


An Evidentiary Ruling, Even When Made in Advance of a Trial on Motion Papers, Is Not Appealable

In Matter of Lyons v Lyons, --- N.Y.S.2d ----, 2011 WL 2714210 (N.Y.A.D. 2 Dept.) The Appellate Divison ruled that the appeal from so much of the order dated August 9, 2010, as denied the motion of Audrey Lyons to preclude the testimony of a court-appointed forensic evaluator at a hearing to be held on the issue of custody and to preclude the use of that evaluator's report at the hearing must be dismissed because it concerned an evidentiary ruling, which, even when made in advance of a hearing or trial on motion papers, is not appealable as of right or by permission.



Order Based upon Reports and Trial Testimony of Psychologists Which Made Reference to Statements about Respondent Attributed to Other Witnesses Who Did Not Testify at Trial, or Was Otherwise Qualified for Admission Pursuant to a Recognized Exception to the Rule Against Hearsay, Is Reversible Hearsay.

In Matter of Anthony WW, --- N.Y.S.2d ----, 2011 WL 2637279 (N.Y.A.D. 3 Dept.) Family Court ultimately terminated respondent's parental rights on the ground that he suffered from a mental illness that prevented him from providing proper care for his children. The Appellate Division reversed. It observed that at trial petitioner presented the testimony and reports of Richard Liotta and Donald Danser, both of whom were licensed psychologists who examined respondent. Respondent contended that both psychologists relied on inadmissible hearsay in preparing their reports and in arriving at their final opinions, and that since Family Court's decision terminating his parental rights was based in large measure on their reports and trial testimony, it must be reversed. Respondent argued that both psychologists, in their reports and in their trial testimony, made reference to statements about respondent attributed to other witnesses who did not testify at trial, none of which was admitted into evidence or was otherwise qualified for admission pursuant to a recognized exception to the rule against hearsay. Petitioner contended that both opinions were properly admitted and were either based on facts in the record or personally known to the witness or qualified as material of a kind accepted in the profession as reliable in forming a professional opinion and were properly admitted at trial. Danser testified that, in forming his opinion, he relied on his interview with respondent, as well as the results of various psychological tests that he performed on him. Danser also reviewed records that petitioner had on file regarding respondent, including case, progress and supervision notes, all of which were compiled during a four-year period beginning in 2003, as well as documents describing mental health treatment that respondent received during this time period. While Danser did not testify that this evidence was commonly relied upon in his profession to perform such an evaluation, Family Court determined that it was proper for him to refer to it, because some of this evidence was contained in the trial testimony given by other witnesses or in records that had been properly admitted into evidence at trial. However, the court did acknowledge that some of the references in Danser's report should not have been admitted and, for that reason, directed that a section of his report, entitled "Review of Records," be stricken because it referred to evidence that had not been admitted at trial. Significantly, Danser was never asked what impact this redacted evidence had on his evaluation of respondent and what effect, if any, it had on his opinion regarding respondent's mental condition. Similar issues existed with Liotta's report and testimony, both of which were admitted into evidence at trial. When he was first retained to perform his evaluation, Liotta was provided with petitioner's complete file on respondent. Later, he was asked to return the file and then, pursuant to a court order, was provided with a limited record to review. Liotta was also directed to limit his review to the records provided and not base his evaluation on respondent's fitness as a parent on statements made by the mother about respondent or on any collateral interviews that he may have conducted with other individuals regarding respondent. However, it was clear from the content of his report, as well as his testimony at trial, that Liotta, in forming his final opinion regarding respondent's fitness as a parent, relied on observations of respondent made by his eldest son's mental health provider as well as on statements made by the mother about respondent. In addition, Liotta's interviews with respondent's caseworker and his current mental heath therapist were referenced in his report and obviously played a role in the opinion that he ultimately offered regarding respondent's mental illness and its impact on his ability to be a parent. Like Danser, Liotta was never asked if this evidence was normally relied on within his profession as appropriate for the performance of such an evaluation and, while some of it was redacted, including any reference to his interview with the mental health therapist, Liotta was never
asked what impact this evidence had in formulating his final opinion as to
respondent's fitness as a parent. As a result, a proper foundation was not laid for the admission of the testimony of either psychologist or their reports. Without this evidence, Family Court's determination that respondent suffered from a mental illness that affected his ability to provide for his children was not supported by clear and convincing evidence. In footnotes the court pointed out that a redacted version of respondent's records from 2005 through 2007 was admitted into evidence at the trial. It also noted that Danser's evaluation focused on respondent's ability to function and contained recommendations for treatment. It was not performed for the specific purpose of determining whether respondent had the ability to provide an acceptable level of care for his children and, for that reason alone, should not have been admitted into evidence (see Social Services Law 384-b).


A Party May Be Held in Contempt for Their Subsequent Violation of an Oral Order or Directive, Issued in the Contemnor's Presence, Placed upon the Record and Transcribed into the Minutes of the Proceeding

In Matter of Lagano v Soule, --- N.Y.S.2d ----, 2011 WL 2637330 (N.Y.A.D. 3 Dept.), Petitioner (mother) and respondent Eric K. Taylor (father) were the biological parents of a son (born in 2002). In May 2005, respondent Linda S. Soule, the child's paternal grandmother, was granted custody of the child, and the mother was awarded specified periods of visitation. The mother commenced proceedings seeking to modify the prior award of custody and hold Soule in contempt for failing to comply with the visitation schedule. A hearing ensued as to the modification petitions in February 2006, at the conclusion of which Family Court granted the mother temporary custody of the child. The mother's attorney was instructed to prepare an order to that effect, which also was to include a directive that Soule produce the child at the next scheduled court appearance. When the matter reconvened in April 2006, Soule, who had relocated with the child out of state, appeared via telephone. Prior to adjourning the hearing due to the absence of the then attorney for the child, Judge Connerton advised Soule--repeatedly and in no uncertain terms--that she was required to produce the child on May 2, 2006, and Soule, in turn, indicated that she understood the court's directive. When Soule failed to appear or produce the child as ordered, the court awarded the mother sole legal custody with visitation to the father. After eventually locating and regaining physical custody of her son in August 2009, the mother commenced this violation proceeding against Soule and the father. Following a hearing in July 2010, Family Court upon application of the attorney for the child, dismissed the violation petition with prejudice, finding that the mother failed to establish that Soule was either served with or otherwise had knowledge of the May 2006 order. This appeal by the mother ensued and the Appellate Division found that the mother established a prima facie case of a willful violation as to Soule and, as such, Family Court erred in granting the motion to dismiss to that extent. The underlying pro se violation petition--liberally construed alleged a violation of both Judge Connerton's written May 2006 order and oral April 2006 directive, the latter of which ordered Soule to produce the child in court on May 2, 2006. Although there was insufficient evidence to support a finding that Soule had actual knowledge of the written May 2006 order there was no question that she had actual knowledge of Judge Connerton's April 2006 oral directive. In this regard, it is clear that "an oral 'order' or directive, issued in the contemnor's presence, placed upon the record and transcribed into the minutes of the proceeding, may be deemed a 'mandate' ... and, hence, may form the basis for contempt" (Matter of Betancourt v. Boughton, 204 A.D.2d 804, 808 [1994] ). It was clear from a review of the April 2006 transcript, of which Family Court took judicial notice, that Soule was repeatedly and unequivocally ordered by Judge Connerton to produce the child at the May 2006 court appearance, which, despite her acknowledgment of this directive and her expressed understanding thereof, Soule thereafter failed to do. Further, Soule's defiance of this clear and lawful mandate, as well as her subsequent conduct in secreting the child's whereabouts for the ensuing three years, plainly prejudiced the mother's parental rights and, was sufficient to establish a willful violation of Judge Connerton's April 2006 order. Accordingly, the motion dismissing the violation petition against Soule was denied and the matter was remitted to Family Court for further proceedings. In a footnote the court observed that Family Court, without objection, took judicial notice of "all prior proceedings involving [the child at issue]. The mere fact that the court did so in the context of a separate Family Court proceeding involving the child was of no moment, as a court may take judicial notice of prior judicial proceedings though in a different court and involving different parties. Family Court also took judicial notice of Judge Connerton's May 2006 order.



Once a Scientific Procedure Has Been Proved Reliable, a Frye Inquiry Need Not Be Conducted Each Time Such Evidence Is Offered and Courts May Take Judicial Notice of its Reliability


In Matter of Bethany F, 925 N.Y.S.2d 737 (4 Dept, 2011) respondent father
appealed from an order that placed him under the supervision of petitioner based on a finding that he sexually abused his daughter. The Appellate Division affirmed holding that Family Court did not abuse its discretion in denying his motion for a Frye hearing with respect to the admissibility of validation testimony of a court-appointed mental health counselor. "Once a scientific procedure has been proved reliable, a Frye inquiry
need not be conducted each time such evidence is offered and courts may take
judicial notice of its reliability (People v. Hopkins, 46 A.D.3d 1449, 1450, 848 N.Y.S.2d 460]; see People v. LeGrand, 8 N.Y.3d 449, 458, 835 N.Y.S.2d 523, 867 N.E.2d 374). Here, the court-appointed counselor utilized the Sgroi method to interview the child and make a determination with respect to the veracity of her allegations. The Court of Appeals has cited to Dr. Sgroi's "Handbook of Clinical Intervention in Child Sexual Abuse" (see Matter of Nicole V., 71 N.Y.2d 112, 120-121, 524 N.Y.S.2d 19, 518 N.E.2d 9140, and other courts in New York State have admitted validation testimony of experts who have utilized the Sgroi method. The court-appointed counselor testified at the hearing that the Sgroi method was used by "all" counselors in the field to validate allegations of sexual abuse. Inasmuch as a Frye hearing is required only where a party seeks to introduce testimony on a novel topic (see People v. Garrow, 75
A.D.3d 849, 852, 904 N.Y.S.2d 589), and there was no indication in the record that the methods used by the court-appointed counselor to validate the allegations of sexual abuse in this case were novel, the father's motion for a Frye hearing was properly denied.