Supreme Court May Not Determine Whether the Marriage Is Irretrievably Broken until All Ancillary Issues Are Resolved.
In Schiffer v Schiffer, --- N.Y.S.2d ----, 2011 WL 4790060 (N.Y.Sup.) plaintiff husband moved for an order directing that summary judgment be granted in his favor of divorce under Domestic Relations Law 170 (7). The defendant wife opposed the application and cross-moved for summary judgment dismissing the complaint. The parties were married in Massachusetts on March 25, 1990 and had three unemancipated children of the marriage. On November 29, 2010, Mr. Schiffer commenced the action for divorce, claiming irretrievable breakdown of the marriage for a period of more than six months prior to the commencement of the action. On December 21, 2010, Mrs. Schiffer served her verified answer, contesting these allegations, specifically claiming that Mr. Schiffer's actions belied his claims that the marriage was irretrievably broken. The Supreme Court observed that Domestic Relations Law § 170 [7] allows parties to seek a judgment of divorce when "the relationship between the husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath" also provides that "no judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the
payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into this judgment of divorce".
The Supreme Court agreed with the wife’s argument that the husband was not entitled to summary judgment since no judgment of divorce can be made unless and until the economic and custodial issues are determined or resolved by the parties. The statute clearly states that a judgment may only be granted after economic and custodial issues were resolved. In this case, all of the conditions of the statute had not been met since the economic and custodial issues were yet to be addressed. Mr. Schiffer had failed to meet his prima facie burden, and his motion for summary judgment was denied.
Mrs. Schiffer's motion for summary judgment was also denied, but for a different reason. Supreme Court observed that in Strack v. Strack (31 Misc.3d 258 [Sup Ct, Essex County 2011] ), Justice Muller held that the "determination of whether a breakdown of a marriage is irretrievable is a question to be determined by the finder of fact." This holding demonstrably agreed with fundamental concepts of due process and comported with similar interpretations of no-fault statutes from our sister states. Since the sole means of procuring a divorce in New York is by judicial process (N.Y. Const, art I, s 9), precluding a party from contesting a ground for divorce "must be regarded as the equivalent of denying [him or her] an opportunity to be heard ...and in the absence of a sufficient countervailing justification for the State's action, a denial of due process". A contrary finding would merely reduce the court to a rubber stamp whenever presented with an action for divorce under Domestic Relations Law 170 (7). While Mrs. Schiffer had established that the ancillary issues were not resolved and that her marriage to Mr. Schiffer had not broken down irretrievably, Mr. Schiffer raised a triable issue of fact that the marriage was irretrievably broken for at least six months. The proof bared by the parties sufficed to establish a true issue of fact as to whether this marriage was irretrievably broken, which the finder of fact would undoubtedly resolve after the other issues were resolved.
A Court May Not Delegate to a Parenting Coordinator the Authority to Resolve Issues Affecting the Best Interests of the Children
In Silbowitz v Silbowitz, --- N.Y.S.2d ----, 2011 WL 4599852 (N.Y.A.D. 2 Dept.) the Appellate Division affirmed an order of the Supreme Court which, in effect, granted the defendant former husband's motion to appoint a parenting coordinator to assist the parties in implementing the terms of their existing child custody and visitation arrangement provided for in the parties' stipulation dated October 22, 2007. It observed that although a court may properly appoint a parenting coordinator to mediate between parties and oversee the implementation of their court-ordered parenting plan a court may not delegate to a parenting coordinator the authority to resolve issues affecting the best interests of the children. Here, despite the expansive scope of the issues entrusted to the parenting coordinator by the Supreme Court's order, his power was properly limited to implementing the terms of the existing child custody and visitation arrangement provided for in the parties' stipulation dated October 22, 2007, subject to the Supreme Court's oversight. Although the parenting coordinator was empowered to issue a written decision resolving a conflict where he was unable to broker an agreement between the parties, the Supreme Court's order also provided that the parties may seek to have the parenting coordinator's decision so-ordered by the Supreme Court and that they "retain their right to return to Court and seek a modification of their parenting plan at any time." Accordingly, the Supreme Court properly limited the role of the parenting coordinator and properly provided that his resolutions remained subject to court oversight.
The plaintiff also contended that the order insufficiently protected the confidential and privileged information of the parties and the children because it required the parties to execute authorizations and releases allowing the parenting coordinator to obtain information which was otherwise confidential or privileged. However, the order required that the parenting coordinator maintain the confidentiality of the information and when read as a whole, clearly limited his authority to request authorizations or releases and use information only in furtherance of his duty to mediate between the parties in the implementation of their parenting plan. Accordingly, no further limitation was necessary.
Supreme Court Properly Declined to Imply a Term Which the Parties Did Not Insert into Their Stipulation, for the Purpose of Determining the Contempt Motion. Court Has Discretion to Decide If it Will Consider New Argument in Reply Papers.
In Penavic v Penavic, --- N.Y.S.2d ----, 2011 WL 4600442 (N.Y.A.D. 2 Dept.) the the plaintiff moved, pursuant to Judiciary Law 756 to hold the defendant in civil contempt. Supreme Court denied the motion. The Appellate Divison affirmed. It held that to prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged with contempt willfully violated a clear and unequivocal mandate of a court's order, with knowledge of that order's terms, thereby prejudicing the movant's rights. Supreme Court providently exercised its discretion in denying her motion to hold the defendant in contempt for failing to remove her name from a home equity line of credit ( HELOC) or closing it. While the plaintiff was aware of the HELOC at the time that she executed the stipulation, no provision was included in the stipulation requiring that her name be removed from it or that it be closed, even though the defendant was precluded from continuing to use the HELOC pursuant to the provision which prohibited him from incurring additional debt upon the plaintiff's credit. Since the terms of the stipulation with respect to whether the HELOC had to be closed were unambiguous, the Supreme Court properly declined to imply a term which the parties did not insert into the stipulation, for the purpose of determining the contempt motion. The plaintiff raised, for the first time in her reply papers, the argument that the defendant was also in contempt of the judgment by increasing the balance of the HELOC from $25,000, the amount of the balance at the time that the parties executed the stipulation, to $750,000, which he disclosed in his affidavit opposing the plaintiff's motion. The Appellate Division held that it was within the Supreme Court's discretion to decide if it would consider this new argument. Inasmuch as the plaintiff did not address this provision in her motion papers and relied solely upon the provisions concerning the acknowledgment that the bills or accounts for the former marital residence were solely in the husband's individual name as the basis for her motion, Supreme Court properly exercised its discretion to disregard that argument in connection with the motion before it (citing Matter of Allstate Ins. Co. v. Dawkins, 52 AD3d 826, 827).
Authors Note: In Matter of Allstate Ins. Co. v. Dawkins, the Appellate Division said: “The function of reply papers is to address arguments made in opposition to the position taken by the movant, not to permit the movant to introduce new arguments or new grounds for the requested relief (see Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677 [2005]; Matter of TIG Ins. Co. v Pellegrini, 258 AD2d 658 [1999]). Further, Dawkins was not afforded an opportunity to address the new argument (see Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677 [2005]; Matter of TIG Ins. Co. v Pellegrini, 258 AD2d 658 [1999]).”
Court May Not Order a Parent Undergo Counseling or Treatment as a Condition of Future Visitation or Re-application for Visitation Rights but May Direct a Party to Submit to a Mental Health Evaluation for Use in Any Future Determination of Visitation.
In Matter of Smith ex rel Hunter v Dawn F.B., --- N.Y.S.2d ----, 2011 WL 4600469 (2d Dept 2011) Family Court granted the petition of the attorney for the child alleging that the mother violated an order of custody and visitation, prohibited her from having any contact with her son, directed that she submit to a mental health evaluation, directed her to follow treatment recommendations resulting from that evaluation,
and conditioned her application for resumption of visitation upon her compliance with treatment, including medication, recommended by a mental health professional.
The Appellate Division modified the order by deleting the provision conditioning the mother's application for resumption of visitation upon her compliance with treatment, including medication, recommended by a mental health professional. It found that Family Court's determination that it was in the child's best interest to suspend supervised visitation and prohibit all contact with the mother had a sound and substantial basis in the record. The mother, by her own admission, violated the express terms of the Family Court's previous order, which only permitted visitation supervised by designated individuals, by having unsupervised contact with the child at two separate little league baseball games. Moreover, the mother contributed to certain events at a recent therapeutic visit which adversely affected the child and undermined the progress of the therapeutic visitation.
The Appellate Division pointed out that a court may not order that a parent undergo counseling or treatment as a condition of future visitation or re-application for visitation rights, but may only direct a party to submit to counseling or treatment as a component of visitation. Here, the Family Court improperly conditioned the mother's application for resumption of visitation upon her compliance with treatment, including medication, recommended by a mental health professional. However, the Family Court properly directed the mother to submit to a mental health evaluation for use in any future determination of visitation.
Family Court Lacks Subject Matter Jurisdiction over Article 8 Proceeding Where There Is No Intimate Relationship Between Parties
In Matter of Riedel v Vasquez, --- N.Y.S.2d ----, 2011 WL 4600481 (N.Y.A.D. 2 Dept.), the Appellate Division affirmed an order of the Family Court which, without a hearing, granted Respondents motion to dismiss the petition for lack of subject matter jurisdiction. On August 10, 2010, the petitioner commenced an Article 8 proceeding seeking an order of protection against Milagros Carranza Vasquez (respondent), who was the estranged wife of the petitioner's live-in boyfriend. The petitioner had two children with the boyfriend, and the respondent had one child with him. The petitioner alleged that she and the respondent, who did not reside together, had an "intimate relationship" within the meaning of Family Court Act 812(1). The Family Court, without a hearing, dismissed the petition on the ground of lack of subject matter jurisdiction.
The Appellate Division affirmed. It pointed out that the Family Court is a court of limited subject matter jurisdiction, and "cannot exercise powers beyond those granted to it by statute" (Matter of Johna M.S. v. Russell E.S., 10 N.Y.3d 364). Pursuant to Family Court Act 812(1), the Family Court's jurisdiction in family offense proceedings is limited to certain prescribed acts that occur "between spouses or former spouses, or between parent and child or between members of the same family or household". Members of the same family or household include, among others, "persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time" (Family Ct Act 812[1])(e). Expressly excluded from the ambit of "intimate relationship," are "casual acquaintance[s]" and "ordinary fraternization between two individuals in business or social contexts". Beyond those delineated exclusions, what qualifies as an "intimate relationship" within the meaning of Family Court Act 812(1)(e) is determined on a case-by-case basis. Relevant factors include the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Here, the parties had no direct relationship and were only connected through a third party, who was the biological father of the parties' respective children. The parties never resided together and did not take care of each other's children. The respondent's contact with the petitioner and/or her children had been minimal. Given these undisputed facts, no hearing was required, as the Family Court possessed sufficient information to determine that the parties were not and never had been in an "intimate relationship" as defined by Family Court Act s 812(1)(e).
Family Court Lacked Exclusive, Continuing Jurisdiction to Modify Custody Order Where Neither the Child Nor the Father Maintained a Significant Connection with New York, and Substantial Evidence Regarding the Child's Present and Future Welfare Was No Longer Available in this State.
In Knight v Morgan, --- N.Y.S.2d ----, 2011 WL 4600549 (N.Y.A.D. 2 Dept.) the
the Family Court issued an order of custody on consent, on August 24, 2009, in connection with the father's petition seeking joint custody of the subject child with the mother, awarding joint legal custody to both parents, with primary residential custody to the father. Accordingly, the child, who was born in 2000, and had resided with his mother in New York since his birth, moved to California in September 2009 to live with his father. After moving to California with the father, the child was diagnosed by a psychologist in California with attention deficit hyperactivity disorder, oppositional defiant disorder, post-traumatic stress disorder and, possibly, a bipolar disorder. The child received treatment from healthcare providers in California, and was not permitted to travel until his condition was stabilized. The child had not returned to New York since moving to California. In December 2009 the mother filed a cross petition in the Family Court, to modify the prior order of custody so as to award her sole custody of the child, in which she alleged that the father had falsely accused her of abusing the child. In January 2010 the father separately cross-petitioned to modify the prior custody order so as to award him sole custody of the child. Subsequently, in May 2010, while both cross petitions were pending, the father moved, inter alia, to dismiss the mother's cross petition for lack of subject matter jurisdiction. After a hearing on the issue of jurisdiction, the Family Court granted that branch of the father's motion which was to dismiss the mother's cross petition on that ground. The Family Court did not address the father's separate cross petition.
The Appellate Division reversed. It held that the Family Court correctly determined that it lacked exclusive, continuing jurisdiction pursuant to Domestic Relations Law 76-a(1), since neither the child nor the father maintained a significant connection with New York, and substantial evidence regarding the child's present and future welfare was no longer available in this State (Domestic Relations Law 76-a[1][a]). However, the Family Court had jurisdiction to hear the mother's cross petition for modification pursuant to Domestic Relations Law 76-a(2) since it would have had jurisdiction for an initial child custody determination under Domestic Relations Law 76(1)(a). New York was the child's "home state" within the six months immediately preceding the commencement of this proceeding, and the mother continued to reside in this State. The matter was be remitted to the Family Court for further proceedings on the cross petitions.
New York Does Not Have Subject Matter Jurisdiction Where it Is Not State in Which Child Lived for at Least Six Consecutive Months Before Commencement of Custody Proceeding
In Jablonsky-Urso v Urso, --- N.Y.S.2d ----, 2011 WL 4600550 (N.Y.A.D. 2 Dept.) the Appellate Division held that Family Court properly granted the father's motion to dismiss the mother’s petition for custody of the parties' son for lack of subject matter jurisdiction. Domestic Relations Law 75-a (7) defines a child's home state as "the state in which a child lived with a parent ... for at least six consecutive months immediately before the commencement of a child custody proceeding". Under the Uniform Child Custody Jurisdiction and Enforcement Act, "[h]ome state jurisdiction is paramount and whether to accept jurisdiction is a home state prerogative" (Matter of Navarrete v. Wyatt, 52 A.D.3d at 836, 861 N.Y.S.2d 393). Here, the Family Court properly determined that New York was not the child's home state and, therefore, that New York did not have jurisdiction over this custody dispute (see Domestic Relations Law 76). However, it held that the Family Court erred in refusing to exercise temporary emergency jurisdiction over the family offense petition (see Domestic Relations Law 76-c) and in summarily dismissing the family offense petition upon its finding that the allegations contained in the mother's family offense petition were insufficient to sustain a family offense. The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court and the allegations asserted in a petition seeking the issuance of an order of protection must be supported by a fair preponderance of the evidence. The Family Court improperly determined that the mother failed to demonstrate that the father possessed the intent required to sustain any of the family offenses alleged in the petition, as it did so without the benefit of a hearing. Based on the foregoing, that branch of the father's motion which was to dismiss the family offense petition had to be denied and the matter remitted to the Family Court, for a fact-finding hearing and a determination of the family offense petition with respect to the allegations contained therein.
Thursday, October 13, 2011
Tuesday, October 04, 2011
Important New Decisions - October 3, 2011
First Department Establishes Rules Related to Obligation of Nonparty to Produce Electronically Stored Information Deleted Through Normal Business Operations
In Tener v Cremer, --- N.Y.S.2d ----, 2011 WL 4389170 (N.Y.A.D. 1 Dept.) the First Department addressed the obligation of a nonparty to produce electronically stored information (ESI) deleted through normal business operations. The action underlying this discovery dispute concerned a statement about plaintiff that someone posted on a website known as Vitals.com on April 12, 2009. Plaintiff claimed this statement defamed her. Plaintiff claimed that through discovery she managed to trace the Internet protocol (IP) address of the computer from which the allegedly defamatory post originated "to a computer in the custody and control of New York University." This computer had accessed the Internet through a portal located at Bellevue Medical Center and registered to nonparty New York University Langone Medical Center. According to NYU's Chief Information Security Officer, NYU had installed the Internet portal at Bellevue for the convenience of its residents who trainedd there. The portal is a network address translation (NAT) portal that is essentially a switchboard through which a person can access the Internet. While only NYU personnel with proper security codes can gain access to NYU's computer system and medical records, anyone using a computer plugged into an ethernet outlet at Bellevue can access other web sites through the NYU portal. On April 30, 2010, plaintiff served a subpoena on NYU seeking the identity of all persons who accessed the Internet on April 12, 2009, via the IP address plaintiff previously identified. With the subpoena, plaintiff served a preservation letter advising NYU that the identity of the person who posted the remarks was at issue and that NYU should halt any normal business practices that would destroy that information. When NYU did not produce the information, plaintiff moved for contempt. In opposition to plaintiff's contempt motion, NYU's Chief Information Security Officer stated that "[c]omputers that simply access the web through NYU's portal appear as a text file listing that is automatically written over every 30 days. NYU does not possess the technological capability or software, if such exists, to retrieve a text file created more than a year ago and 'written over' at least 12 times." Plaintiff, in reply, submitted an affidavit from a forensic computer expert opining that NYU could still access the information using software designed to retrieve deleted information. The expert stated that "the term 'written over' is deceptive" because what really occurs is that " 'old' information or data is typically allocated to 'free space' within the system." Plaintiff's expert suggested using "X-Rays Forensic" or "Sleuth Kit" to retrieve the information from unallocated space.
Supreme Court denied the contempt motion in part because it found that NYU did not have the ability to produce the materials plaintiff demanded and that "this allegation is unrefuted as a reply affidavit contradicting such allegation has not been supplied." The Appellate Division held that Supreme Court was incorrect. In its papers in opposition to the motion, NYU offered no evidence that it made any effort at all to access the data, apparently because it believed it could not, as a nonparty, be required to install forensic software on its system. However, the cases that NYU cites to support its assertion that it need not install forensic software were outdated. The most recent was from 1993, nearly 20 years ago (see Carrick Realty Corp. v. Flores, 157 Misc.2d 868, 598 N.Y.S.2d 903 (Civ Ct, New York County 1993). Thus, there were several unanswered questions regarding NYU's ability to produce the requested documents.
The Appellate Division held that the party moving for civil contempt arising out of noncompliance with a subpoena duces tecum bears the burden of establishing, by clear and convincing evidence, that the subpoena has been violated and that "the party from whom the documents were sought had the ability to produce them" (Yalkowsky v. Yalkowsky, 93 A.D.2d 834, 835 [1983]; see also Gray v. Giarrizzo, 47 A.D.3d 765, 766 [2008] ). In this day and age the discovery of ESI is commonplace. Although the CPLR is silent on the topic, the Uniform Rules of the Trial Courts and several courts have addressed the discovery of ESI and have provided working guidelines that are useful to judges and practitioners. The Commercial Division for Supreme Court, Nassau County publishes in depth guidelines for the discovery of ESI (the Nassau Guidelines). While aimed at parties, the Nassau Guidelines are appropriate in cases, such as this, where a nonparty's data is at issue. ESI is difficult to destroy permanently. Deletion usually only makes the data more difficult to access. Based on the specific facts of this case, the Court found that the Nassau Guidelines provided a practical approach. To exempt inaccessible data presumptively from discovery might encourage quick deletion as a matter of corporate policy, well before the spectre of litigation is on the horizon and the duty to preserve it attaches. A cost/benefit analysis, as the Nassau Guidelines provide, does not encourage data destruction because discovery could take place regardless. Plaintiff had variously described the information it seeks as stored in a "cache" file, as "unallocated" data or somewhere in backup data. Data from these sources is difficult to access. But, plaintiff's only chance to confirm the identity of the person who allegedly defamed her may lie with NYU. Thus, plaintiff thus demonstrated "good cause"necessitating a cost/benefit analysis to determine whether the needs of the case warrant retrieval of the data.
As the record was insufficient to permit the court to undertake a cost/benefit analysis it remanded to Supreme Court for a hearing to determine at least: (1) whether the identifying information was written over, as NYU maintained, or whether it is somewhere else, such as in unallocated space as a text file; (2) whether the retrieval software plaintiff suggested can actually obtain the data; (3) whether the data will identify actual persons who used the internet on April 12, 2009 via the IP address plaintiff identified; (4) which of those persons accessed Vitals.com and (5) a budget for the cost of the data retrieval, including line item(s) correlating the cost to NYU for the disruption. It observed that some of these questions (particularly [1] and [2] ) may involve credibility determinations. Until the court has this minimum information, it cannot assess "the burden and expense of recovering and producing the ESI and the relative need for the data" (Nassau Guidelines) and concomitantly whether the data is so "inaccessible" that NYU does not have the ability to comply with the subpoena. That NYU is a nonparty should also figure into the equation. In the event the data is retrievable without undue burden or cost, the court should give NYU a reasonable time to comply with the subpoena.
Family Court Finds Irrebuttable Presumption of Unfitness in SSL 378-a(2)(e)(1) and 378-a(2)(h) Violate Due Process Clauses of the New York State and United States Constitutions
In the Matter of the Adoption of Abel,--- N.Y.S.2d ----, 2011 WL 4436127 (N.Y.Fam.Ct.), Cheryl and Derrick Adamson filed a petition to adopt Abel. Abel was born on August 9, 2004. Since September 22, 2004 when Abel was discharged from the hospital, on the basis of a petition that had been filed alleging that his biological mother had neglected him, Abel resided in the home of his maternal cousin, Cheryl Adamson, and her husband, Derrick Adamson. On April 20, 2009, the court terminated Abel's biological mother's parental rights.. The evidence submitted provided incontrovertible support for the proposition that it was in Abel's best interest to be adopted by the Adamsons and clearly militated in favor of this court approving the Adamsons' petition to adopt Abel. Mr. Adamson's criminal history, however, created an issue as to whether there existed a statutory bar to such approval. Mr. Adamson had a 1987 Washington D.C. conviction for simple assault and a 1992 Kings County (New York State) conviction for Robbery in the Third Degree. On November 24, 2009, pursuant to Social Services Law 378-a(2)(h), New York Foundling conducted a safety assessment of the conditions of the Adamson household. Based on the remoteness in time of his criminal convictions and the fact that in the years since the 1992 robbery conviction, Mr. Adamson had reformed his behavior and has led a productive life, the safety assessment reported that Mr. Adamson did not pose a safety concern to Abel. The assessment concluded that because "Mr. Adamson has been the sole father figure in Abel's life, [New York Foundling] strongly believes that it is in the best interest of the child to be adopted by Mr. and Mrs. Adamson."
In order to gain further understanding of the facts underlying Mr. Adamson's 1992 robbery conviction, the court obtained the criminal court complaint and a transcript of Mr. Adamson's guilty plea. The criminal complaint alleged that on November 27, 1991, in Kings County, Mr. Adamson hit the victim with an unknown blunt object about his head and face and took a bag containing money that the victim had been carrying.The blows allegedly knocked out the victim's front teeth, caused his nose to bleed, and resulted in his sustaining a separated shoulder. On February 3, 1992, having been promised a sentence of one and one-third to four years imprisonment, Mr. Adamson pled guilty to one count of Robbery in the Third Degree and admitted that, on November 27, 1991, when the owner of a store came out [of the store], he hit him, caused him to fall, took his bag containing money, and fled. The Family Court observed that prior to the 2008 amendment of SSL 378-a(2)(e), the court would have found that Mr. Adamson's 1992 robbery conviction did not automatically disqualify him from adopting Abel because denial of Mr. and Mrs. Adamson's petition to adopt would have created an unreasonable risk of harm to Abel's mental health and granting said petition would have been in Abel's best interest and would not have placed his safety in jeopardy. However, in 2008, in order to comply with the federal Adam Walsh Child Protection Act of 2006, see Public Law 109-248, New York State eliminated the language in SSL 378--a which only presumptively disqualified from becoming foster or adoptive parents those who had been convicted of certain felonies, and by doing so made automatic the disqualification of those prospective foster or adoptive parents who had been convicted of certain felonies. The Court held that Mr. Adamson's conviction in 1992 for Robbery in the Third Degree fell within the category of convictions which would automatically disqualify him from adopting Abel. SSL 378-a(2)(e)(1)(A) reads, in pertinent part, "an application for certification or approval of a prospective foster parent or prospective adoptive parent shall be denied where a criminal history record of the prospective foster parent or prospective adoptive parent reveals a conviction for: (A) a felony conviction at any time involving: (i) child abuse or neglect; (ii) spousal abuse; (iii) a crime against a child, including child pornography; or (iv) a crime involving violence, including rape, sexual assault, or homicide, other than a crime involving physical assault or battery. See also 18 NYCRR 421.27(d)(1); 42 USCA 671(a)(20)(A)(I); 45 C.F.R. 1356.30(b)(4). Since assault was specifically excluded from the above-cited provision and since Mr. Adamson's assault conviction was both a misdemeanor and occurred over five years ago, there was no doubt that, unlike the robbery conviction, the assault conviction fell within the category of convictions for which the court had discretion to approve or deny the petition to adopt. See SSL 378-a(2)(e)(3(A). Because robbery was not specifically mentioned in this provision, the court, therefore, found that Mr. Adamson's 1992 robbery conviction constituted a "crime involving violence. The fact that robbery is not specifically included in Social Services Law 378-a(2)(e)(1)(A)(iv) is not dispositive. Although this provision specifically includes rape, sexual assault and homicide and specifically excludes assault as crimes involving violence, there is nothing in either the legislative history of this provision or the state or federal regulations promulgated thereunder that would indicate that the listed crimes are exhaustive, and not merely illustrative, of crimes involving violence.
It was beyond cavil that Mr. Adamson had rehabilitated himself and that removal of Abel from this home would have a devastating impact upon Abel. Under the circumstances of this case, it was clear that to follow the strict mandate of the statute and deny Mr. and Mrs. Adamson's petition to adopt Abel and to remove Abel from the home of his maternal cousin and her husband-the only home he has ever known-based solely upon Mr. Adamson's 1992 robbery conviction, would deprive both Abel and the Adamsons of their due process right to an individualized determination of whether this adoption is in Abel's best interest. That right, to a case-specific determination, was firmly established almost forty years ago in Stanley v. Illinois, 605 U.S. 645(1972) when the United States Supreme Court struck down as violative of the Fourteenth Amendment, Illinois' irrebuttable statutory presumption that all unmarried fathers are unqualified to raise their children. The Court held that a hearing was required by the due process clause, upon the death of the mother and prior to the removal of the children, to determine whether the father was fit to raise the children. In so ruling, the Court opined, "procedure by [irrebuttable] presumption is always cheaper and easier than individualized determination. But when ... the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to fast formalities, it needlessly risks running roughshod over the important interests of both parent and child ... [and] therefore cannot stand." Based upon the due process clauses of the New York State and United States Constitutions, this court found that SSL 378-a(2)(e)(1) and 378-a(2)(h), as applied to the facts of this matter, violated Mr. and Mrs. Adamson's and Abel's right to a determination, based on the totality of the circumstances, as to whether the adoption of Abel by the Adamsons is in Abel's best interest. The court examined the totality of the circumstances presented and notwithstanding Mr. Adamson's criminal past, held that it was in Abel's best interest to be adopted by Mr. and Mrs. Adamson and granted the petition.
Method of Service Provided for in Order to Show Cause Is Jurisdictional
In Matter of Sharma v New, --- N.Y.S.2d ----, 2011 WL 4389744 (N.Y.A.D. 2 Dept.), in March 2010 the mother filed a petition and order to show cause to modify the overnight visitation provisions contained in an order dated January 14, 2010, alleging that the father violated that order by taking the subject child "to a different hotel than the one ... which he informed [the social worker] he would be using." In an order dated July 9, 2010, the Family Court, inter alia, granted the mother's petition so as to suspend the father's overnight visitation. The Appellate Division reversed. It observed that the method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with. Moreover, where the court orders service by a particular date, all components of service must be accomplished by that date. Here, the record did not contain any evidence establishing that the father was properly or timely served in compliance with the provisions of the order to show cause. Moreover, contrary to the contention of the attorney for the child, the father asserted the defense of lack of personal jurisdiction in his answer and did not waive the defense (see CPLR 3211[e]). Since personal jurisdiction was not obtained, the Family Court should have dismissed the proceeding.
Father Did Not Implicitly Consent to 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.
In Tener v Cremer, --- N.Y.S.2d ----, 2011 WL 4389170 (N.Y.A.D. 1 Dept.) the First Department addressed the obligation of a nonparty to produce electronically stored information (ESI) deleted through normal business operations. The action underlying this discovery dispute concerned a statement about plaintiff that someone posted on a website known as Vitals.com on April 12, 2009. Plaintiff claimed this statement defamed her. Plaintiff claimed that through discovery she managed to trace the Internet protocol (IP) address of the computer from which the allegedly defamatory post originated "to a computer in the custody and control of New York University." This computer had accessed the Internet through a portal located at Bellevue Medical Center and registered to nonparty New York University Langone Medical Center. According to NYU's Chief Information Security Officer, NYU had installed the Internet portal at Bellevue for the convenience of its residents who trainedd there. The portal is a network address translation (NAT) portal that is essentially a switchboard through which a person can access the Internet. While only NYU personnel with proper security codes can gain access to NYU's computer system and medical records, anyone using a computer plugged into an ethernet outlet at Bellevue can access other web sites through the NYU portal. On April 30, 2010, plaintiff served a subpoena on NYU seeking the identity of all persons who accessed the Internet on April 12, 2009, via the IP address plaintiff previously identified. With the subpoena, plaintiff served a preservation letter advising NYU that the identity of the person who posted the remarks was at issue and that NYU should halt any normal business practices that would destroy that information. When NYU did not produce the information, plaintiff moved for contempt. In opposition to plaintiff's contempt motion, NYU's Chief Information Security Officer stated that "[c]omputers that simply access the web through NYU's portal appear as a text file listing that is automatically written over every 30 days. NYU does not possess the technological capability or software, if such exists, to retrieve a text file created more than a year ago and 'written over' at least 12 times." Plaintiff, in reply, submitted an affidavit from a forensic computer expert opining that NYU could still access the information using software designed to retrieve deleted information. The expert stated that "the term 'written over' is deceptive" because what really occurs is that " 'old' information or data is typically allocated to 'free space' within the system." Plaintiff's expert suggested using "X-Rays Forensic" or "Sleuth Kit" to retrieve the information from unallocated space.
Supreme Court denied the contempt motion in part because it found that NYU did not have the ability to produce the materials plaintiff demanded and that "this allegation is unrefuted as a reply affidavit contradicting such allegation has not been supplied." The Appellate Division held that Supreme Court was incorrect. In its papers in opposition to the motion, NYU offered no evidence that it made any effort at all to access the data, apparently because it believed it could not, as a nonparty, be required to install forensic software on its system. However, the cases that NYU cites to support its assertion that it need not install forensic software were outdated. The most recent was from 1993, nearly 20 years ago (see Carrick Realty Corp. v. Flores, 157 Misc.2d 868, 598 N.Y.S.2d 903 (Civ Ct, New York County 1993). Thus, there were several unanswered questions regarding NYU's ability to produce the requested documents.
The Appellate Division held that the party moving for civil contempt arising out of noncompliance with a subpoena duces tecum bears the burden of establishing, by clear and convincing evidence, that the subpoena has been violated and that "the party from whom the documents were sought had the ability to produce them" (Yalkowsky v. Yalkowsky, 93 A.D.2d 834, 835 [1983]; see also Gray v. Giarrizzo, 47 A.D.3d 765, 766 [2008] ). In this day and age the discovery of ESI is commonplace. Although the CPLR is silent on the topic, the Uniform Rules of the Trial Courts and several courts have addressed the discovery of ESI and have provided working guidelines that are useful to judges and practitioners. The Commercial Division for Supreme Court, Nassau County publishes in depth guidelines for the discovery of ESI (the Nassau Guidelines). While aimed at parties, the Nassau Guidelines are appropriate in cases, such as this, where a nonparty's data is at issue. ESI is difficult to destroy permanently. Deletion usually only makes the data more difficult to access. Based on the specific facts of this case, the Court found that the Nassau Guidelines provided a practical approach. To exempt inaccessible data presumptively from discovery might encourage quick deletion as a matter of corporate policy, well before the spectre of litigation is on the horizon and the duty to preserve it attaches. A cost/benefit analysis, as the Nassau Guidelines provide, does not encourage data destruction because discovery could take place regardless. Plaintiff had variously described the information it seeks as stored in a "cache" file, as "unallocated" data or somewhere in backup data. Data from these sources is difficult to access. But, plaintiff's only chance to confirm the identity of the person who allegedly defamed her may lie with NYU. Thus, plaintiff thus demonstrated "good cause"necessitating a cost/benefit analysis to determine whether the needs of the case warrant retrieval of the data.
As the record was insufficient to permit the court to undertake a cost/benefit analysis it remanded to Supreme Court for a hearing to determine at least: (1) whether the identifying information was written over, as NYU maintained, or whether it is somewhere else, such as in unallocated space as a text file; (2) whether the retrieval software plaintiff suggested can actually obtain the data; (3) whether the data will identify actual persons who used the internet on April 12, 2009 via the IP address plaintiff identified; (4) which of those persons accessed Vitals.com and (5) a budget for the cost of the data retrieval, including line item(s) correlating the cost to NYU for the disruption. It observed that some of these questions (particularly [1] and [2] ) may involve credibility determinations. Until the court has this minimum information, it cannot assess "the burden and expense of recovering and producing the ESI and the relative need for the data" (Nassau Guidelines) and concomitantly whether the data is so "inaccessible" that NYU does not have the ability to comply with the subpoena. That NYU is a nonparty should also figure into the equation. In the event the data is retrievable without undue burden or cost, the court should give NYU a reasonable time to comply with the subpoena.
Family Court Finds Irrebuttable Presumption of Unfitness in SSL 378-a(2)(e)(1) and 378-a(2)(h) Violate Due Process Clauses of the New York State and United States Constitutions
In the Matter of the Adoption of Abel,--- N.Y.S.2d ----, 2011 WL 4436127 (N.Y.Fam.Ct.), Cheryl and Derrick Adamson filed a petition to adopt Abel. Abel was born on August 9, 2004. Since September 22, 2004 when Abel was discharged from the hospital, on the basis of a petition that had been filed alleging that his biological mother had neglected him, Abel resided in the home of his maternal cousin, Cheryl Adamson, and her husband, Derrick Adamson. On April 20, 2009, the court terminated Abel's biological mother's parental rights.. The evidence submitted provided incontrovertible support for the proposition that it was in Abel's best interest to be adopted by the Adamsons and clearly militated in favor of this court approving the Adamsons' petition to adopt Abel. Mr. Adamson's criminal history, however, created an issue as to whether there existed a statutory bar to such approval. Mr. Adamson had a 1987 Washington D.C. conviction for simple assault and a 1992 Kings County (New York State) conviction for Robbery in the Third Degree. On November 24, 2009, pursuant to Social Services Law 378-a(2)(h), New York Foundling conducted a safety assessment of the conditions of the Adamson household. Based on the remoteness in time of his criminal convictions and the fact that in the years since the 1992 robbery conviction, Mr. Adamson had reformed his behavior and has led a productive life, the safety assessment reported that Mr. Adamson did not pose a safety concern to Abel. The assessment concluded that because "Mr. Adamson has been the sole father figure in Abel's life, [New York Foundling] strongly believes that it is in the best interest of the child to be adopted by Mr. and Mrs. Adamson."
In order to gain further understanding of the facts underlying Mr. Adamson's 1992 robbery conviction, the court obtained the criminal court complaint and a transcript of Mr. Adamson's guilty plea. The criminal complaint alleged that on November 27, 1991, in Kings County, Mr. Adamson hit the victim with an unknown blunt object about his head and face and took a bag containing money that the victim had been carrying.The blows allegedly knocked out the victim's front teeth, caused his nose to bleed, and resulted in his sustaining a separated shoulder. On February 3, 1992, having been promised a sentence of one and one-third to four years imprisonment, Mr. Adamson pled guilty to one count of Robbery in the Third Degree and admitted that, on November 27, 1991, when the owner of a store came out [of the store], he hit him, caused him to fall, took his bag containing money, and fled. The Family Court observed that prior to the 2008 amendment of SSL 378-a(2)(e), the court would have found that Mr. Adamson's 1992 robbery conviction did not automatically disqualify him from adopting Abel because denial of Mr. and Mrs. Adamson's petition to adopt would have created an unreasonable risk of harm to Abel's mental health and granting said petition would have been in Abel's best interest and would not have placed his safety in jeopardy. However, in 2008, in order to comply with the federal Adam Walsh Child Protection Act of 2006, see Public Law 109-248, New York State eliminated the language in SSL 378--a which only presumptively disqualified from becoming foster or adoptive parents those who had been convicted of certain felonies, and by doing so made automatic the disqualification of those prospective foster or adoptive parents who had been convicted of certain felonies. The Court held that Mr. Adamson's conviction in 1992 for Robbery in the Third Degree fell within the category of convictions which would automatically disqualify him from adopting Abel. SSL 378-a(2)(e)(1)(A) reads, in pertinent part, "an application for certification or approval of a prospective foster parent or prospective adoptive parent shall be denied where a criminal history record of the prospective foster parent or prospective adoptive parent reveals a conviction for: (A) a felony conviction at any time involving: (i) child abuse or neglect; (ii) spousal abuse; (iii) a crime against a child, including child pornography; or (iv) a crime involving violence, including rape, sexual assault, or homicide, other than a crime involving physical assault or battery. See also 18 NYCRR 421.27(d)(1); 42 USCA 671(a)(20)(A)(I); 45 C.F.R. 1356.30(b)(4). Since assault was specifically excluded from the above-cited provision and since Mr. Adamson's assault conviction was both a misdemeanor and occurred over five years ago, there was no doubt that, unlike the robbery conviction, the assault conviction fell within the category of convictions for which the court had discretion to approve or deny the petition to adopt. See SSL 378-a(2)(e)(3(A). Because robbery was not specifically mentioned in this provision, the court, therefore, found that Mr. Adamson's 1992 robbery conviction constituted a "crime involving violence. The fact that robbery is not specifically included in Social Services Law 378-a(2)(e)(1)(A)(iv) is not dispositive. Although this provision specifically includes rape, sexual assault and homicide and specifically excludes assault as crimes involving violence, there is nothing in either the legislative history of this provision or the state or federal regulations promulgated thereunder that would indicate that the listed crimes are exhaustive, and not merely illustrative, of crimes involving violence.
It was beyond cavil that Mr. Adamson had rehabilitated himself and that removal of Abel from this home would have a devastating impact upon Abel. Under the circumstances of this case, it was clear that to follow the strict mandate of the statute and deny Mr. and Mrs. Adamson's petition to adopt Abel and to remove Abel from the home of his maternal cousin and her husband-the only home he has ever known-based solely upon Mr. Adamson's 1992 robbery conviction, would deprive both Abel and the Adamsons of their due process right to an individualized determination of whether this adoption is in Abel's best interest. That right, to a case-specific determination, was firmly established almost forty years ago in Stanley v. Illinois, 605 U.S. 645(1972) when the United States Supreme Court struck down as violative of the Fourteenth Amendment, Illinois' irrebuttable statutory presumption that all unmarried fathers are unqualified to raise their children. The Court held that a hearing was required by the due process clause, upon the death of the mother and prior to the removal of the children, to determine whether the father was fit to raise the children. In so ruling, the Court opined, "procedure by [irrebuttable] presumption is always cheaper and easier than individualized determination. But when ... the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to fast formalities, it needlessly risks running roughshod over the important interests of both parent and child ... [and] therefore cannot stand." Based upon the due process clauses of the New York State and United States Constitutions, this court found that SSL 378-a(2)(e)(1) and 378-a(2)(h), as applied to the facts of this matter, violated Mr. and Mrs. Adamson's and Abel's right to a determination, based on the totality of the circumstances, as to whether the adoption of Abel by the Adamsons is in Abel's best interest. The court examined the totality of the circumstances presented and notwithstanding Mr. Adamson's criminal past, held that it was in Abel's best interest to be adopted by Mr. and Mrs. Adamson and granted the petition.
Method of Service Provided for in Order to Show Cause Is Jurisdictional
In Matter of Sharma v New, --- N.Y.S.2d ----, 2011 WL 4389744 (N.Y.A.D. 2 Dept.), in March 2010 the mother filed a petition and order to show cause to modify the overnight visitation provisions contained in an order dated January 14, 2010, alleging that the father violated that order by taking the subject child "to a different hotel than the one ... which he informed [the social worker] he would be using." In an order dated July 9, 2010, the Family Court, inter alia, granted the mother's petition so as to suspend the father's overnight visitation. The Appellate Division reversed. It observed that the method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with. Moreover, where the court orders service by a particular date, all components of service must be accomplished by that date. Here, the record did not contain any evidence establishing that the father was properly or timely served in compliance with the provisions of the order to show cause. Moreover, contrary to the contention of the attorney for the child, the father asserted the defense of lack of personal jurisdiction in his answer and did not waive the defense (see CPLR 3211[e]). Since personal jurisdiction was not obtained, the Family Court should have dismissed the proceeding.
Father Did Not Implicitly Consent to 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.
Friday, September 23, 2011
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.
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.
Wednesday, September 21, 2011
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
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
Wednesday, August 31, 2011
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.
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.
Subscribe to:
Posts (Atom)