Chief Administrative Judge Adopts New Rules for Matrimonial Actions

By Administrative Order A/O/100/17, 22 NYCRR §202.50 (b) was amended to add a new section 202.50 (b)(3).

The new section requires that every Uncontested and Contested Judgment of Divorce contain certain decretal paragraphs, including one concerning the venue where post judgment applications for modification or enforcement in Supreme Court should be brought. 22 NYCRR §202.50 (b)(3), which  is effective August 1, 2017, provides as follows:

202.50. Proposed Judgments in Matrimonial Actions; Forms

* * *

(b) Approved Forms.

* * *

(3) Additional Requirement with Respect to Uncontested and Contested

Judgments of Divorce. In addition to satisfying the requirements of

paragraphs (1) and (2) of this subdivision, every judgment of divorce,

whether uncontested or contested, shall include language substantially in

accordance with the following decretal paragraphs which shall supersede

any inconsistent decretal paragraphs currently required for such forms:

ORDERED AND ADJUDGED that the Settlement Agreement entered into

between the parties on the ___ day of ____, [ ] an original OR [ ] a

transcript of which is on file with this Court and incorporated herein by

reference, shall survive and shall not be merged into this judgment, * and

the parties are hereby directed to comply with all legally enforceable terms

and conditions of said agreement as if such terms and conditions were set

forth in their entirety herein; and it is further

* In contested actions, this paragraph may read either [shall survive and

shall not be merged into this judgment] or [shall not survive and shall be

merged into this judgment].

ORDERED AND ADJUDGED, that the Supreme Court shall retain

jurisdiction to hear any applications to enforce the provisions of said

Settlement Agreement or to enforce or modify the provisions of this

judgment, provided the court retains jurisdiction of the matter concurrently

with the Family Court for the purpose of specifically enforcing, such of the

provisions of that (separation agreement) (stipulation agreement) as are

capable of specific enforcement, to the extent permitted by law, and of

modifying such judgment with respect to maintenance, support, custody or

visitation to the extent permitted by law, or both; and it is further

ORDERED AND ADJUDGED, that any applications brought in Supreme

Court to enforce the provisions of said Settlement Agreement or to enforce

or modify the provisions of this judgment shall be brought in a County

wherein one of the parties resides; provided that if there are minor children

of the marriage, such applications shall be brought in a county wherein one

of the parties or the child or children reside, except. in the discretion of the

judge, for good cause. Good cause applications shall be made by motion or

order to show cause. Where the address of either party and any child or

children is unknown and not a matter of public record, or is subject to an

existing confidentiality order pursuant to DRL § 254 or FCA § 154-b, such

applications may be brought in the county where the judgment was entered;

and it is further

By Administrative Order A/O/99/17, 22 NYCRR §202 was amended to  add a new section 202.16-b.

The new section addresses the submission of written applications in contested matrimonial actions. 

The new rules contain limitations which are applicable to to the submission of papers on pendente lite applications for alimony, maintenance, counsel fees, child support, exclusive occupancy, custody and visitation unless the requirements are waived by the judge for good cause shown. Among other things, all orders to show cause and motions must be in Times New Roman, font 12 and double spaced. The supporting affidavit or affidavit in opposition or attorney affirmation in support or opposition or memorandum of law may not exceed twenty (20) pages. Any expert affidavit may not exceed eight (8) additional pages. Reply affidavits or affirmations may not exceed ten (10) pages. Surreply affidavits can only be submitted with prior court permission. 22 NYCRR 202.16 - b, which  is effective July  1, 2017, provides as follows:

§202.16-b Submission of Written Applications in Contested Matrimonial

Actions.

(1) Applicability. This section shall be applicable to all contested

matrimonial actions and proceedings in Supreme Court authorized by

subdivision (2) of Part B of section 236 of the Domestic Relations Law.

(2) Unless otherwise expressly provided by any provision of the CPLR or

other statute, and in addition to the requirements of 22 NYCRR §202.16 (k)

where applicable, the following rules and limitations are required for the

submission of papers on pendente lite applications for alimony,

maintenance, counsel fees, child support, exclusive occupancy, custody and

visitation unless said requirements are waived by the judge for good cause

shown:

(i) Applications that are deemed an emergency must comply with 22

NYCRR §202.7 and provide for notice, where applicable, in accordance with

same. These emergency applications shall receive a preference by the clerk

for processing and the court for signature. Designating an application as an

emergency without good cause may be punishable by the issuance of

sanctions pursuant to Part 130 of the Rules of the Chief Administrative

Judge. Any application designated as an emergency without good cause

shall be processed and considered in the ordinary course of local court

procedures.

(ii) Where practicable. all orders to show cause, motions or crossmotions

for relief should be made in one order to show cause or motion or

cross-motion.

(iii) All orders to show cause and motions or cross motions shall be

submitted on one-sided copy except as otherwise provided in 22 NYCRR

§202.5(at or electronically where authorized, with one-inch margins on

eight and one half by eleven (8.5 x 11) inch paper with all additional

exhibits tabbed. They shall be in Times New Roman font 12 and double

spaced. They must be of sufficient quality ink to allow for the reading and

proper scanning of the documents. Self-represented litigants may submit

handwritten applications provided that the handwriting is legible and

otherwise in conformity with these rules.

(iv) The supporting affidavit or affidavit in opposition or attorney

affirmation in support or opposition or memorandum of law shall not exceed

twenty (20) pages. Any expert affidavit required shall not exceed eight (8)

additional pages. Any attorney affirmation in support or opposition or

memorandum of law shall contain only discussion and argument on issues

of law except for facts known only to the attorney. Any reply affidavits or

affirmations to the extent permitted shall not exceed ten (10) pages. Surreply

affidavits can only be submitted with prior court permission.

(v) Except for affidavits of net worth (pursuant to 22 NYCRR §202.16

(b)), retainer agreements (pursuant to Rule 1400.3 of the Joint Rules of the

Appellate Division). maintenance guidelines worksheets and/or child

support worksheets, or counsel fee billing statements or affirmations or

affidavits related to counsel fees (pursuant to Domestic Relations Law §237

and 22 NYCRR §202.16(k))' all of which may include attachments thereto,

all exhibits annexed to any motion, cross motion, order to show cause,

opposition or reply may not be greater than three (3) inches thick without

prior permission of the court. All exhibits must contain exhibit tabs.

(vi) If the application or responsive papers exceed the page or size

limitation provided in this section, counsel or the self-represented litigant

must certify in good faith the need to exceed such limitation, and the court

may reject or require revision of the application if the court deems the

reasons insufficient.

(3) Nothing contained herein shall prevent a judge or justice of the court or

of a judicial district within which the court sits from establishing local part

rules to the contrary or in addition to these rules.

By Administrative Order A/O 102/17, the Uncontested Divorce Packet Forms were modified to reflect the increases as of March 1, 2017 in the Self Support Reserve to $16,281 and in the Poverty Level Income for a single person to $12,060.

(see https://childsupport.ny.gov/dcse/child_support_standards.html).

               

Parties May Chart Their Own Litigation Course by Agreement Which Courts Are Bound to Enforce. Waiver of Physician-patient Privilege in Contesting Custody Requires Showing That Resolution of Custody Issue Requires Revelation of Protected Material

        In Bruzzese v Bruzzese, --- N.Y.S.3d ----, 2017 WL 2961475, 2017 N.Y. Slip Op. 05579 (2d Dept., 2017) the plaintiff commenced an action for a divorce, and the defendant counterclaimed for a divorce. Prior to trial, the parties stipulated to a divorce on the ground of an irretrievable breakdown of the marital relationship pursuant to Domestic Relations Law § 170(7). After a nonjury trial, the Supreme Court, inter alia, awarded the defendant a divorce on the ground of cruel and inhuman treatment. The Appellate Division held that  Supreme Court erred in awarding the defendant a divorce on the ground of cruel and inhuman treatment. "Parties by their stipulations may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce" (Matter of New York, Lackawanna & W. R.R. Co., 98 N.Y. 447, 453). There was no showing of cause sufficient to invalidate the parties' stipulation to a divorce on the ground of an irretrievable breakdown of the marital relationship. Accordingly, the court should have awarded the defendant a divorce on this ground.

        The Appellate Division found, inter alia, that the Supreme Court, relying on the physician-patient privilege, improperly precluded testimony of two witnesses who were doctors, regarding the defendant's mental health. It noted that in a matrimonial action, a party waives the physician-patient privilege concerning his or her mental or physical condition by actively contesting custody. However, there "first must be a showing beyond mere conclusory statements that resolution of the custody issue requires revelation of the protected material" (McDonald v. McDonald, 196 A.D.2d 7, 13; see Baecher v. Baecher, 58 A.D.2d 821). Since the defendant actively contested custody, and the plaintiff made the requisite showing that resolution of the custody issue required revelation of the protected material, the court should not have precluded the testimony of the doctors regarding the defendant's mental health.

Authors note: In McDonald v. McDonald, 196 A.D.2d 7, 13 (2d Dept.,1994) the Second Department adopted the requirement of Perry v Fiumano, 61 AD2d 512, 519 that before the court may find that there has been a waiver of the physician-patient privilege "[t]here first must be a showing beyond 'mere conclusory statements' that resolution of the custody issue requires revelation of the protected material" (Perry v Fiumano, 61 AD2d 512, 519).

Where Stipulation Fails to Identify Who Submits QDRO it Is Generally the Responsibility of the Party Seeking Approval of QDRO

               In Scheriff v Scheriff, --- N.Y.S.3d ----, 2017 WL 3044528, 2017 N.Y. Slip Op. 05760 (2d Dept., 2017) the parties stipulation provided that the defendant was entitled to 50% of the marital portion of the plaintiff’s pension and  that the parties were to cooperate with each other in obtaining a Qualified Domestic Relations Order (QDRO) to divide the pension, that they would equally share the cost of preparing the QDRO, and that the defendant’s share would be determined pursuant to the formula set forth in Majauskas v. Majauskas (61 N.Y.2d 481). The defendant moved, inter alia, “for a set-off against plaintiff’s entitlement to his equity share of the former marital home in an amount equal to all monies owed for QDRO arrears. Supreme Court denied the motion and directed the defendant to prepare and submit “an appropriate Domestic Relations Order.” The Appellate Division affirmed. It observed that under the defendant was entitled to her equitable share of the plaintiff’s pension and that payment of her share was to be effectuated through the submission of a QDRO. Although the stipulation failed to identify the party who would be responsible for submitting the QDRO, “it is generally the responsibility of the party seeking approval of the QDRO to submit it to the court with notice of settlement” (Kraus v. Kraus, 131 AD3d at 101). Thus, the defendant should have prepared and submitted a proposed QDRO to the Supreme Court with a copy to the defendant’s employer. In the absence of a QDRO, there were no “QDRO arrears.”

Child in a Custody Matter Does Not Have “Full-party” Status and Cannot Appeal from Denial of Mothers Modification Petition Where She Does Not Appeal.

          In Matter of Lawrence v Lawrence, --- N.Y.S.3d ----, 2017 WL 2604311 (Mem), 2017 N.Y. Slip Op. 05023 (4^th Dept., 2017) the Appellate Division dismissed the appeal taken by the Attorney for the Child representing the parties’ oldest child from an order dismissing the mother’s petition seeking modification of a custody order. Inasmuch as the mother had not taken an appeal from that order, the child, while dissatisfied with the order, cannot force the mother to litigate a petition that she has since abandoned. It held that a child in a custody matter does not have “full-party status” (Matter of McDermott v. Bale, 94 AD3d 1542, 1543), and it  declined to permit the child’s desires to chart the course of litigation.

Testimonial Evidence is not sufficient to overcome marital property presumption

               In Schacter v Schacter, --- N.Y.S.3d ----, 2017 WL 2366242, 2017 N.Y. Slip Op. 04372 (1^st Dept., 2017) the Appellate Division held that Plaintiff’s brief testimony that a piano was gifted to him during the marriage did not suffice to overcome the marital property presumption; thus, the court properly deemed the piano marital property to be sold and the net proceeds divided equally between the parties (see DRL § 236[B][1][c]; Bernard v. Bernard, 126 AD3d 658, 659 [2d Dept 2015])