August 1, 2019
Recent
Legislation
Unlawful dissemination or publication of an intimate
image added to Family Court Act §812
Laws of 2019, Ch 109 added
the crime of unlawful dissemination or publication of an intimate image to the
Penal Law as § 245.15 effective September 21, 2019. It amended Family Court Act
812 to include it in the list of crimes that constitute a family offense and
added it to Criminal Procedure Law 530. 11 The Civil Rights Law was amended to add new cause of
action, in Civil Rights Law § 52–b titled Private right of action for unlawful
dissemination or publication of an intimate image. It provides, among other
things, that any person depicted in a
still or video image, regardless of whether or not the original still or video
image was consensually obtained, shall have a cause of action against an individual
who, for the purpose of harassing, annoying or alarming such person,
disseminated or published, or threatened to disseminate or publish, such still
or video image, where such image: was taken when such person had a reasonable
expectation that the image would remain private; and depicts (i) an unclothed or exposed intimate
part of such person; or (ii) such person engaging in sexual conduct, as defined
in subdivision ten of section 130.00 of the penal law, with another person; and
was disseminated or published, or threatened to be disseminated or published,
without the consent of such person.
Recent
Articles of Interest
The Special Section on Matrimonial Law in the July 29,
2019 edition of the New York Law Journal contains an article by Joel R. Brandes
titled “Inchoate Rights to Marital Property.” It appears on page 55, and is
also in the online edition. Click here to read the article
“Enforcing
Counsel Fee, Support and Distributive Awards by Execution of Judgment,”
by Joel R. Brandes appeared in the July 18, 2019 edition of the New York
Law Journal. Click here to read the article.
“What
is the Status of Child in a Custody Case?” by Joel R. Brandes
appeared in the July 8, 2019 edition of the New York Law Journal. Click here to read the article
Appellate
Division, First Department
Interstate
Compact for the Placement of Children (ICPC), codified in Social Services Law ' 374Ba, does not apply to out‑of‑state
noncustodial parents
In Matter of Emmanuel B, ‑‑‑ N.Y.S.3d ‑‑‑‑,
2019 WL 3146376, 2019 N.Y. Slip Op. 05640 (1st Dept., 2019) the
Appellate Division held, as a matter of first impression for the Court,
that the Interstate Compact for the
Placement of Children (ICPC), codified in Social Services Law '
374Ba, does not apply to out‑of‑state noncustodial
parents.
The
Administration for Children=s Services (ACS) filed a petition alleging that
Lynette J. (mother) had neglected two‑year‑old Emmanuel (child). The petition
further alleged that the mother slapped and bit the child, and left him
unsupervised for long periods of time. The child, who had been residing with
the mother at a New York City Department of Social Services facility, was
subsequently removed from the mother=s care and placed in the custody of ACS. ACS directly
placed the child in the home of his paternal aunt. The nonparty Andrell B.
(father), who resided in New Jersey, filed a petition for custody of the child.
The Family Court denied custody, due to the father=s
residence in New Jersey, but ordered that the father have liberal visitation
with the child. The father filed an order to show cause, seeking an order to
have the child immediately released into his care. According to the father, he
had resided with the mother and the child for the first six months of the child=s
life, and had visited the child every weekend after he and the mother
separated. The parties appeared in Family Court. ACS conceded that it did not
have any concern about the child residing with the father in that it had no
reason to believe that the father was unfit or abusive or that he posed any
imminent harm to the child. However, ACS stated that it believed that as the
father resided in New Jersey, compliance with the ICPC was mandatory and any
placement was predicated on ICPC approval. The Family Court denied the father=s
application and issued an order remanding the care and custody of the child to
the Commissioner of Social Services. The court concluded that the ICPC process
had to be completed and the placement approved prior to granting the father
custody as the child was in the legal custody of the Commissioner of Social
Services, and subject to the continuing jurisdiction of Family Court. According
to the court, the father Aas a non‑custodial, non‑resident parent, does not have
custody or possession of the child as a matter of parental right@
and Arequires parental authority to be conferred on him by
the state.@
The
Appellate Division observed that the ICPC, codified in Social Services Law '
374Ba, is a statutory agreement with the express purpose
of fostering cooperation and communication between all 50 states so that
children requiring placement in another state Ashall
receive the maximum opportunity to be placed in a suitable environment and with
persons or institutions having appropriate qualifications and facilities to
provide a necessary and desirable degree and type of care@
(Social Services Law ' 374Ba, Article I). The ICPC=s
provisions are to be Aliberally construed to effectuate the purposes thereof@
(Social Services Law ' 374Ba, Article X). With respect to the conditions of a
child=s placement in another state, Article III of the ICPC
provides as follows: A(a) No sending agency shall send ... into any other
party state any child for placement in foster care or as a preliminary to a
possible adoption unless the sending agency shall comply with each and every
requirement set forth in this Article.... A(b) Prior to sending ... any child ... into a
receiving state for placement in foster care or as a preliminary to a possible
adoption, the sending agency shall furnish the appropriate public authorities
in the receiving state written notice ...@ (emphasis added). The ICPC does not apply to A[t]he
sending or bringing of a child into a receiving state by his parent, step‑parent,
grandparent, adult brother or sister, adult uncle or aunt, or his guardian and
leaving the child with any such relative or non‑agency guardian in the
receiving state@ (Social Services Law '
374Ba, Article VIII). The language explicitly limits its
applicability to out‑of‑state placements in foster care or as a preliminary to
a possible adoption (see Social Services Law '
374Ba).
The
Appellate Division found, based on the plain language of Article III of the
ICPC, the conditions for placement were expressly aimed at placements in foster
care or adoptive settings. While the ICPC makes an exception for a parent or
relative who takes a child over state lines (see Social Services Law '
374Ba, Art VIII), by limiting the purview of placement
conditions in article III to foster care and adoptive situations, the ICPC
clearly did not contemplate the issue, where an out‑of‑state parent is seeking
custody. It noted that in 2011, the Association of Administrators of the
Interstate Compact on the Placement of Children (AAICPC), the official body
charged with implementing the ICPC, amended Regulation 3(2)(a) to extend the
statute=s reach to include placements with out‑of‑state
noncustodial parents. The Court found that Regulation 3 does not carry the
force of law (see Weiss v. City of New York, 95 N.Y.2d 1, 4B5
[2000]). The First Department declined to follow the interpretation of the
Second Department which held that the ICPC applies to a nonrespondent parent
living outside of New York (Matter of Alexus M. v. Jenelle F., 91 AD3d at 650B51;
Matter of Tumari W., 65 AD3d at 1360) , because, in its opinion, it conflicts with the plain meaning
of the statute and is in contravention of its legislative history. The order
appealed from was vacated.
Appellate Division,
Second Department
Child is not
aggrieved by order which does not grant or deny any relief. Mere fact that an
order contains language or reasoning that a party deems adverse to its
interests does not furnish >a basis for standing to take an appeal
In
Lugo v Torres, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 3046162, 2019 N.Y. Slip Op. 05523 (2d
Dept., 2019) the parties were married in July 2006 and had two minor children,
Liya L. and Emery L. On June 8, 2012, the plaintiff commenced this action for a
divorce. Over time, the plaintiff was awarded increasing access to the parties=
children. Pursuant to an interim order of custody and parental access entered
August 20, 2013, the plaintiff was awarded unsupervised parental access. In a
decision after trial dated December 20, 2017, the Supreme Court, inter alia,
modified the interim school year parental access schedule. The court awarded
the parties joint legal custody, with final decision‑making authority to the
defendant, after consultation with the plaintiff and assistance from a
parenting coordinator, including on the issue of the children=s
enrollment in summer camp. A judgment
of divorce was entered on March 13, 2018, which incorporated the decision dated
December 20, 2017. The defendant subsequently moved, inter alia, to hold the
plaintiff in civil contempt for failure to comply with the judgment of divorce.
The plaintiff cross‑moved, inter alia, to resettle the judgment of divorce. In
an order entered July 16, 2018, the Supreme Court denied the defendant=s
motion and the plaintiff=s cross motion. The plaintiff appealed from stated
portions of the judgment of divorce and from part of the order entered July 16,
2018. The child Liya L. cross‑appealed from so much of the July 16, 2018 order,
as re‑stated the provision, incorporated into the judgment of divorce, that the
defendant had final decision‑making authority regarding that child=s
summer camp.
The
Appellate Division held that the cross appeal by the child Liya L. from the
order entered July 16, 2018, had to be dismissed, on the ground that she was
not aggrieved by that order. The portion of the order from which the child
appealed did not grant or deny any
relief, and the mere fact that an order Acontains language or reasoning that a party deems
adverse to its interests does not furnish >a basis for standing to take an appeal= @
(Castaldi v. 39 Winfield Assoc., LLC, 22 A.D.3d 780, 781, 803 N.Y.S.2d 716,
quoting Pennsylvania Gen. Ins. Co. v. Austin Powder Co., 68 N.Y.2d 465, 472B473,
510 N.Y.S.2d 67, 502 N.E.2d 982).
Presentation of
rebuttal evidence rests within the sound discretion of the court,
In
Matter of Gerner v Stalvey, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 3046099, 2019 N.Y. Slip
Op. 05529 (2d Dept., 2019) the Appellate Division affirmed an order which awarded
the mother custody of the party’s child and granted her permission to relocate
to South Carolina. It agreed with the Supreme Court=s
determination to preclude the father from presenting a rebuttal case during the
hearing. It held that the presentation of rebuttal evidence rests within the
sound discretion of the court, and the court=s
determination in that regard should not be disturbed on appeal absent an
improvident exercise of discretion (see Farrell v. Gelwan, 30 A.D.3d 563, 564,
817 N.Y.S.2d 143). Based on the father=s offer of proof to the court, the rebuttal evidence
either should have been presented on his direct case, or was collateral to the
issues to be decided.
Appeal by the
nonparty child from order which held plaintiff in civil contempt for failure to
comply with an order requiring the plaintiff to pay the defendant counsel fees
dismissed as she was not aggrieved by the order appealed
In
Lugo v Torres, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 3046149 (Mem), 2019 N.Y. Slip Op.
05525 (2d Dept.,2019) the plaintiff appealed, and the nonparty child Liya L.
separately appealed, from an order of the Supreme Court, which held the
plaintiff in civil contempt for failure to comply with an order entered April
13, 2018, requiring the plaintiff to pay the defendant counsel fees of $193,549
within 30 days of the date of the order, and directed him to be imprisoned for
30 days, as may be extended, or until he had paid the arrears owed to the
defendant for counsel fees. The Appellate Division dismissed the appeal by the
child as she was not aggrieved by the order appealed from (see CPLR 5511; Edgar
S. v. Roman, 115 A.D.3d 931, 982 N.Y.S.2d 529). It observed that unlike matters
involving, for instance, custody and parental access, where a child=s
interest in the outcome of the litigation is so immediate and substantial as to
be self‑evident (see Matter of Newton v. McFarlane, BBB A.D.3d BBBB, BBB N.Y.S.2d BBBB, 2019 N.Y. Slip Op. 04386). It could not discern what
possible interest a young child might have in the outcome of a purely financial
dispute between her parents centered around one parent=s
failure to pay the other=s counsel fees.
Motion to
enforce settlement agreement, incorporated but not merged into the judgment of
divorce is not subject to statute of limitations applicable to breach of
contract actions
In
Brewster v Anthony-Brewster, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 3046291 (Mem), 2019
N.Y. Slip Op. 05510 (2d Dept.,2019) the Appellate Division held that a motion
which was to enforce so much of a settlement agreement, which was incorporated
but not merged into the judgment of divorce is not subject to the statute of
limitations applicable to breach of contract actions (see Denaro v. Denaro, 84
A.D.3d 1148, 924 N.Y.S.2d 453; Bayen v. Bayen, 81 A.D.3d 865, 917 N.Y.S.2d 269;
Fragin v. Fragin, 80 A.D.3d 725, 916 N.Y.S.2d 783).
Not appropriate
to apply the statute of limitations applicable to Aan action based upon fraud@ under CPLR 213(8) in proceeding to vacate
an acknowledgment of paternity on the grounds of fraud, duress, or material
mistake of fact
In
Matter of Vaskovtsev v Melska, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 3044174, 2019 N.Y.
Slip Op. 05551 (2d Dept.,2019) on June 21, 2007, the parties purportedly
executed an acknowledgment of paternity, stating that the petitioner was the
father of the child. In April 2016, the mother filed a petition for child
support against the petitioner. In June 2016, the petitioner commenced a
proceeding pursuant to Family Court Act ' 516Ba to vacate the acknowledgment of paternity, alleging
that his signature on the acknowledgment was forged. The mother moved pursuant
to CPLR 3211(a) to dismiss the petition to vacate arguing, among other things,
that the proceeding was time‑barred and that the petitioner should be equitably
estopped from denying paternity. The Support Magistrate denied the mother=s
motion. Family Court denied the mother=s objections.
The
Appellate Division agreed with the Family Court=s
determination that the proceeding was
not time‑barred and that a hearing had to be held on the issue of whether the
father was entitled to vacatur of the acknowledgment of paternity on the ground
of fraud (see Matter of Santos Ernesto R. v. Maria S.C., 66 A.D.3d 910, 911B912,
887 N.Y.S.2d 265), A signatory to an
acknowledgment of paternity who was at least 18 years old at the time of
execution may file a petition to vacate the acknowledgment within the earlier
of 60 days of the date of execution or the date of a proceeding relating to the
subject child in which the signatory is a party (see Family Ct. Act '
516Ba[b][i]). Further, after the expiration of the time
limit, any of the signatories to an acknowledgment of paternity may challenge
the acknowledgment in court by alleging and proving fraud, duress, or material
mistake of fact@ (Family Ct. Act ' 516Ba[b][iv]). The procedure for
commencing a proceeding to vacate an acknowledgment of paternity was
specifically set forth by the Legislature, which chose to include an exception
to the 60Bday time limit to commence a
proceeding where the petitioner seeks to vacate an acknowledgment of paternity
on the grounds of fraud, duress, or material mistake of fact (see Family Ct.
Act ' 516Ba[b][i],
[iv]). Therefore, it would not be appropriate to apply the statute of
limitations applicable to Aan action based upon fraud@ under CPLR
213(8).
It also agreed with the Family Court that
dismissal of the petition was not warranted at this time based upon the
doctrine of equitable estoppel. Family Court should not entertain an estoppel
issue untilAafter it has found a basis to permit vacatur of the
acknowledgment. Consideration of the issue of whether the father should be
estopped from vacating the acknowledgment was premature.
Family Court Act ' 439(e),
concerning the filing of objections, does not apply a determination of a
support magistrate recommending incarceration
In Matter of Garuccio v Curcio, ‑‑‑
N.Y.S.3d ‑‑‑‑, 2019 WL 3310159, 2019 N.Y. Slip Op. 05777 (2d Dept.,2019) the
Appellate Division agreed with Family Court=s
determination confirming the Support Magistrate=s
recommendation that the father be incarcerated without holding a second hearing
and before the time for him to file objections had expired. It observed that
Family Court Act '
454(3)(a) provides that if the court finds that a respondent willfully failed
to obey an order of support, the court may commit the respondent to jail for a
term not to exceed six months. The mother established her case of willful
violation. The Family Court was not required to hold a second hearing before
issuing the order. The father was given a full and fair opportunity to be heard
at the hearing on his defense to the claim of willfulness. Upon the father=s
failure to appear for a scheduled court date on May 1, 2018, the court did not
improvidently exercise its discretion in confirming the recommendation of the
Support Magistrate that the father be incarcerated (see Matter of John T. v.
Olethea P., 64 A.D.3d 484, 883 N.Y.S.2d 38). Furthermore, the Family Court was
under no obligation to wait until the father=s
time to file objections pursuant to Family Court Act '
439(e) had expired to confirm the Support Magistrate=s
recommendation of incarceration. Thus, the determination of the Support
Magistrate recommending incarceration had no force and effect until confirmed.
Since a determination of a support magistrate recommending incarceration can
have no force and effect until confirmed, and could never constitute a final
order, the procedure under Family Court Act '
439(e) concerning the filing of objections does not apply (see Matter of Roth
v. Bowman, 245 A.D.2d 521, 666 N.Y.S.2d 695).
Appellate
Division, Third Department
Appellate
Divison sustains agreement provision that if either party seeks to modify the
agreement, the party seeking modification must reconvey all consideration which
such party had received pursuant to the agreement.
In
Matter of Yerdon v Yerdon, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 3226535, 2019 N.Y. Slip
Op. 05748 (3d Dept.,2019) the parties entered into a settlement agreement
(hereinafter the agreement), in which the parties agreed to opt‑out of the
Child Support Standards Act. They agreed that the mother would waive her right
to child support from the father, in return for which the father agreed to
convey his half interest in the marital residence to the mother. The agreement
provided that if either party sought to modify the agreement, the party seeking
modification Ashall, in advance of and as a condition precedent to
the commencement of such action or proceeding, retransfer, reconvey, return,
reassign and repay to the other party all assets, income, payments, or other
transfers or consideration which such party had received pursuant to [the]
agreement.@ This agreement was incorporated, but not merged, with
a judgment of divorce entered April 15, 2016. In August 2017, the mother
commenced a proceeding in Family Court to modify the child support provisions
of the judgment of divorce. The father moved in the Supreme Court to compel the
mother to return to him the money and the interest in the marital home that she
received under the agreement. Supreme Court dismissed the mother=s
petition, finding that the agreement was enforceable and the mother failed to
meet the condition precedent prior to filing for modification. The Appellate
Division affirmed. It rejected the mother=s contention that the agreement was unenforceable
because it did not contain the language specified in Domestic Relations Law '
236(B)(7)(d). Assuming, without deciding, that such language must be included
in a settlement agreement, such infirmity would not void the entire agreement.
Rather, it would serve as a ground to modify the agreement to include the
relevant language.
Supreme Court
Supreme Court
holds that Domestic Relations Law 170(7) is not a Acause of action@ under DRL ' 230(3), such that the durational residency requirement was reduced
from two (2) years to one (1) year.
In
Patty P v Jason P, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 3242691, 2019 N.Y. Slip Op. 29223
(Sup. Ct., 2019) Supreme Court dismissed the divorce action filed by the
plaintiff on the grounds that the Court did not have jurisdiction over the
proceeding pursuant to DRL ' 230 and CPLR 302(b). Supreme Court found that during
the parties= marriage, they had five (5) matrimonial domiciles
none of which were New York State. They spent six (6) years of their marriage
in Oklahoma until July 2017. Defendant still resided in Oklahoma. Plaintiff
contended that she left the matrimonial domicile in Oklahoma in July 2017 and
moved to New York State where, she alleged, she has resided continuously ever
since. Plaintiff alleged that after she left Oklahoma, she spent time in a Asafe
house@ then moved to Brooklyn, New York. She filed the
action in February 2019. In her Verified Complaint plaintiff alleged that she
had been a resident of New York for at least two (2) years continuously
immediately before the commencement of the action. The Court observed that
based upon plaintiff=s filing, she would have had to have been a resident
of New York State by February 6, 2017 in order to satisfy the two (2) years of
continuous residence immediately before the commencement of the action. In her
affidavit in opposition to defendant=s motion to dismiss, plaintiff alleged that she had
been a resident of New York State for one (1) year and that DRL 170(7) is a Acause
of action@ sufficient to trigger DRL '
230(3).
Supreme
Court held that Domestic Relations Law 170(7) is not a Acause
of action@ and granted the motion to dismiss. It noted that in
Stancil v. Stancil, 47 Misc.3d 873, 1 N.Y.S.3d 917 [Sup. Ct. 2015] the Supreme
Court held that DRL ' 170(7), did not create a Acause@
under DRL ' 230(3), such that the residency requirement was reduced
from two (2) years to one (1) year. The Court agreed and held that if it
adopted plaintiff=s theory that the DRL '170(7)
Airretrievable breakdown@
in the marital relationship was a cause of action sufficient to satisfy DRL '
230(3) the Court would be reducing the general residency requirement to seek a
divorce in New York State from two (2) years to one (1) year contrary to the
legislative intent and, in effect, by judicial fiat. The legislature did not
enact changes to DRL ' 230 concomitants with the enactment of the Airretrievable
breakdown@ provision provided for in DRL '
170(7). The Court could not and should not extend or modify the residency
requirement established by the Legislature in the statute. The Court held that
in light of her conflicting statements and lack of documentary evidence,
plaintiff had not satisfied any statutory predicate of DRL '
230. The parties= marriage did not occur in this State, this State was
not a matrimonial domicile, and no cause of action occurred in New York. Plaintiff
failed to establish that she had standing to commence this action for divorce
under DRL ' 230.
July 16, 2019
Appellate
Division, First Department
22 NYCRR Part
1400 may be waived
In
Strauss v Strauss, 2019 WL 2619942 (1st Dept.,2019) the Appellate
Division observed that compliance with 22 NYCRR Part 1400 may be waived by the
client (see Rivacoba v. Aceves, 110 A.D.3d 495, 973 N.Y.S.2d 585 [1st Dept.
2013]).
Appellate
Division, Second Department
Biological
father of child conceived with anonymous egg donor and born to gestational
surrogate may adopt child and terminate parental rights held by surrogate
In
Matter of John, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 2607522, 2019 N.Y. Slip Op. 05132
(2d Dept.,2019) the issue presented on appeal was whether the biological father
of a child conceived with an anonymous egg donor and born to a gestational
surrogate may adopt the child and thereby terminate any parental rights held by
the gestational surrogate. The Appellate Division held that under the
circumstances presented by this case, the adoption could proceed. Contrary to
the determination of the Family Court, the proposed adoption was authorized by
the governing statute and was consistent with the underlying legislative
purposes.
The
appellant was a single, gay man who, in 2012 had embryos created using his
sperm and eggs from an anonymous egg donor. The egg donor relinquished all
rights to the eggs and any resulting children. The appellant had some of the
embryos implanted in an unpaid gestational surrogate. The remaining embryos
were frozen. In 2013, twins were born. The appellant adopted them, obtaining an
order of adoption from the Family Court. In 2017, a friend of his agreed to
carry the remaining embryos and entered into a surrogacy agreement with the
appellant. They agreed that the appellant would adopt the child from the
surrogate and thereby relieve her of any responsibility for the child. A
fertility clinic implanted two embryos into the gestational surrogate. One
embryo was unsuccessful. The other embryo resulted in the birth of the child,
John, in October 2017. John had been in the care of the appellant since leaving
the hospital after his birth. The birth certificate listed the surrogate as the
mother and did not list a father. The appellant filed a petition to adopt the
child. The surrogate executed an extrajudicial consent, utilizing the
statutorily‑mandated form, to the adoption, surrendering her parental rights
(see Domestic Relations Law '' 111[1][c]; 115Bb). The surrogate also submitted affidavits in which
she described the circumstances of the child=s
conception and birth and averred that she voluntarily agreed to have the
appellant be the sole parent of the child and that, in effect, there were no
other persons who had, or claimed to have, any parentage rights with respect to
the child. Family Court dismissed the adoption petition, holding, inter alia,
that permitting the adoption would validate Aa
patently illegal surrogacy contract@ and there was no authority for a parent to adopt his
or her own biological child.
The
Appellate Division held that dismissal of the adoption petition because it
would validate Aa patently illegal surrogacy contract@
was plainly erroneous. New York=s present public policy is that all surrogate
parenting contracts are against public policy and are void and unenforceable
(see Domestic Relations Law ' 122). The agreement made by the appellant was within
the statutory proscription. However, that did not end the discussion. The
Legislature has restricted active measures for a one‑time violation of the
expressed public policy to the imposition of civil penalties only and, even at
that, only as against those involved in commercial surrogacy contracts. The
only sanction against unpaid surrogacy contracts is to treat them as void and
unenforceable.
The
Legislature, though it declared surrogate parenting contracts to be against
public policy, recognized the prospect that, notwithstanding its declaration,
parties might proceed to enter into such contracts and that children would be
born as the result of such contracts. Domestic Relations Law '
124 states that, in any action or proceeding Ainvolving
a dispute between the birth mother@ and one or more genetic parents or grandparents Aregarding
parental rights, status or obligations with respect to a child born pursuant to
a surrogate parenting contract ... the court shall not consider the birth
mother=s participation in a surrogate parenting contract as
adverse to her parental rights, status, or obligations@
(Domestic Relations Law ' 124[1]). This statute Asimply
provides that the gestational carrier=s participation in a surrogate parenting contract
should not be held against her@ where there is a dispute regarding parentage. Where,
as here, there is no dispute because the genetic and gestational parents are in
agreement with respect to the legal parentage of the child, the protection of
the gestational mother contemplated in Domestic Relations Law '' 122 and 124 is not implicated. The Legislature also made provision for
the gestational surrogate to validly terminate her parental rights to a child
born of a surrogate parenting contract. The statute expressly provides that a
gestational surrogate may execute Aa valid surrender or consent to the adoption@
(Domestic Relations Law ' 124[2]). Thus, it was plain that the fact that a
child was born as the result of an unenforceable surrogacy agreement did not
foreclose an adoption of the resulting child, upon the surrogate=s
consent.
The
Appellate Division held that Family Court should not have viewed the adoption
petition presented by the appellant as requiring the court to validate or
enforce a surrogate parenting contract. The appellant was not seeking to have
the surrogate parenting contract specifically enforced or otherwise seeking a
remedy for a purported breach of the contract. The contract had been performed
and a child conceived and born on account of it. The court was asked only to
approve an adoption which had been agreed to, by use of a statutorily‑prescribed
mechanism and form, by the gestational mother, exercising her right to do so as
expressly recognized by governing statute.
The
Appellate Division observed that the adoption statute specifies the categories
of persons who may adopt a child. It states that A[a]n
adult unmarried person, an adult married couple together, ... any two unmarried
adult intimate partners together,@ or a formally separated person may adopt another
person (id.). (Domestic Relations Law ' 114[1]). The appellant here, as an Aadult
unmarried person,@ was among those who are statutorily authorized to
adopt a child. That he fit within the statutory definition was not, however,
conclusive, as loyalty must be to the statute=s
legislative purpose. Here, the appellant, an otherwise qualified Aadult
unmarried person,@ sought to adopt a child in order to gain legal and
social recognition for the parent/child relationship already existing between
himself and the child. The Family Court disallowed it on the ground that there
is no authority for a parent to adopt his or her biological child. The
Appellate Division disagreed. The blanket prohibition, invoked by the Family
Court, against legal adoption of a child by a biological parent, is not
supported by either the language of the statute or its purpose. There is
nothing in the text of the Domestic Relations Law which precludes a parent from
adopting his or her own biological child.
Domestic Relations Law ' 110 expressly provides that A[a]n
adult or minor married couple together may adopt a child of either of them born
in or out of wedlock.@ Thus, the statute expressly provides that a married
person may adopt his or her own child together with his or her spouse, and does
not limit the couple to a second‑parent adoption.
The
Appellate Division distinguished Matter of Zoe D.K., 26 A.D.3d 22, 804 N.Y.S.2d
197, which held that an unwed biological mother could not adopt her own child
so as to remove the biological father from the birth certificate. As the
Appellate Division, Fourth Department, viewed it, the adoption did not provide A >a
means of securing the best possible home= @ for the child. The situation here was significantly
different. Since the adoption statute permits adoption by an unmarried adult,
an adoption which results in the child having only one legal parent is not
against the language or purpose of the adoption statute. Moreover, the
continuity of a fictitious family structure whereby a gestational surrogate
with no genetic ties or intention to be a parent remains a legal parent is
hardly consonant with a child=s best interests. Thus, under the circumstances
presented, the adoption of one=s biological child from a gestational surrogate
complied with the purpose of the adoption statute and should be permitted where,
as in all adoption cases generally, the proposed adoption in the best interests
of the child.
Direct
examination of adverse party called as a witness, by leading questions, rests
in the sound discretion of trial court.
In
Matter of Argila v Edelman, --- N.Y.S.3d ----, 2019 WL 2843931, 2019 N.Y. Slip
Op. 05398 (2d Dept., 2019) the Appellate Division held, among other things,
that as a custody determination depends to a great extent upon an assessment of
the character and credibility of the parties and witnesses, the character and
credibility findings of the Family Court will not be disturbed unless they lack
a sound and substantial basis in the record. Here, the court’s determination
had a sound and substantial basis in the record, as the father established that
there had been a change in circumstances, such that modification of the
stipulation so as to award the parties joint legal custody was necessary to
ensure the best interests of the child (see Matter of Carter v. Carter, 111
A.D.3d 715, 715, 974 N.Y.S.2d 545).
The Appellate Division rejected the mother’s argument
that Family Court improperly restricted her examination of the father as part
of her direct case by refusing to permit her to use leading questions. While an
adverse party who is called as a witness may be viewed as a hostile witness and
direct examination may assume the nature of cross-examination by the use of
leading questions, whether to permit such questions over objection is a matter
which rests in the [sound discretion of the trial court. The mother already had
the opportunity to cross-examine the father using leading questions when he
testified as part of his own direct case. In any event, the father was “not
reluctant or evasive in answering questions” mother’s counsel asked many
leading questions despite the court’s ruling, and to the extent objections were
sustained, the mother, on appeal, identified no instance in which she was
unable to elicit necessary information without the use of leading questions.
Thus, it agreed with the Family Court’s determination to deny the mother’s
requests to conduct direct examination of the father through the use of leading
questions.
Appellate
Division, Third Department
Exclusion of
testimony in custody case, as to father’s fitness as a parent, constituted
denial of procedural due
process
In
Matter of Liska J v Benjamin K, --- N.Y.S.3d ----, 2019 WL 2835000, 2019 N.Y.
Slip Op. 05347 (3d Dept., 2019) following a trial Family Court awarded the
parties joint legal custody, with the mother having primary physical custody.
The father argued on appeal that he was deprived of procedural due process when
Family Court excluded testimony as to his fitness as a parent. The Appellate
Division noted that Family Court expressly held that because the father did not
file a custody petition, it could “only take into consideration the testimony
brought by the mother.” There were several instances during the trial where the
court precluded testimony from the father and his witness because he did not
file a petition. As a result, the father was prevented from addressing all of
the relevant factors, including who should be the primary custodian and what he
did to foster a relationship between the child and the mother. The father’s
stepfather was precluded from testifying as to his observations of the father
as a parent. The father was allowed to briefly testify as to his average day
with the child at the conclusion of testimony on March 29, 2017. When testimony
resumed on March 31, 2017, the court precluded further testimony as to the
average day, allowed a brief statement as to inside activities and then
sustained an objection as to outside activities. The Appellate Division held
the court’s failure to allow the father a full and fair opportunity to present
evidence, coupled with the court’s own limitations on its decision, constituted
a fundamental due process error requiring reversal of Family Court’s order.
Given the limited record presented, the matter was remitted to Family Court for
a new hearing.
Appellate
Division, Fourth Department
Enhanced
retirement income after the judgment of divorce deemed marital property where
husband elected upon retirement to combine service credits and collect single
retirement payment from NYSLRS
In
Mancuso v Graham, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 2707847, 2019 N.Y. Slip Op. 05268
(4th Dept., 2019) the parties= stipulation, which was incorporated but not merged
into their judgment of divorce, provided that plaintiff=s
marital share of defendant=s pension be calculated according to the formula
articulated in Majauskas v. Majauskas, 61 N.Y.2d 481, 489B491
(1984). During the marriage, defendant was employed by the New York State
Department of Aviation, where he accrued pension benefits under the NYSLRS. In
2003, after the judgment of divorce, defendant was transferred to the City of
Syracuse Fire Department, where he accrued benefits under the New York State
Police and Fire Retirement System (Police and Fire System) until he retired in
January 2017. He elected upon retirement, however, to combine his service
credits and collect a single retirement payment from NYSLRS. The Appellate
Division rejected defendant=s contentions that Supreme Court should have applied
the Majauskas formula to only that part of the retirement benefits that he
earned through the NYSLRS, and that his benefit from the Police and Fire System
is an entirely separate benefit that he earned after the termination of the
marriage. It is well settled that the Aportion of a pension based on years of employment
during the marriage is marital property@. Therefore, along with pension rights earned during a
marriage prior to a separation agreement or matrimonial action, enhanced
retirement income is deemed marital property subject to equitable distribution.
Here, because defendant=s final benefit included Acompensation
for past service that occurred during the marriage, it constituted marital
property.
The
Appellate Division also held that inasmuch as the DRO properly reflected the
terms of the parties= stipulation that was incorporated, but not merged, in
the judgment of divorce, defendant=s motion sought a revision of the terms and provisions
of the parties= stipulation. Therefore, instead of denying the motion
on the merits, the court should have denied the motion on the ground that Aa
motion is not the proper vehicle for challenging a [stipulation] incorporated
but not merged into a divorce judgment. Rather, defendant should have commenced
a plenary action seeking recission or reformation of the stipulation.
July 1, 2019
Court of Appeals
Court of Appeals
hold that Marital assets are not owned by one spouse or another, and the
dissolution of a marriage involving the division of marital assets does not
render one ex‑spouse the creditor of another
In
Pangea Capital Management, LLC v Lakian, ‑‑‑ N.E.3d ‑‑‑‑, 2019 WL 2583109
2019 WL 2583109 (2019) the United States Court of Appeals for the Second
Circuit certified the following question to the Court of Appeals: If an entered
divorce judgment grants a spouse an interest in real property pursuant to
Domestic Relations Law ' 236, and the spouse does not docket the divorce
judgment in the county where the property is located, is the spouse=s
interest subject to attachment by a subsequent judgment creditor that has
docketed its judgment and seeks to execute against the property? The Court of
Appeals answered the question in the negative.
John and Andrea Lakian were married in 1977.
In 2002, they purchased a home on Shelter Island, Suffolk County, for $4.5
million. Title to the property was recorded in John=s
name and immediately transferred to a trust, for which John was the sole
trustee and each spouse was a 50% beneficiary as tenant in common. In 2013,
Andrea commenced an action for divorce. A judgment entered on June 11, 2015
incorporated by reference an agreement that settled all issues, including
providing for the sale of the Shelter Island property. Under the settlement,
Andrea would receive 62.5% of the proceeds plus another $75,000 and John would
receive the balance.
In 2012, Pangea Capital Management, LLC brought an action
against John. Pangea voluntarily discontinued that action in favor of
arbitration. The arbitrator ruled in Pangea=s
favor on January 6, 2016, and Pangea subsequently brought an action in federal
court to enforce the $14 million arbitral award against John. Pangea sought and
obtained an order of attachment on the Shelter Island property. Several months
later, John asked the Federal District Court to modify the order of attachment
to permit the sale of the home. The court allowed Andrea to intervene and the
parties agreed to the sale and further agreed that the proceeds, totaling over
$5 million, would be deposited with the Clerk of the Court while the dispute
over Pangea=s claim to the proceeds was litigated. The parties
also agreed that their rights to the proceeds would constitute the Acash
equivalent@ of their rights in the Shelter Island property.
During this time, the Federal District Court confirmed the $14 million arbitral
award against John and entered a judgment in Pangea=s
favor in November 2016, which Pangea promptly docketed.
Andrea
contended that, pursuant to the terms of the divorce settlement, she was
entitled to 62.5% of the sale proceeds, plus $75,000. Pangea argued that,
because it docketed its judgment before Andrea docketed her judgment of divorce
in Suffolk County, CPLR 5203 gave Pangea priority over Andrea with respect to
the Shelter Island property.
The
Court of Appeals noted that CPLR 5203(a) concerns APriority
and lien on docketing judgment,@ and provides, in relevant part: ANo
transfer of an interest of the judgment debtor in real property, against which
property a money judgment may be enforced, is effective against the judgment
creditor either from the time of the docketing of the judgment with the clerk
of the county in which the property is located until ten years after filing of
the judgment‑roll, or from the time of the filing with such clerk of a notice
of levy pursuant to an execution until the execution is returned.@
The
Court of Appeals explained that under Domestic Relations Law '
236(B)(1)(c), marital property is Aall property acquired by either or both spouses during
the marriage and before the execution of a separation agreement or the
commencement of a matrimonial action, regardless of the form in which title is
held.@ Andrea had an interest in that marital property.
Legal rights to specific marital property vest upon the judgment of divorce,
with Ainchoate rights@ becoming Aactual ownership interests by virtue of [an] equitable
distribution judgment[ ]@ (McDermott v. McDermott, 119 A.D.2d 370, 379, 507
N.Y.S.2d 390 [2d Dept. 1986]>
The
Court held that Pangea=s
conception of Andrea as judgment creditor was utterly incompatible with our
legislature=s dramatic revision of the Domestic Relations Law in
1980. By incorporating the concept of Amarital property@ into Domestic Relations Law '
236, Athe New York Legislature deliberately went beyond
traditional property concepts when it formulated the Equitable Distribution Law@
(O=Brien v. O=Brien, 66 N.Y.2d 576, 583, 498 N.Y.S.2d 743, 489
N.E.2d 712 [1985] ). Under that statute, both Aspouses
have an equitable claim to things of value arising out of the marital
relationship@ Marital
property Ahardly fall[s] within the traditional property
concepts because there is no common‑law property interest remotely resembling
marital property@ Marital assets
are not owned by one spouse or another, and the dissolution of a marriage
involving the division of marital assets does not render one ex‑spouse the
creditor of another. Andrea therefore
could not properly be considered a judgment creditor of John. Thus, CPLR
5203(a), by its plain terms, had no application here, and Pangea had no
priority. Subsection (a) applies to transfers of the interest of a judgment
debtor in real property; the equitable distribution of Andrea=s
share was not the transfer of the interest of a judgment debtor to a judgment
creditor. Subsection (c) concerns only the priority given to a judgment creditor
as against a lien created by a petition in bankruptcy, which was irrelevant
here.
The Court held that the Second Circuit's decision in Musso v. Ostashko,
had no application. Musso addressed
a question that was not present here:,do all the marital assets become part of
the bankruptcy estate? Musso 's
statement that “under New York law an equitable distribution award is a remedy,
and the enforcement of that remedy is no different than the enforcement of any
other judgment” was dicta, and did not accurately convey New York law because
an entered judgment of divorce that distributes marital property is not like a
money judgment of a judgment creditor.
The
judgment of divorce was, as the Federal District Court explained, Aa
final settling of accounts@ between marital partners with an equitable interest
in all marital property. Because the judgment of divorce did not render Andrea
a judgment creditor of John (likewise, it did not render John a judgment
creditor of Andrea), Andrea was not subject to the docketing requirements of
CPLR 5203.
In
a footnote the Court pointed out that in some situations one spouse or ex‑spouse
might be a judgment creditor as to the other. For example, one spouse may
obtain a money judgment against the other spouse pursuant to Domestic Relations
Law ' 244. No such circumstance was present here and, the
Court had no occasion to decide whether a spouse seeking to enforce a section
244 judgment is a judgment creditor of the other spouse.
Appellate Division, First Department
Denial of post‑divorce maintenance affirmed where distributive award,
would generate cash flow sufficient to render wife self‑supporting.
In
Hofman v Hofman, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 2504654, 2019 N.Y. Slip Op. 04872
(1st Dept., 2019) the Appellate Division held, inter alia, that Defendant was entitled to 50% of
plaintiff=s interest in certain shares and investments he
acquired during his employment at a global investment firm, Oaktree Capital
Management LLC, where he worked for almost the entire duration of the parties=
16 year marriage. The record supported the
Referee=s finding that defendant made significant
contributions to the marriage as a parent and homemaker, allowing plaintiff to
pursue his career and amass significant wealth.
The
Referee=s denial of post‑divorce maintenance to defendant was
supported by the record, which showed that defendant=s
distributive award, now substantially increased, would generate cash flow
sufficient to render her self‑supporting.
The
Appellate Division found that maintenance and child support retroactive to the
commencement of the action was not
warranted (see Grumet, 37 A.D.3d at 536, 829 N.Y.S.2d 682). Defendant never
moved for pendente lite support. The parties entered into two stipulations in
which they agreed that each would withdraw approximately $ 2.2 million against
equitable distribution to use for personal and marital expenses, and there was
no evidence that either defendant=s or the children=s needs were not met.
The
Appellate Division held that the Referee providently exercised his discretion
in awarding defendant approximately 41% of her counsel fees, in view of her
substantial distributive award and the evidence that payment of her remaining
counsel fees would not affect her ability to meet her living expenses.
Appellate
Division, Second Department
Additional pendente lite counsel fees should be awarded
where monied spouse failed to rebut presumption that additional interim counsel
fees should be awarded
In
Pezzollo v Pezzollo, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 2439866, 2019 N.Y. Slip Op.
04741 (2d Dept., 2019) the parties were married in 2001, and had two children. In September 2014, the
plaintiff commenced the action for a divorce. The plaintiff was then a 49ByearBold
stay‑at‑home mother. The defendant was a 61ByearBold
oral surgeon, who earned $ 1.26 million in salary and partnership income from
his medical practice in 2013. In March 2015, the plaintiff was awarded interim
counsel fees of $ 25,000. In March 2016, the plaintiff moved to direct the
defendant to pay her attorney $ 50,000 in additional interim counsel fees. The
law firm thereafter moved for the defendant to pay it $ 28,379.86 in additional
interim counsel fees, and to consolidate the motions. In the alternative, the
law firm sought leave to withdraw as the plaintiff=s
counsel in the event that all of the requested relief was not granted. Supreme Court granted the law firm=s
motion to consolidate the motions and for leave to withdraw as the plaintiff=s
counsel, and otherwise denied the motions.
The Appellate Division modified. It
observed that there is a rebuttable presumption that interim counsel
fees shall be awarded to the less monied spouse (see Domestic Relations Law '
237[a] ), and courts Ashould normally exercise their discretion to grant
such a request made by the nonmonied spouse, in the absence of good cause@
to deny the request (Prichep v. Prichep, 52 A.D.3d at 65). It held that
considering the equities of the case and the financial circumstances of the
parties, the Supreme Court should have directed the defendant to pay additional
interim counsel fees to the law firm. Even taking into account the pendente
lite relief awarded to the plaintiff and the defendant=s
voluntary sale of his interest in his medical practice, the defendant remained
the monied spouse, and he failed to rebut the presumption that additional
interim counsel fees should be awarded to the plaintiff as the nonmonied
spouse. It held that an award of 75% of the total combined sum requested, or $
58,784.90, was appropriate. The Court pointed out that its analysis applied to
the granting of interim counsel fees to ensure that the plaintiff Awill
be able to litigate this action on equal footing@
with the defendant. A more detailed analysis of the relative financial
circumstances of the parties would be
addressed after trial and any interim awards will ultimately be considered by
the trial court in the context of an overall resolution of the parties=
financial claims.
A determination
to impute income will be rejected where the imputation was an improvident
exercise of discretion.
In
Matter of Fleming v McCloskey, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 2440072, 2019 N.Y.
Slip Op. 04697 (2d Dept., 2019) at the hearing on the mother=s
petition for child support on May 25, 2017, the father failed to provide the
court with copies of any corporate tax returns or financial documents for his
contracting business. He did submit an unsworn, partially completed financial
disclosure affidavit which contained, inter alia, information indicating rental
income of A11,100.@ That financial
disclosure form does not indicate if that amount constitutes monthly income or
yearly income and the preprinted instructions on that form also fail to
delineate whether the amounts set forth on the form should be set forth in
monthly or yearly amounts. After the hearing, the Support Magistrate imputed
income to the father of $ 149,528 per year, based in part, upon a determination
that the father earned monthly rental income in the sum of $ 11,100. The
Support Magistrate also noted that, in a prior child support proceeding in
2015, the father had stipulated that he had an income of $ 90,000. The Support
Magistrate directed the father to pay child support based on the imputed income
of $ 149,528. The father filed objections contending, inter alia, thatA11,100@
constituted yearly income, not monthly income. Family Court denied the
objections. The Appellate Division observed that although the Support
Magistrate is afforded considerable discretion in determining whether to impute
income to a parent, such determination will be rejected where the amount
imputed was not supported by the record, or the imputation was an improvident
exercise of discretion. Here, the imputation of income to the father of $
149,528 per year was an improvident exercise of discretion in that it was
based, in part, on the Support Magistrate=s determination that A11,100@
was monthly income, not annual income, without any inquiry or testimony on that
issue at the hearing. It was unclear as to whether the record supported the
Support Magistrate=s imputation of income to the father of $ 149,528 per
year. Thus, it remitted the matter to the Family Court for a hearing on the issue of whether the
father=s rental income of $ 11,100 constituted annual rental
income or monthly rental income and a new determination, if necessary, of the
father=s income.
A determination
to impute income will be rejected where the amount imputed was not supported by
the record
In
Vilmont v Vilmont, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 2440052, 2019 N.Y. Slip Op. 04705
(2d Dept., 2019) the Appellate Division noted that while a Support Magistrate
is afforded considerable discretion in determining whether to impute income to
a parent= a
determination to impute income will be rejected where the amount imputed was
not supported by the record, or the imputation was an improvident exercise of
discretion. It held that the Support Magistrate=s
imputation of income was not supported by the record. During a brief colloquy
among the parties and the Support Magistrate, documents were submitted but
neither party gave sworn testimony. When the parties were before the Support
Magistrate, she made no attempt to elicit any further information. Although the
Support Magistrate, in her findings of fact, found the documents submitted by
the parties to be inadequate and unsubstantiated, there was no indication that
the parties were advised during the course of the hearing as to the Support
Magistrate=s concerns with the documents submitted nor was there
any indication that the parties were afforded the opportunity to submit further
documents. The matter was remitted to the Family Court for a new hearing on the
petition and a new determination.
June 16, 2019
Appellate
Division, First Department
Implicit Consent
to Jurisdiction of Referee by Participating Without Objection
In Vanessa R. v
Christopher AE, N.Y.S.3d
, 2019 WL 2344435, 2019 N.Y. Slip Op. 04331 (1st Dept., 2019), a family
offense proceeding, the Appellate
Division rejected respondent’s argument that Family Court never obtained
jurisdiction over the matter because no signed stipulation of consent to the
order of reference appeared in the record. It held that Respondent implicitly
consented by participating in the proceedings without challenging the Referee’s
jurisdiction (see Matter of Hui C. v. Jian Xing Z., 132 AD3d 427, 427 [1st Dept
2015]).
Duration of The Pendente Lite Maintenance Was Properly Considered in
Determining That Further Maintenance Was Not Warranted.
In F.L., v. J.M., 2019 WL 2375160 (1st
Dept., 2019) Supreme Court, inter alia, valued
the marital portion of defendant husband=s
stock options and restricted stock units at $ 252,974 and distributed 40% to
plaintiff wife, valued the marital funds at $ 410,696.82, terminated the
pendente lite maintenance award as of July 31, 2017, and declined to award plaintiff post‑divorce maintenance,
imputed income of $ 831,710 to defendant husband and imposed an income cap of $
400,000 for the purpose of determining child support, and awarded plaintiff $
25,000 in counsel fees.
The
Appellate Division held that the court properly relied on the valuation of the
marital portion of defendant=s stock options and restricted stock units (GSUs)
performed by Financial Research Associates (FRA). The parties jointly retained
FRA to value this marital asset, and FRA=s report was stipulated to at trial and entered into
evidence without objection. Plaintiff did not call any witness from FRA or
present any expert testimony to support her argument on appeal that FRA=s
methodology was flawed. Moreover, the claimed patent errors in the report, such
as omissions of certain stock grants, could be explained by FRA=s
mandate to value only the stock options and GSUs held by defendant as of the
date of the commencement of this action. The Appellate Division modified to
award plaintiff 50% of the value of the marital portion of defendant=s
stock options and restricted stock units,
The
Appellate Division held that the court properly declined to award plaintiff
post‑divorce maintenance on the grounds that she held a doctorate in computer
science and was working full‑time as a data scientist. The duration of the
pendente lite maintenance was one of the factors the court considered in
determining that further maintenance was not warranted.
The
Appellate Division held that given the disparity in the parties=
incomes, the court correctly considered the standard of living the child would
have enjoyed had the marriage remained intact in deviating from the statutory
cap (see Domestic Relations Law ' 240[1Bb] [f][3]). However, as the court also ordered
defendant to pay his 88% pro rata share of add‑on expenses, including
extracurricular activities, summer camp, and any private school, it found that
the income cap should be reduced from $ 400,000 to $ 300,000.
Appellate
Division, Second Department
Second
Department, in apparent conflict with First and Fourth Departments, holds
attorney for the child has authority to pursue appeal on behalf of child from
custody order
In Matter of Newton v
McFarlane, 2019 WL 2363541 (2d Dept., 2019) the Appellate Division,
Second Department held that: (a) the attorney for the child has the authority
to pursue an appeal on behalf of the child from an order determining the
custody of the child; (b) the child is aggrieved, for appellate purposes, by an
order determining custody.
In
2013, the Family Court awarded the father sole legal and physical custody of
the parties= child, a female who was born in January 2002 and was
currently 17 years old. In February 2016, after commencing two prior
unsuccessful custody modification proceedings, the mother commenced a third
modification proceeding seeking sole legal and physical custody of the child.
The Family Court, over the objection of the attorney for the child, proceeded
to hold a full custody hearing without first addressing whether the mother had
alleged a sufficient change in circumstances to warrant an inquiry into whether
the child=s best interests were served by the existing custodial
arrangement. After the hearing, the Family Court stated its conclusion that the
mother had established the existence of sufficiently changed circumstances and
that awarding sole custody to the mother was in the child=s
best interests. The court wholly failed to explain the bases for these
conclusions in its order. The child, by her court‑appointed attorney, appealed.
The
mother contended on appeal that the attorney for the child lacked Astanding@
to appeal on the child=s behalf. The Appellate Division said she was actually
arguing that the attorney for the child lacked authority to take this appeal on
behalf of the child. The Court observed that when an attorney is appointed by
the court to represent a child in a contested custody proceeding, (specifically
excluding an attorney hired by one of the parties) that attorney must be
afforded the same opportunity as the attorneys for the parents and other
contestants to fully participate in the proceeding. An attorney appointed to
represent a child in a custody proceeding has the duty and the obligation to
zealously represent the child and has the right, equal to the right of the
attorneys for the litigants, to fully appear and participate in the litigation,
including the right to call, examine, and cross‑examine witnesses, and the
right to advance arguments on behalf of the child. These rights may be
protected and enforced by the taking of an appeal on behalf of the child. The
right of an attorney appointed to represent a child to take an appeal on behalf
of the child is confirmed by section 1120(b) of the Family Court Act which provides that whenever an attorney has been
appointed by the Family Court to represent a child, the appointment continues
without the necessity of a further court order where the attorney files a
notice of appeal on behalf of the child or where one of the parties files a
notice of appeal. The statute recognizes that an attorney appointed by the
Family Court to represent a child has the right to pursue an appeal on behalf
of the child.
The
Second Department pointed out that the Fourth Department decision in Matter of
McDermott v. Bale, 94 A.D.3d 1542, 943 N.Y.S.2d 708, supported its conclusion
that the attorney for the child has authority to appeal on the child=s
behalf. In McDermott, the attorney for the child refused to join in a
settlement stipulation agreed to by the parents. The Family Court approved the
stipulation over the attorney for the child=s
objection, and the attorney, on behalf of the child, took an appeal from the
resulting order. While the Appellate Division ruled that the attorney for the
child could not unilaterally scuttle a proposed settlement by withholding
consent, the Court entertained the appeal that was taken by the attorney on the
child=s behalf, and considered the arguments advanced by
that attorney in opposition to the settlement. The Appellate Division
recognized that in Matter of Lawrence v. Lawrence, 151 A.D.3d 1879, 54 N.Y.S.3d
358 and Matter of Kessler v. Fancher, 112 A.D.3d 1323, 978 N.Y.S.2d 501, the
Appellate Division, Fourth Department, dismissed appeals taken by the attorney
for the child from orders dismissing custody modification petitions. In those
cases, the parent whose petition was dismissed did not appeal. The Court
reasoned that children could not compel their parents to litigate positions
that the parents had elected to abandon. While it did not necessarily agree
with the stated rationale, it did agree that it may be inappropriate to
entertain litigation by a child for a change in custody where the parent to
whom the custody of the child would be transferred is unwilling to accept the
transfer. Likewise, it may be inappropriate to entertain litigation by a child
to prevent a change in custody where the parent who has had custody is no
longer opposed to the change. The present case did not present such a concern
since the father, while not having filed and perfected his own appeal, has
submitted a brief in which he urged reversal of the order from which the child
had appealed. Further, since enforcement of the order had been stayed pending
determination of this appeal, the father remained the custodial parent. Hence,
this was not a circumstance where the child was attempting to compel a custody
award in favor of an unwilling parent. It concluded that the attorney for the
child had authority to take an appeal on behalf of the child from the custody
determination made by the Family Court.
The
mother contended that the child was not aggrieved by the order changing custody
and that, therefore, the child=s appeal should be dismissed. The Appellate Division
held otherwise. It noted that aggrievement is an appellate concept which is
designed to screen out appeals taken by those who have only a mere academic
interest, or no interest at all, in the outcome. A person is aggrieved when
someone asks for relief against him or her, which the person opposes, and the
relief is granted in whole or in part. Here, during the hearing, the attorney
for the child opposed the mother=s petition for sole custody and advocated for the
father=s continued custody, which position was based in large
part on the child=s clearly expressed preference to remain living with
the father. Having sought and been denied different relief by the Family Court
and having opposed the relief that was granted to the mother, it held that the
child should be considered aggrieved by the determination by the Family
Court. It could not be denied that a
teenaged child has a real and substantial interest in the outcome of litigation
between the parents as to where the child should live and who should be
entrusted to make decisions for the child. To rule otherwise would virtually
relegate the child to the status of property, without rights separate and apart
from those of the child=s parents.
The
Appellate Division held that Family Court, erred in proceeding to hold a full
custody hearing over the objection of
the attorney for the child, without first addressing whether the mother had
alleged, and, if so, proven, a sufficient change in circumstances to warrant a
full inquiry into whether the child=s best interests were served by the existing custodial
arrangement.
Stipulation of
Settlement based upon memorandum of understanding rejected were manifestly
unfair given the nature and magnitude of the rights the wife waived
In Zavulunova v Aminov, N.Y.S.3d
, 2019 WL 2274422 (Mem), 2019 N.Y. Slip Op. 04229 (2d Dept., 2019) the
parties were married in March 1994, when the plaintiff was 16 years old. The
plaintiff raised the couple”s three children and remained a stay at home mother
until she commenced the action in July 2014. On March 29, 2017, the parties
signed a memorandum of understanding, wherein they agreed that the defendant
would pay the plaintiff $ 150,000 in full satisfaction for equitable
distribution, child support, and maintenance. In exchange, a pendente lite
order, directing the defendant to pay temporary relief to the plaintiff, would
cease to be in effect, and the plaintiff would leave the marital home within
180 days. When plaintiff refused to sign a stipulation of settlement defendant
moved to enforce the memorandum and direct the plaintiff to execute the
stipulation of settlement and all documents necessary to effectuate the
divorce. Plaintiff cross moved to set aside the memorandum of understanding.
The Supreme Court, inter alia, denied the motion and granted the cross motion.
The Appellate Division affirmed. It observed that an unconscionable bargain is
one which no person in his or her senses and not under delusion would make on
the one hand, and no honest and fair person would accept on the other, the
inequality being so strong and manifest as to shock the conscience and confound
the judgment of any person of common sense (Morad v. Morad, 27 A.D.3d 626, 627,
812 N.Y.S.2d 126) and found that the
plaintiff demonstrated that the terms of the memorandum of understanding
were manifestly unfair given the nature and magnitude of the rights she waived
(see Petracca v. Petracca, 101 A.D.3d at 697B699, 956 N.Y.S.2d 77).
Appellate
Divison, Fourth Department
Improper for
court to delegate to child authority to determine visitation
In
Matter of Heather SS v Ronald SS ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 2375483, 2019 N.Y.
Slip Op. 04506 (3d Dept., 2019) the Appellate Division held, inter alia, that
it would be improper for a court to delegate to a child the authority to
determine visitation (see Matter of Merkle v. Henry, 133 A.D.3d at 1268, 20
N.Y.S.3d 774; see also Kimberly C. v. Christopher C., 155 A.D.3d 1329, 1335, 65
N.Y.S.3d 260 [2017]).
Family Court properly allowed Military father to
temporarily relocate to attend Physician Assistant Program but should have
expressly retained continuing exclusive jurisdiction
In
Matter of Michael BB v Kristen CC, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 2375401, 2019
N.Y. Slip Op. 04521 (3d Dept., 2019) pursuant to a December 2016 order, the
mother and the father shared joint legal and physical custody of the child. In
May 2017, the father commenced a proceeding seeking permission to temporarily
relocate with the child to Texas for a period of two years so that he could
attend a U.S. Army Intersective Physician Assistant Program. Following a
hearing, Family Court granted the father=s petition, continued the parties=
joint legal custody and awarded parenting time to the mother during school
breaks and all but two weeks during the summer. The Appellate Division
modified. It held that Family Court=s thorough written decision demonstrated that its
determination to allow relocation was based upon the proper consideration of
the relevant factors. However, Family Court should have expressly retained
continuing exclusive jurisdiction over the matter. It was significant that the
father specifically asserted that the requested relocation was not intended to
be permanent, and that he promised to return to New York to again reside with
the child, in proximity to the mother and the child=s
extended family members, following the completion of his program. It found that
specifically retaining jurisdiction relative to any potential future issues was
appropriate and reversed so much of the order as denied respondent=s
request for Family Court to explicitly retain continuing exclusive
jurisdiction.
