Recent Decisions and Legislation - April 21, 2021

Recent Legislation

Laws of 2021, Ch 56

Laws of 2021, Ch 56, Part L § 4 to § 14 amended the Family Court Act as follows.

     § 4.  Family Court Act Section 353.7 was added

     § 5.  Family Court Act Section 355.5 was amended by adding a new

    subdivision 10.

    § 6. Family Court Act Section 756-a was amended by adding a new subdivision (h).

    § 7. Family Court Act section 756-b was added 

    § 8. Family Court Act section 1017, subdivision 5 opening paragraph was designated paragraph (a) and a new paragraph (b) was added.

    § 9. Family Court Act section 1055 subdivision (j), opening paragraph was designated paragraph (i) and a new paragraph (ii) was added.

    § 10.  Family Court Act section 1055-c was added.

    § 11. Family Court Act section 1089, subdivision (c), paragraph 5, subparagraph (ix), Clause (C) was amended, and a new paragraph 6 was added.

    § 12. Family Court Act section 1089, subdivision (d), subparagraph (vii), paragraph 2, clause (H), opening paragraph was designated item (I) and a new item (II) was added.

    § 13. Family Court Act section 1091-a was added.

    § 14. Family Court Act section 1097 was added.

    § 17. This act is effective September 29, 2021 subject to certain conditions.

Appellate Division, Second Department

Children do not have right to participate in litigation of financial matters of their parents’ divorce relating to maintenance and/or equitable distribution.  Participation of Children’s attorneys limited to matters in which children are the “subject of the proceeding”

In Mahadeo v Mahadeo, --- N.Y.S.3d ----, 2021 WL 1396138 (Mem), 2021 N.Y. Slip Op. 02286 the parties were married on July 23, 2003, and had three children. Before their marriage, they entered into a prenuptial agreement which provided, inter alia, that, in the event of termination of the marriage, each party waived the right to maintenance, equitable distribution, and attorney’s fees. Supreme Court denied the plaintiff’s motion to set aside the prenuptial agreement. Thereafter, the attorney for the children (AFC) moved to vacate which denied the plaintiff’s motion contending that case law issued subsequent to the hearing on the validity of the prenuptial agreement held that he should have been permitted to participate in the hearing to represent the interests of the children. Supreme Court granted the AFC’s motion, and directed a new hearing. The Appellate Division reversed. It held that contrary to  Matter of Barbara T. v. Acquinetta M., 164 A.D.3d 1, 82 N.Y.S.3d 416, which pertained to the impact of an adoption subsidy upon an award of child support, the children here did not have standing to move to vacate the order that denied plaintiff’s motion to set aside the prenuptial agreement. “Although children have certain rights with respect to issues of child support, custody, and visitation in matrimonial actions, children do not have a right to participate in the litigation of financial matters of their parents’ divorce relating to maintenance and/or equitable distribution.” While children’s attorneys are expected to participate fully in proceedings in which they are appointed their participation is limited to matters in which the children are the “subject of the proceeding” (Family Court Act § 249; see Judiciary Law § 35[7]). Given that children are not bound by agreements entered into by their parents they are not the “subject” of proceedings to determine the validity of their parents’ prenuptial agreement related to maintenance and equitable distribution (Family Court Act § 249).

 

Where plaintiff demonstrated she presently had no assets and was reliant on public assistance Court should have held hearing on her motion to set aside prenup on ground it was against public policy.

In Mahadeo v Mahadeo, --- N.Y.S.3d ----, 2021 WL 1396147 (Mem), 2021 N.Y. Slip Op. 02285 the parties were married on July 23, 2003, and had three children. The day before their marriage, the parties entered into a prenuptial agreement which provided, inter alia, that, in the event of termination of the marriage, each party waived the right to maintenance, equitable distribution, and attorney’s fees. At the time of the agreement, the plaintiff was employed in the field of technology and compliance, earning approximately $75,000 to $80,000 a year, and the defendant, a physician, operated a private practice, earning approximately $900,000 a year. The defendant also owned two properties in Queens. In 2008, the plaintiff ceased working outside of the home and became a full-time homemaker. In January 2015, the plaintiff commenced the action for a divorce. She moved, inter alia, to set aside the prenuptial agreement. In her affidavit submitted in support of the motion, the plaintiff averred, among other things, that she had no assets and had been required to seek public assistance. She annexed exhibits to her motion demonstrating that she was then reliant on public assistance. In an order dated August 4, 2018, made after a hearing, the Supreme Court, inter alia, denied plaintiff’s motion which was to set aside the parties’ prenuptial agreement, finding that she failed to sustain her burden of proof that the agreement was the product of duress, fraud, overreaching, or unconscionability. The Appellate Division reversed and remitted for a hearing and determination on the issue of whether the prenuptial agreement was unconscionable at the time this action was before the court. It observed that an agreement that might not have been unconscionable when entered into may become unconscionable at the time a final judgment would be entered. The plaintiff submitted evidence with her motion papers in support of her argument that the prenuptial agreement should be set aside as a matter of public policy since, at the time of her motion, she was unemployed, had become reliant on public assistance for herself and her children, and had no financial resources Supreme Court failed to address the plaintiff’s contention that the enforcement of the agreement would result in the risk of her becoming a public charge.

Where wife moved for interim counsel fees and motion was granted in part, her attorneys did not have standing to appeal from the order where they did not ask for any relief 

In Youngwall v Youngwalll, 2021 WL 1395688 (2d Dept.,2021) an action for a divorce the defendant moved, inter alia, for an award of interim counsel fees in the sum of $350,000. The Supreme Court granted the motion only to the extent of awarding her $35,000, payable to the nonparty Advocate, LLP. Advocate, LLP, appealed, asserting that because the defendant was the nonmonied spouse, she was entitled to an award of $350,000. The appeal was dismissed, with costs to the plaintiff payable by the nonparty-appellant (see CPLR 5511). The Appellate Division held that “a person is aggrieved within the meaning of CPLR 5511 when he or she asks for relief but that relief is denied in whole or in part, or when someone asks for relief against him or her, which the person opposed, and the relief is granted in whole or in part. Here, while the interim counsel fees awarded to the defendant on her motion were made payable to Advocate, LLC, it did not seek any relief in the Supreme Court that was denied in whole or in part. Accordingly, Advocate, LLC, was not aggrieved by the order, and the appeal had to be dismissed.

Laws of 2021, Ch 97

Laws of 2021, Ch 97 amended Family Court Act §§ 712, 732, 773 and 1012, effective April 8, 2021 by deleting the word "incorrigible". 

The Legislative Memorandum in support of the legislation states that the use of the word "incorrigible" in the context of family or children's courts dates back to the first juvenile court in Chicago in the late 1800s. It was adopted in New York when the first children's courts were established in the early 20th century and has carried over in each iteration of our juvenile or family court system since that time. Primarily applied to girls, and disproportionately to girls of color, this term - in practice - tends to single out girls of color for behaviors that do not match stereotypical feminine behavior. "Incorrigible" is defined as a person who is "incapable of being corrected, not reformable" (Merriam-Webster) and, thus this term is completely out of line with the current understanding of the goals of our Family Court system. The use of "incorrigibility" as a basis for Family Court intervention disparately impacts and harms girls and young women of color.  Eliminating this term from the Family Court Act is intended to send a positive message and assist in the efforts to achieve full equality and empowerment for girls, young women, and people of color.

Determination to calculate income by applying reasonable rate of return to  entire tort settlement award not an improvident exercise of discretion

In Matter of Gerghty v Muniz, --- N.Y.S.3d ----, 2021 WL 1287197 (Mem), 2021 N.Y. Slip Op. 02155(2d Dept.,2021) the parties had two children, both of whom resided with the father. The parties stipulated to an order of support requiring the mother to pay child support of $5 per month, due to the mother’s inability to work after a motor vehicle accident. After the mother received a personal injury settlement award from her accident, the father filed a petition seeking an upward modification of the mother’s child support obligation. The Support Magistrate directed the mother to pay child support of $464 per month. The Appellate Division observed that a lump-sum payment received by a parent in a tort action is not excluded from consideration in determining child support. The Support Magistrate’s determination to calculate her income by applying a reasonable rate of return to the entire settlement award was not an improvident exercise of discretion. The mother did not present any evidence to demonstrate what, if any, portion of the award was for future medical expenses. Further, while she spent a portion of the award, parents have a duty to use available financial resources to support their children and cannot insulate such resources from consideration for child support by transforming them into non-income producing assets.  Nevertheless, as the child support obligation directed by the Family Court reduced the mother’s income below the self-support reserve then applicable the court was required to reduce the obligation to the greater of $50 or the difference between the mother’s income and the self-support reserve (see Family Ct Act § 413[1][d]), which was $5,419, or $452 per month.

Not a Denial of due process to interview child in camera at dispositional stage abuse proceeding 

      In Matter of Bryce EW, --- N.Y.S.3d ----, 2021 WL 1287131 (Mem), 2021 N.Y. Slip Op. 02167 (2d Dept.,2021) the Administration for Children’s Service) commenced a proceeding against the mother and the father alleging that they had abused the child by inflicting excessive corporal punishment on him. The child was temporarily placed in the custody of a paternal great aunt. The mother, as well as ACS and the child’s attorney, subsequently consented to the entry of an order of fact-finding without admission pursuant to Family Court Act § 1051(a). After a dispositional hearing, the Family Court determined, inter alia, that it was in the best interests of the child to continue his placement with the paternal great aunt until the completion of the next permanency hearing. The Appellate Division held that the Family Court did not deprive the mother of her right to due process at the dispositional stage of the proceeding by interviewing the child in camera outside of the presence of either the mother or her counsel. At the dispositional hearing, where the court’s sole focus is the best interests of the child, the court has ample inherent discretionary power to conduct the proceedings so as to avoid placing an unjustifiable emotional burden on the child while allowing the child to speak freely and candidly (Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 272, 299 N.Y.S.2d 842, 247 N.E.2d 659). Here, the court providently exercised its discretion in conducting an in camera interview with the child outside of the presence of either the mother or her counsel, after allowing the mother’s counsel to submit to the court proposed questions for the interview.

Appellate Division, First Department

When person designated in conditional judicial surrender declines to adopt the child, the surrender must be revoked upon the birth parent’s application

In Matter of L.S., --- N.Y.S.3d ----, 2021 WL 1218409, 2021 N.Y. Slip Op. 02085 (1st Dept.,2021) the Appellate Division held that when the person designated in a conditional judicial surrender pursuant to Social Services Law §383–c as the adopting parent declines to adopt the child, the surrender must be revoked upon the birth parent’s application. The Family Court was unwilling to vacate the surrender given the undisputed toll on the child’s well-being as a result of spending virtually her entire life in foster care. Instead, the court held a best interests hearing and determined that the mother’s parental rights remain terminated, and converted her conditional judicial surrender to an unconditional one, which permitted the child to remain free for adoption. The Appellate Division reversed because the designated person to adopt is a fundamental condition precedent to a surrender such that the person’s declination mandates its revocation upon the birth parent’s prompt application. 

  The Appellate Division observed that the legislature enacted section 383–c of the Social Services Law in 1990 to provide for new procedures for the surrender of a foster child to an authorized agency so as to free the child for adoption. The law lacked the dispositional alternatives for the conditional judicial surrender in the event of a substantial failure of a material condition prior to finalization of the adoption. That oversight was corrected by Matter of Christopher F., 260 A.D.2d 97, 701 N.Y.S.2d 171 (3d Dept. 1999) where the Appellate Division, Third Department held that the child’s adoption by the couple was a condition precedent of the surrender instrument, upon which its failure permitted the petitioner, upon her prompt application, to revoke it. The Christopher F. court found that the Family Court misconstrued Social Services Law § 383–c, reasoning that to assume that the legislature did not intend for the biological parent to have any recourse against the substantial failure of a material condition of the conditional surrender was not logical in view of the fact that the statute allowed the biological parents to surrender their child on the condition that the child be adopted by a particular person and gave the biological parents the right to notice when that condition failed. In Matter of Bentley XX (Eric XX.), 121 A.D.3d 209, 989 N.Y.S.2d 544 (3rd Dept. 2014), the Appellate Division, Third Department, held that the Family Court should have granted the father’s motion to revoke his surrender because there had been a substantial failure of a material condition, namely, that the couple, together, adopt the child. The Third Department noted that revocation continued to be a permissible disposition in a situation where the designated adoptive individual declines to adopt the child because the legislature did not disapprove of it, particularly in view of the fact that the legislature had the benefit of the holding in Matter of Christopher F. when it amended section 383–c[6][c]. The order of the Family Court was reversed, on the law, the petition denied and dismissed, and the mother’s application granted and the matter remanded for an expeditious continued hearing on the agency’s petition to terminate the mother’s parental rights.

 

Appellate Division, Second Department

Failure to make best interest determination and failure to articulate factors considered in awarding custody to plaintiff other than the defendant’s failure to pay his share of the fees for the attorney for the children warrants reversal.

In Indictor v Indictor, --- N.Y.S.3d ----, 2021 WL 1202797, 2021 N.Y. Slip Op. 01968 (2d Dept.,2021) in 2012, the parties commenced actions for a divorce. In a temporary order of custody and visitation dated April 17, 2015, the Supreme Court, inter alia, awarded the plaintiff sole legal and physical custody of the children. In an order dated February 7, 2018, the Supreme Court appointed an attorney for the children, to be paid for equally by the parties. At a proceeding on March 26, 2018, the court indicated that it had received notification from the appointed attorney for the children that he had not been paid by either party, and was asking to be relieved. The court warned the defendant that if he did not pay the attorney for the children, the temporary order of custody and visitation would be “made final.” The court added that it could not conduct an in camera interview of the children without an attorney for the children. At a proceeding on April 27, 2018, the Supreme Court noted that the defendant still had not paid his share of the fees for the attorney for the children, and directed the plaintiff to provide the court with a proposed final order of custody. In an order dated June 1, 2018, the court, sua sponte, awarded sole legal and physical custody of the children to the plaintiff. The Appellate Division reversed and remitted for a hearing. It held that a court opting to forgo a plenary hearing must take care to clearly articulate which factors were, or were not, material to its determination, and the evidence supporting its decision. Supreme Court failed to inquire into whether an award of sole legal and physical custody to the plaintiff was in the best interests of the children and  failed to articulate what factors it considered in awarding custody to the plaintiff other than the defendant’s failure to pay his share of the fees for the attorney for the children. The plaintiff also failed to pay her share of the fees for the attorney for the children. It found the court erred in awarding the plaintiff sole legal and physical custody of the two minor children without conducting a hearing.

Where record is sufficient omission of recital that contemptuous conduct was calculated to, or actually did, defeat, impair, impede or prejudice rights or remedies may be corrected on appeal

  In Matter of Martucci v Nerone, --- N.Y.S.3d ----, 2021 WL 1202639, 2021 N.Y. Slip Op. 01977(2d Dept.,2021) Family Court adjudicated the father in willful contempt of the support order. The Appellate Division agreed with the father that the order adjudging him to be in contempt of court [was] required to recite that the contemptuous conduct was calculated to, or actually did, defeat, impair, impede or prejudice the [mother’s] rights or remedies. However, because the finding of contempt was supported by the record, the omission of this recital was a mere irregularity which may be corrected on appeal and it modified the order of disposition to include the requisite recital.

Revised Forms for Use in Matrimonial Actions

Revised Forms for Use in Matrimonial Actions in Supreme Court were adopted effective March 1, 2021. The revised forms reflect the increases as of March 1, 2021 in the Self Support Reserve from $17,226 to $17,388 and in the federal Poverty Level Income for a single person from $12,760 to $12,880.

The Forms and Calculators for both Contested and Uncontested Divorces revised March 1, 2021 reflecting these changes are posted at http://ww2.nycourts.gov/divorce/MaintenanceChildSupportTools.shtml

The revised forms are as follows:

Form UD-8(2) Maintenance Guidelines Worksheet

Form UD-8(3) Child Support Worksheet

Temporary Maintenance Worksheet (for divorces started on or after 10/25/15)

Post-Divorce Maintenance/Child Support Worksheet

 The Uncontested Divorce Forms revised March 1, 2021 reflecting these changes are also posted at http://ww2.nycourts.gov/divorce/divorce_withchildrenunder21.shtml

The revised forms are as follows:

Composite Uncontested Divorce Forms

DRL ' 243 motion for Sequestration denied where plaintiff failed to make showing of necessity, such as consistent pattern of arrears or willful violation of a court order.

In Goldin v Levy,     N.Y.S.3d     , 2021 WL 921683, 2021 N.Y. Slip Op. 01481 (1st Dept.,2021) the Appellate Division held, inter alia, that the order that directed a hearing to determine arrears, civil contempt, and attorneys fees was not appealable, because it did not affect a substantial right (see CPLR 5701[a][2][v]; Zaharatos v. Zaharatos, 134 A.D.3d 926, 22 N.Y.S.3d 480 [2d Dept. 2015]; Kornblum v. Kornblum, 34 A.D.3d 749, 751, 828 N.Y.S.2d 402 [2d Dept. 2006]). Any party aggrieved by an order entered subsequent to the hearing may appeal from that order. The Appellate Division held that the motion court properly denied the plaintiffs motion seeking sequestration of defendants share of retirement accounts pursuant to Domestic Relations Law ' 243. Although plaintiff established some arrears, she failed to make a showing of necessity, such as a consistent pattern of arrears or a willful violation of a court order directing payment of arrears.

Appellate Division, Second Department

Sanction of drawing an adverse inference against the plaintiff, regarding all custody issues for failure to appear for updated forensic evaluation, an improvident exercise of discretion 

In Treanor v Treanor,     N.Y.S.3d     , 2021 WL 1010572 (Mem), 2021 N.Y. Slip Op. 08276 (2d Dept.,2021) several months after the commencement of this action for a divorce, the Supreme Court appointed a neutral forensic evaluator, who completed a forensic evaluation of the parties and their three children. In an order dated June 7, 2019, the court reappointed the forensic evaluator in order to conduct an update to the original forensic evaluation. Plaintiff violated the directives to participate in the updated forensic evaluation Upon the defendant=s motion for an order of preclusion, the Supreme Court found that the plaintiff intentionally violated its directives to participate in the updated forensic evaluation, and imposed the sanction of drawing an adverse inference against the plaintiff with respect to custody issues at the time of trial. The Appellate Division found that Supreme Court properly determined that the plaintiff intentionally violated its directives to participate in the updated forensic evaluation but under the circumstances of this case, the court improvidently exercised its discretion in imposing the sanction of drawing an adverse inference against the plaintiff regarding all custody issues at the time of trial on the ground that she failed to participate in the updated forensic evaluation rather than limiting the adverse inference to the circumstances of the forensic evaluation.

Improper to award parental access with the child only as often as both the child and the parent agree.

In Matter of Clezidor v Lexune,     N.Y.S.3d     , 2021 WL 900925, 2021 N.Y. Slip Op. 01409 (2d Dept.,2021) the Appellate Division reversed an order of the Family Court which, inter alia, awarded the mother parental access with the child only as often as both [the child] and [the mother] agree. It held that a court may not delegate its authority to determine parental access to either a parent or a child. Here, the order appealed from directed that the mother was only entitled to parental access with the child as often as she and the child agree. That provision effectively conditioned the mothers parental access on the childs wishes and leaves the determination as to whether there should be any parental access at all to the child.

Appellate Division, Fourth Department

A Contempt application which does not strictly comply with Judiciary Law ' 756 is jurisdictionally defective.

In Rennert v Rennert,     N.Y.S.3d     , 2021 WL 1049727, 2021 N.Y. Slip Op. 01630 (4th Dept.,2021) the plaintiffs contempt applications omitted the language warning defendant that his failure to appear in court may result in [his] immediate ... imprisonment for contempt of court.  Because plaintiffs contempt applications failed to include the required warning language, they did not strictly comply with Judiciary Law ' 756, and were jurisdictionally defective.

 Supreme Court

 While the spousal support statute in the Family Court Act mirrors the temporary maintenance statute in the Domestic Relations Law in many respects, there is a significant difference in the two statutes with respect to duration.

In JJ, v. TW, 2021 WL 1047105 (Table), 2021 N.Y. Slip Op. 50219(U) Sup Ct (2021) an action for a divorce Plaintiff moved to terminate spousal support payments awarded by family court on the ground that, as of the date of his application, he had tendered 13 consecutive monthly payments, more than double the amount of the calculated durational period@ set forth by the post divorce maintenance advisory durational guidelines. The support order Plaintiff challenged was issued in Family Court pursuant to Family Court Act ' 412. The Court observed that while the spousal support statute in the Family Court Act mirrors the temporary maintenance statute in the Domestic Relations Law in many respects, there is a significant difference in the two statutes with respect to duration. DRL ' 236[B][5 a] [f] expressly states Athe court shall determine the duration of temporary maintenance by considering the length of the marriage. DRL ' 236[B][5 a] [g] further provides that temporary maintenance shall terminate no later than the issuance of the judgment of divorce or the death of either party, whichever occurs first. The Family Court Act, on the other hand, does not relate the duration of spousal support to the length of the marriage. Rather, the Family Court Act provides that unless modified upon a showing of a substantial change in circumstances, any order of spousal support issued pursuant to Family Court Act ' 412. shall continue until the earliest of one of the following: a written or oral stipulation or agreement between the parties; the issuance of a judgment of divorce or other order in a matrimonial proceeding; or the death of either party (see FCA ' 412[10]). Here, Plaintiff failed to show a substantial change in circumstances warranting termination or modification of the spousal support order.

Construing the emancipation clause in the parties agreement Supreme Court finds that child was emancipated by his enrollment in the United States Naval Academy

In Denatale v. Denatale, 2021 WL 1096899 (Table), 2021 N.Y. Slip Op. 50247(U) (Sup Ct.,2021) the parties Stipulation of Settlement dated December 29, 2017 which was incorporated but did not merge into their Judgment of Divorce provided that the child support obligation would continue through the age of 22 even if the Children had completed college. The Stipulation provided, in part as follows at Article E: “The Husbands obligation to pay child support shall continue until the child attains the age of twenty two (22) regardless of whether a child is still in college or has completed college. Thus, by way of example, should Campbell graduate college at the age of 21, child support for her shall continue through age 22.” … Emancipation shall also include: Marriage (even though such a marriage may be void or voidable and despite any annulment of it); Permanent residence away from the residence of the Mother and the Father. A residence at boarding school, camp, or college is not to be deemed a residence away from the residence of the mother and, hence, such a residence at boarding school, camp, or college is not an Emancipation Event; Death of the child (God forbid); Entry into the armed forces of the United States (provided that the Emancipation Event shall be deemed terminated and nullified upon discharge from such forces, and, thereafter, the period shall be the applicable period as if such an Emancipation Event by reason of the entry had not occurred); Engaging in full time employment upon and after the attaining by a child of 18 years of age....””Supreme Court held that the child was emancipated by his enrollment in the United States Naval Academy. The court cited as authority Beekman Ellner v. Ellner, 296 AD2d 404 (2d Dept. 2002), where  the Appellate Division affirmed an order of the Family Court which terminated child support [s]ince the parties child enrolled in full time training duty at the U.S. Naval Academy at Annapolis and his life at Annapolis was largely controlled by the government, which also provided for the bulk of his material needs, he was clearly engaged in active military service to render him emancipated (citing 10 USC Sec 101[d][1]). Similarly, in Zuckerman v. Zuckerman, 154 AD2d 666 (2d Dept. 1989), the Appellate Division held that the parties son became emancipated when he entered West Point. There, the Appellate Division found that pursuant to 10 USC Sec 3075[b][2]1, upon entering West Point, the minor child is considered a member of the regular army and subject to extensive governmental control, which is inconsistent with a parent=s control and support of a child. The child attends West Point tuition free and is provided with room, board, health care, and monthly pay of $504.30, plus other allowances. Thus, he is self supporting and financially independent of his parents.  Although the Stipulation here was clear that attendance at a college was not an emancipation event, it was also clear that enlistment in the military was one. The motion to terminate child support was granted as the parties son, was deemed emancipated.

 

Recent Decisions and Legislation - March 16, 2021

 Appellate Division, Second Department

Where husband who placed spyware on wife’s computer invoked Fifth Amendment, and intentionally destroyed evidence as to what the spyware actually intercepted, appropriate sanction was to strike the causes of action in the complaint relating to the financial issues other than child support

In C. C. v. A. R., --- N.Y.S.3d ----, 2021 WL 800051, 2021 N.Y. Slip Op. 01243 (2d Dept.,2021) the plaintiff installed spyware on the wife’s phone, invoked Fifth Amendment protections on the issue, and intentionally destroyed evidence as to what the spyware actually intercepted. The Appellate Division held that Supreme Court properly determined, under the circumstances here, that it was proper to infer that the plaintiff violated the defendant’s attorney-client privilege, and that the appropriate sanction was to strike the causes of action in the complaint relating to the financial issues of the case other than child support. It noted that a party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense’. Where the evidence is determined to have been intentionally or wilfully destroyed, the relevancy of the destroyed documents is presumed” (Pegasus Aviation I., Inc. v. Varig Logistica S.A., 26 N.Y.3d at 547, 26 N.Y.S.3d 218, 46 N.E.3d 601). Here, the Supreme Court properly drew the presumption of relevance in connection with the interception by the plaintiff of privileged communications between the defendant and her attorney in view of the plaintiff’s invocation of his Fifth Amendment privilege against self-incrimination when questioned about it at his deposition, his intentional destruction of electronic records, and the evidence that he had utilized spyware to record the defendant’s conversations when she was in the vicinity of her attorney’s office. Although this presumption is rebuttable, the plaintiff did not provide any evidence to rebut it. Further, while the striking of pleadings is a drastic remedy, the court did not improvidently exercise its discretion in striking the causes of action in the plaintiff’s complaint seeking financial relief other than child support. Under the common-law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence. These sanctions can include “precluding proof favorable to the spoliator to restore balance to the litigation, requiring the spoliator to pay costs to the injured party associated with the development of replacement evidence, or employing an adverse inference instruction at the trial of the action. Where appropriate, a court can impose the ultimate sanction of dismissing the action or striking responsive pleadings, thereby rendering a judgment by default against the offending party” (Ortega v. City of New York, 9 N.Y.3d 69, 76, 845 N.Y.S.2d 773, 876 N.E.2d 1189).

 

Any monies spent from companies which are defendants separate property would not be considered marital property and could not be wastefully dissipated by the defendant.

In Rosen v Rosen, --- N.Y.S.3d ----, 2021 WL 799852, 2021 N.Y. Slip Op. 01278 (2d Dept.,2021) the parties were married on May 5, 1985. Prior to the marriage, in 1981, the defendant incorporated Airline Software, Inc. Airline was in operation through 2004, and then the name of the company was changed to Airframe Systems, Inc. The defendant incorporated various companies thereafter. The primary operating company from 2004 through 2011 was Aviation Software, Inc. In 2006, the defendant incorporated ASI Scanning, Inc., which eventually took over Aviation’s operations. 

The parties entered into a prenuptial agreement in which they agreed that the defendant’s separate property included shares of stock in Airline and GSRAI. The prenuptial agreement provided that the plaintiff waived all rights to the defendant’s separate property, as well as to any property that the defendant may in the future purchase or exchange with the proceeds of his separate property. The plaintiff also waived her right to any increase in value of the defendant’s separate property in which the defendant presently had an interest or in which he may have an interest acquired as a result of a sale or exchange of his separate property. 

The parties separated in 2009, and the plaintiff commenced this action for a divorce in March 2012. Supreme Court, inter alia, awarded the plaintiff a distributive award in the sum of $363,644.74, representing 30% of the value of the defendant’s interest in ASI and a net credit in the sum of $200,807.74 for the parties’ wasteful dissipation of marital funds. 

The Appellate Division held the Supreme Court erred in determining that ASI was marital property and in awarding the plaintiff a percentage thereof. It was undisputed that the defendant’s interest in Airline, which was later renamed Airframe, constituted separate property. Since Airline exchanged its operations with Aviation, and Aviation exchanged its operations with ASI, the plaintiff waived all rights to the value of the defendant’s interest in ASI. 

The Appellate Division held that a party alleging that his or her spouse has engaged in wasteful dissipation of marital assets bears the burden of proving such waste by a preponderance of the evidence (Marino v. Marino, 183 A.D.3d 813, 820, 123 N.Y.S.3d 638). ASI and Aviation constituted the defendant’s separate property. Therefore, any monies spent from those companies would not be considered marital property and could not be dissipated by the defendant. The Supreme Court found that the vast majority of the funds that the defendant allegedly wastefully dissipated were generated from ASI. The defendant conceded that he wastefully dissipated $7,525 in marital funds. Thus, the plaintiff was entitled to a credit of only $7,525 for the defendant’s uncontested wasteful dissipation of marital assets.

  The plaintiff did not dispute the Supreme Court’s finding that she wastefully dissipated the proceeds from the sale of the marital home and, thus, there was no ground to disturb the court’s finding that the defendant is entitled to an award of the sum of $82,726.49, which represents 50% of the sum of $165,452.97 that the plaintiff received from those proceeds, less expenses. Accordingly, the defendant was entitled to a net distributive award in the sum of $75,201.49.

  The Appellate Division affirmed the awards to the plaintiff of maintenance of $4,000 per month for a period of three years, $211,300 in maintenance arrears, and attorneys’ fees of $30,000.

Error to decide motion to enjoin relocation request without considering the factors set forth in Matter of Tropea 

In Conroy v Vaysman, --- N.Y.S.3d ----, 2021 WL 710591, 2021 N.Y. Slip Op. 08182 (2d Dept.,2021) the Appellate Division held that Family Court erred in deciding the mothers motion to enjoin the father’s relocation with the child to New Jersey without considering the factors set forth in Matter of Tropea. It observed that each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child. The factors to be considered by the court in its analysis are listed in Matter of Tropea v. Tropea, 87 N.Y.2d 727, 739, 642 N.Y.S.2d 575.

Appellate Division, Third Department

Proceeding that sought to terminate the rights of one parent in the face of an existent permanency plan that sought to reunite the child with the other parent, were contradictory and could not be reconciled. Therefore, the petition should have been dismissed.

In Matter of Xavier XX, --- N.Y.S.3d ----, 2021 WL 816376, 2021 N.Y. Slip Op. 0129 (3d Dept.,2021) Respondent was the father of the child (born in 2016). In September 2017, the child’s mother consented to the temporary removal of the child from her custody, and the child was placed in the care and custody of petitioner. Thereafter, petitioner commenced a neglect proceeding against the mother and the child was adjudicated a neglected child and the mother was placed under an order of supervision for one year. At a permanency hearing in November 2018, custody of the child was continued with petitioner. The goal of the permanency plan resulting from the hearing was to return the child to the mother.  In February 2019, petitioner commenced a proceeding pursuant to Social Services Law § 384–b, seeking to adjudicate the child to be abandoned by respondent and to terminate his parental rights. After a hearing, Family Court determined that respondent abandoned the child. As such, it thereafter terminated respondent’s parental rights. The Appellate Division reversed. It held that the proceeding was improperly brought as the permanency plan in place at the time of the hearing with respect to the mother was to return the child to the mother. The statutory purpose of an abandonment proceeding is to free the child for adoption by terminating the parents’ rights to the child. Because this proceeding sought to terminate the rights of one parent in the face of an existent permanency plan that sought to reunite the child with the other parent, it did not serve that purpose. The end goals of these two concurrent proceedings were contradictory and could not be reconciled. Therefore, the petition should have been dismissed.

Recent Decisions and Legislation - March 1, 2021

 

March 1, 2021

Child Support Standards Chart Released

The Child Support Standards Chart (PDF) was released on March 1, 2021. It may be downloaded at https://www.childsupport.ny.gov/dcse/pdfs/CSSA.pdf

The 2021 poverty income guidelines amount for a single person as reported by the United States Department of Health and Human Services is $12,880 and the 2021 self-support reserve is $17,388. The combined parental income amount remains at $154,000.

Appellate Division, First Department

Support Magistrate properly imputed income to the father based on cash and in-kind support provided by his family, both prior to and after the filing of the petition

In Matter of Nannan L v Stephen L, --- N.Y.S.3d ----, 2021 WL 559146 (1^st Dept.,2021) the Appellate Division affirmed an order which denied the father’s petition for a downward modification of his child support obligations. It held that the Support Magistrate properly imputed income to the father based on cash and in-kind support provided by his family, both prior to and after the filing of the petition (Family Ct Act § 413[1][b][5][iv][D] ), including payment for various in-patient drug treatment programs, medical and dental care, and other expenses. The father’s family also has been paying for him to live rent-free in a two-bedroom apartment on the Upper West Side of Manhattan and gave him a substantial monthly stipend for his personal use.

            The Appellate Division held that Family Court did not err in failing to conduct a separate hearing on the modification petition. At the hearing on the violation petition, the court heard evidence of his financial circumstances from the entry of the order of support through the filing of the modification petition, and up until the date the hearing concluded. The father was aware that in the event the court found that he willfully violated the order of support, it likely would dismiss the downward modification petition and a hearing would be unnecessary. The father’s counsel confirmed that all relevant evidence relating to the modification petition had been presented to the court in the context of the violation hearin 

 

Appellate Division, Third Department

Failure to satisfy statutory mandate of UCCJEA Requires Reversal. Family Offense Jurisdiction is not determined by UCCJEA

            In Matter of Vashon H v Bret I, --- N.Y.S.3d ----, 2021 WL 624233, 2021 N.Y. Slip Op. 01103 (3d Dept.,2021) the Appellate Division held that Family Court failed to satisfy the procedural mechanisms required by the UCCJEA when a custody petition is pending in another state. After becoming aware of the Ohio proceeding, Family Court properly communicated with the Ohio court. The extent of these communications was unclear; however, they apparently resulted in the transmittance of an Ohio order to Family Court. Although the contents of the Ohio order strongly implied that the Ohio court intended to retain jurisdiction, as evidenced by its scheduling of the matter for trial, this did not absolve Family Court of its obligation to create a record of its communications and to provide that record to the parties. Family Court’s brief summary of its determination following the communication, which was not placed on the record in the presence of the parties, did not satisfy this statutory mandate. Moreover, although it was a permissible exercise of discretion for Family Court not to permit the parties to participate in its communication with the Ohio court , the court was then required to allow the parties an opportunity to present facts and legal arguments before it rendered a decision, which it failed to do. (See DRL§ 75-i(2)).  It remitted for a new hearing

            The Appellate Division also held that jurisdiction in the context of a family offense petition is not determined by the UCCJEA, which serves the limited purpose of enforcing orders of custody and visitation across state lines (see Domestic Relations Law § 75[2]). Family Court and criminal courts “have concurrent jurisdiction over any proceeding concerning acts which would constitute” those delineated as both crimes and family offenses (Family Ct Act § 812[1]). Additionally, although the majority of the acts alleged in the family offense petition occurred in Ohio, Family Court’s jurisdiction is not subject to the same geographic limitations as placed on that of the criminal courts, as nothing “requires the predicate acts of a family offense to have occurred in a particular county, state, or country in order for the Family Court to possess subject matter jurisdiction” (Matter of Richardson v. Richardson, 80 A.D.3d 32, 42, 910 N.Y.S.2d 149 [2010]). Thus, Family Court’s jurisdiction extended to cover the subject matter of the family offense petition, regardless of the fact that the vast majority of the alleged acts were committed in Ohio. Family Court should have entertained the family offense petition and, accordingly, it reversed and remitted the matter for the proceedings.

 

           

 

Change of Circumstances requirement for custody modification circumvented when  prior custody order provides satisfaction of certain conditions constitute necessary change in circumstances.

            In Matter of Austin ZZ v Aimee A, --- N.Y.S.3d ----, 2021 WL 624156, 2021 N.Y. Slip Op. 01109 (3d Dept.,2021) the Appellate Division held that while ordinarily, the party seeking to modify a prior order of custody must first demonstrate that there has been a change in circumstances since entry of the prior order that warrants an inquiry into the best interests of the child and, if so, that modification of that prior order is necessary to ensure the best interests of the child this requirement may, however, be circumvented when the prior custody order provides that the satisfaction of certain conditions will constitute the necessary change in circumstances.

 

 Family Court was statutorily precluded from rendering abuse findings where Respondent was not biological father of the children

            In Matter of Lazeria F, --- N.Y.S.3d ----, 2021 WL 624353, 2021 N.Y. Slip Op. 01096(3d Dept.,2021) Respondent Paris H. (mother) was the mother of the five subject children – two daughters, a now-deceased daughter, and two sons. Respondent Kaysaun I. (father) was the biological father of the younger son and the younger daughter and resided with the mother and the five children in the family home. The Appellate Division was  reluctantly constrained to reverse Family Court’s determination that the father severely abused the deceased child and derivatively severely abused the older daughter and the older son. As the Court has previously made clear, and as petitioner and the attorney for the child conceded, unlike findings of abuse and neglect, which may be made against “any parent or other person legally responsible for a child’s care” (Family Ct Act § 1012[a]), the current statutory language contained in Social Services Law § 384–b (8)(a)(I) only permits a finding of severe abuse to be made against a child’s “parent.” Because he was not the biological father of these children, Family Court was statutorily precluded from rendering such findings and it was  therefore, constrained to reverse same. In a footnote the court urged the Legislature to expeditiously amend Social Services Law § 384–b (8) to address the concerns it raised.

 

 

 Court’s failure to consult with the child or directly ascertain his wishes as required by Family Ct. Act § 1089[d] did not warrant reversal of change of permanency goal where  it heard extensive testimony regarding the child’s emotional state and best interests,

            In Matter of Isayah R., 189 A.D.3d 1942 (3d Dept.,2021) respondent was the mother of a child (born in 2010) who had special needs. In May 2016, petitioner commenced a neglect proceeding against respondent, alleging that she was unable to provide appropriate supervision for the child due to ongoing substance abuse issues. The child was removed from respondent’s care in June 2016 and resided in a therapeutic foster home since that time. In May 2019 – at respondent’s request – psychologist Claude Schleuderer conducted a psychological evaluation of respondent, the child and the foster parents, after which he issued a report opining that “the best long-term solution [for the child was] ... an [o]pen [a]doption.” In connection with Schleuderer’s findings, petitioner filed a permanency report seeking to change the child’s permanency goal from reunification with respondent to placement for adoption. Following a permanency hearing, Family Court granted petitioner’s request, finding that “[a] permanency plan of placement for adoption” was in the child’s best interests. The Appellate Division agreed with  with respondent that Family Court failed to conduct an age-appropriate consultation with the child prior to changing the permanency goal (see Family Ct. Act § 1089[d] ), but concluded that reversal was unnecessary in these circumstances. Pursuant to Family Ct. Act § 1089(d), Family Court must undertake an “age appropriate consultation with the child.” Although the statute does not require a personal consultation with the child, it does obligate the court to find “some age-appropriate means of ascertaining [the child’s] wishes.” Although Family Court did not speak with the child or directly ascertain his wishes, it heard extensive testimony from Schleuderer regarding the child’s emotional state and best interests, as well as his opinion about respondent’s ability to handle the child’s special needs. Schleuderer’s evaluation report, which was admitted into evidence during the hearing, noted the child’s feelings about his foster care placement and connection to the foster parents and emphasized that transferring the child to respondent’s care would be detrimental to the child’s long-term functioning. During the permanency hearing, the attorney for the child conveyed the child’s feelings about the “uncertainty of his future,” and one of the foster parents recounted certain questions the child had asked her in which he indicated his feelings about being adopted. Under these circumstances, the court’s failure to consult with the child or directly ascertain his wishes did not warrant reversal.

February 16, 2021

 

 

Appellate Division, Second Department

Since the court declined to sign the defendant’s prior order to show cause, the defendant’s prior motion was neither made nor determined. A notice for discovery and inspection is palpably improper if it is overbroad, burdensome, fails to specify with reasonable particularity many of the documents demanded, or seeks irrelevant or confidential information

            In Lombardi v Lombardi, --- N.Y.S.3d ----, 2021 WL 262287, 2021 N.Y. Slip Op. 00426) the defendant filed an order to show cause seeking, inter alia, that the Supreme Court direct service of his motion, and pursuant to CPLR 3103(a) for a protective order striking the plaintiff’s notice for discovery and inspection. The court declined to sign the order to show cause. The defendant then moved, inter alia, for leave to reargue his prior motion, and, as additional relief, an order of preclusion pursuant to CPLR 3126 precluding plaintiff from offering certain evidence at trial. Supreme Court denied defendant’s motion for leave to reargue on the grounds that it was untimely and that the court did not misapprehend any facts. The court denied the remaining branches of the defendant’s motion. The Appellate Division held that the court should have considered, on the merits, the defendant’s motion for a protective order. Since the court declined to sign the defendant’s prior order to show cause, the defendant’s prior motion was neither made (see CPLR 2211) nor determined (see CPLR 2221[d][2]). Thus, there was no need for the defendant to seek leave to reargue the prior motion, and the court erred by, in effect, denying those branches of the defendant’s motion which were for a protective order and to impose sanctions on the ground that the defendant’s motion did not comply with CPLR 2221(d)(2) and (3).

            The Appellate Division observed that CPLR 3101(a) requires, in pertinent part, “full disclosure of all matter material and necessary in the prosecution or defense of an action.” However, “[a] party is not entitled to unlimited, uncontrolled, unfettered disclosure.” The Supreme Court may issue a protective order striking a notice for discovery and inspection that is palpably improper (see CPLR 3101[a]. A notice for discovery and inspection is palpably improper if it is overbroad, burdensome, fails to specify with reasonable particularity many of the documents demanded, or seeks irrelevant or confidential information. Where the discovery demand is overbroad, the appropriate remedy is to vacate the entire demand rather than to prune it. It found that the plaintiff’s notice for discovery and inspection was palpably improper in that it was overbroad and burdensome, sought irrelevant or confidential information, and failed to specify with reasonable particularity many of the documents demanded. Defendant’s motion which was pursuant to CPLR 3103(a) for a protective order striking the plaintiff’s notice for discovery and inspection should have been granted.

            The Appellate Division held that Supreme Court providently exercised its discretion in denying defendant’s motion pursuant to CPLR 3126 to preclude the plaintiff from offering certain evidence at trial. The defendant failed to make a clear showing that any failure to comply with court-ordered discovery was willful and contumacious.

 

 

Plenary action required to seek to set aside the stipulation of settlement, incorporated but not merged into the judgment of divorce unless reformation is sought to conform the agreement with the intent of the parties, or where the matrimonial action is still pending and not terminated with entry of a judgment, or in certain circumstances where enforcement of child support is sought.

            In Jagassar v Deonarine, --- N.Y.S.3d ----, 2021 WL 359472, 2021 N.Y. Slip Op. 00549 (2d Dept.,2021) a judgment of divorce, which incorporated but did not merge the parties stipulation of settlement, was entered on May 19, 2015. In March 2018, the defendant moved, inter alia, to enforce certain provisions of the parties’ stipulation of settlement. The plaintiff opposed the motion, arguing that the stipulation of settlement was unconscionable, and cross-moved to vacate the stipulation of settlement. The Supreme Court vacated the provisions of the stipulation of settlement concerning equitable distribution and maintenance without a hearing on the ground that those provisions “shock[ed] the conscience.” The court also denied the defendant’s enforcement motion. The Appellate Division reversed and remitted for a new determination. It held that under the circumstances presented here, a plenary action was required to seek to set aside the stipulation of settlement, which was incorporated but not merged into the judgment of divorce. There are exceptions to this general rule, such as where reformation of a separation agreement is sought to conform the agreement with the intent of the parties, or where the matrimonial action is still pending and was not terminated with entry of a judgment, or in certain circumstances where enforcement of child support is sought (see Barany v. Barany, 71 A.D.3d 613). None of these exceptions were applicable here.

 

 

 

As Family Ct Act § 580–706[e] does not specify how the tribunal shall notify the nonregistering party of the registration of a foreign support order CPLR 2103, governing the service of papers, is applicable.

            In Matter of Laczko v Szoca, 2021 WL 359336 (2d Dept.,2021) the petitioner, filed a petition in the Family Court, in 2019, to vacate the registration of an order of support from a Hungarian court which had been registered by the respondent in the Family Court in 2015 pursuant to the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (the Convention). The Support Magistrate, dismissed the petition as untimely. The Appellate Division affirmed. It observed that a party contesting a registered Convention support order shall file a contest not later than thirty days after notice of the registration, but if the contesting party does not reside in the United States, the contest must be filed not later than sixty days after notice of the registration” (Family Ct Act § 580–707[b]). “If the nonregistering party fails to contest the registered Convention support order by the time specified ... the order is enforceable” (Family Ct Act § 580–707[c]).  Pursuant to Family Court Act article 5–B, “a foreign support order may be registered in this state by sending” certain enumerated “records to the appropriate tribunal in this state” (Family Ct Act § 580–602[a]; see Family Ct Act § 580–706[a]).” The tribunal shall promptly notify the parties of the registration” (Family Ct Act § 580–706[e]). It held that as the Family Court Act does not specify how the tribunal shall notify the nonregistering party of the registration of the foreign support order the provisions of CPLR 2103, governing the service of papers, are applicable. Pursuant to CPLR 2103(b)(2), “service by mail shall be complete upon mailing; where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period”. The petition to vacate the registration of the Hungarian support order was filed almost four years after the petitioner had been served with the notice of registration. The petitioner did not dispute that the notice of registration had been sent in 2015 to the address at which he received mail in New York at that time, and as such, there was a rebuttable presumption that he received the notice in 2015. The petitioner’s mere denial of receipt was insufficient to rebut the presumption of receipt. Thus, the Family Court properly denied the petitioner’s objection to the order, which dismissed his petition to vacate the registration of the Hungarian order as untimely (see Family Ct Act § 580–707[b]).

 

 

 

Appellate Division, Fourth Department

Dismissal of enforcement proceeding reversed where Court did not consider the statutory factors and allow the parties to submit information regarding these factors before determining that New York is an inconvenient forum (DRL § 76-f [2]).

            In Henshaw v Hildebrand, --- N.Y.S.3d ----, 2021 WL 404851, 2021 N.Y. Slip Op. 00653 (4^th Dept., 2021) the Appellate Division agreed with the father that the court erred in granting the motion to dismiss the enforcement petition on the ground that the State of Texas was the appropriate forum. The issue of inconvenient forum dismissal is addressed to Family Court’s discretion after consideration of the statutory factors (Domestic Relations Law § 76-f [2]). The court is required to consider the statutory factors and allow the parties to submit information regarding these factors before determining that New York is an inconvenient forum”. Here, the court failed to permit the father to submit information concerning the statutory factors, and the record did not indicate whether the court considered them; thus, the court erred insofar as it granted the motion on that basis. In any event, it concluded that the court erred in granting the motion inasmuch as the mother submitted no evidence in support of the motion and failed to specify any statutory or other legal basis for the requested relief.

 

 

 Where matter “involves an uncomplicated disposition or simple judgment for a sum of money which speaks for itself,” the judgment may be entered by the clerk

 

            In Jolley v Lando, --- N.Y.S.3d ----, 2021 WL 405216, 2021 N.Y. Slip Op. 00679 (4^th Dept.,2021) the Appellate Division observed that CPLR 5016 (c) provides that a “[j]udgment upon the decision of a court or a referee to determine shall be entered by the clerk as directed therein. When relief other than for money or costs only is granted, the court or referee shall, on motion, determine the form of the judgment.” Where a matter “involves an uncomplicated disposition or simple judgment for a sum of money which speaks for itself,” the judgment may be entered by the clerk without prior submission to the court (Funk v Barry, 89 NY2d 364, 367 [1996]). As the prior order did not direct any party to settle or submit a judgment to the court, a judgment could be entered by the clerk without prior submission to the court. In addition, the second ordering paragraph of the prior order provided that defendant “shall pay to [p]laintiff the sum of $238,670 for equitable distribution pertaining to the Lindley, New York property; said money to be paid within 30 days.” That was simple directive for payment of a sum of money which speaks for itself, and thus a judgment on that amount could be entered by the clerk.

 

 

Under certain circumstances, the court may order an upward modification of child support retroactive to a date prior to the filing of the modification petition but they did not apply         

 

            In Matter of Oneida County DSS on behalf of Christman v Bleau, --- N.Y.S.3d ----, 2021 WL 405796 (Mem), 2021 N.Y. Slip Op. 00763 (4^th Dept., 2021) although the Appellate Division agreed with petitioner that, under certain circumstances, the court may order an upward modification of child support retroactive to a date prior to the filing of the modification petition (citing Matter of Oneida County Dept. of Social Servs. v Abu-Zamaq, 177 AD3d 1412, 1413 [4th Dept 2019]; Matter of Department of Social Servs. v Douglas D., 226 AD2d 633, 634 [2d Dept 1996]; Matter of Monroe County Dept. of Social Servs. v Campbell, 161 AD2d 1176, 1177 [4th Dept 1990]; see also Family Ct Act § 451), petitioner failed to present sufficient evidence supporting an upward modification retroactive to a date earlier than that ordered by the Support Magistrate. Moreover, contrary to petitioner’s contention, Family Court Act § 449 (2) did not permit the court to direct that the child support modification be retroactive to the date the father was released from incarceration under the circumstances of this case.

 

 

Family Court           

Family Court Act §1091 motion by youth to return to foster care denied where child failed to show a compelling reason to order his return to foster care.

 

            In Matter of K.U., 135 N.Y.S.3d 803 (Family Court, 2021) the Family Court denied the motion of the youth to return to foster care. It observed that Family Court Act §1091, states that “a motion to return a former foster care youth under the age of twenty-one, who was discharged from foster care due to a failure to consent to continuation of placement if there is a compelling reason for such former foster care youth to return to foster care”. It applies to any youth under 21 who has been in foster care, who left foster care because they did not consent to remain there, and now wants to return to foster care. Matter of Jefry H., 102 A.D.3d 132, 138, 955 N.Y.S.2d 90 (2nd Dept. 2012) concerned a youth who had been adjudicated a Person in Need of Supervision under FCA Article 7. The Court overturned the trial court’s denial of the youth’s motion to re-enter foster care after finding that the youth was a “former foster care youth” within the meaning of FCA § 1091. The Court noted that the legislature’s intent in creating article 10-B of the Family Court Act did not restrict the reentry of youths to only child protective proceedings. A motion made pursuant to this section must show by affidavit or other evidence that: (1) the former foster care youth has no reasonable alternative to foster care; (2) the former foster care youth consents to enrollment in and attendance at an appropriate educational or vocational program ;(3) re-entry into foster care is in the best interests of the former foster care youth; and (4) the former foster care youth consents to the re-entry into foster care.” The Court found that K.U. failed to show a compelling reason to order his return to foster care. He was incarcerated at Rikers Island, facing several felony charges as an adult. K.U.’s criminal defense attorney acknowledged that the jurist in the criminal case was not granting K.U. youthful offender status. The Court did not have any have information that K.U. could even be released from jail if it ordered his return to foster care. Nor did the Court have information before it that a residential treatment program is the actual plan for K.U. Thus, there was no “compelling reason” to return to foster care placement within the meaning of Family Court Act § 1091. It distinguished Jefry H. in that there the youth presented facts that led the Court to conclude that there was a compelling reason for him to return to foster care: the youth had no place to live and no means of support.

Recent Decisions and Legislation February 1, 2021

 

February 1, 2021

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Appellate Division, First Department

Appellate Divison affirms Charging Lien based upon account stated where no objection to invoices during year long representation

 

            In Trafelet v Cipolla & Co., LLC, --- N.Y.S.3d ----, 2021 WL 189200, 2021 N.Y. Slip Op. 00274 (1^st Dept.,2021) the Appellate Division affirmed an order which granted Buchanan Ingersoll & Rooney PC’s motion to fix the amount of its charging lien against plaintiff based upon an account stated, Nonparty respondent Buchanan Ingersoll & Rooney PC (BIR) submitted proof that it entered into a retainer agreement with plaintiff and sent her regular invoices to which she did not object during the course of the firm’s year-long engagement. Her subsequent counsel’s vague and noncommittal statement in court questioning the propriety of BIR’s bills was insufficient to constitute timely objection to BIR’s account stated claim.

           

 

 

           

 

 

Appellate Division, Second Department

 

Spouse seeking to set aside postnuptial agreement bears the burden to establish a fact-based, particularized inequality. Motion to set aside an agreement between spouses may be denied without a hearing if the agreement is fair on its face.     

 

            In Hershkowitz v Levy, --- N.Y.S.3d ----, 2021 WL 191304, 2021 N.Y. Slip Op. 00299 (2d Dept.,2021) an action for a divorce  the Appellate Division affirmed Supreme Court’s determination to deny defendant’s motion to set aside the postnuptial agreement on the grounds of unconscionability, overreaching, breach of fiduciary duty, fraud, and lack of consideration.

 

           The Appellate Division held that a  spouse seeking to set aside a postnuptial agreement initially bears the burden to establish a fact-based, particularized inequality. Where this initial burden is satisfied, a proponent of a postnuptial agreement suffers the shift in burden to disprove fraud or overreaching.

 

            The Appellate Division noted that postnuptial agreements are contracts which require consideration. Contrary to the defendant’s contention, the parties’ postnuptial agreement did not lack consideration. Both parties gave up rights to the other’s compensation in exchange for keeping their own. Both parties waived their right to maintenance from the other party. As such, the defendant’s contention that the postnuptial agreement should be set aside for lack of consideration also failed.

 

            The Appellate Division held that a motion to set aside an agreement between spouses may be denied without a hearing if the agreement is fair on its face. Here, as the postnuptial agreement was fair on its face and free from any fraud or overreaching, no hearing was necessary prior to ruling on the defendant’s motion.

 

 

Emancipation is automatic when child enters  military service

 

    In Beck v Beck, --- N.Y.S.3d ----, 2021 WL 125068, 2021 N.Y. Slip Op. 00222 (3  Dept, 2021) the Appellate Division held that a child is deemed emancipated if he or  she enters the military service. Emancipation is automatic when the child enters the       military service.

 

 

To prevail claim of ineffective assistance of counsel, appellant must demonstrate absence of strategic or other legitimate explanations’ for counsel’s alleged shortcomings.

 

       In Matter of Cook v Sierra, --- N.Y.S.3d ----, 2021 WL 115878 (Mem), 2021 N.Y. Slip Op. 00170(2d Dept.,2021) the Appellate Division held that the father was  not deprived of the effective assistance of counsel. The statutory right to counsel under Family Court Act § 262 affords protections equivalent to the constitutional standard of effective assistance of counsel afforded to defendants in criminal proceedings. An attorney representing a client is entitled to make ‘strategic and tactical decisions concerning the conduct of trials. What constitutes effective assistance is not and cannot be fixed with precision, but varies according to the particular circumstances of each case. (Matter of Adam M.M. [Sophia M.], 179 A.D.3d at 802, quoting People v. Rivera, 71 N.Y.2d 705, 708,). To prevail on a claim of ineffective assistance of counsel, it is incumbent on the appellant to demonstrate the absence of strategic or other legitimate explanations’ for counsel’s alleged shortcomings. Here, the father failed to establish the absence of strategic or other legitimate explanations for his counsel’s alleged shortcomings.

 

 

Sound and substantial basis is standard of review FCA § 1028(a) application for the return of a child

 

In Matter of Iven J.E., 2021 WL 191255 (2d Dept.,2021) the Appellate Division held that an application pursuant to Family Court Act § 1028(a) for the return of a child who has been temporarily removed shall be granted unless the court finds that ‘the return presents an imminent risk to the child’s life or health. In making its determination, the court must weigh, in the factual setting before it, whether the imminent risk to the child can be mitigated by reasonable efforts to avoid removal. Ultimately, the Family Court must balance that risk against the harm removal might bring, and it must determine factually which course is in the child’s best interests. On appeal, the Court must assess whether the record provides a sound and substantial basis to support the Family Court’s determination.

 

 

Factors to be considered in computing Counsel Fee award under FCA §438

 

            In Abizadeh v Abizadeh, --- N.Y.S.3d ----, 2021 WL 191276 (Mem), 2021 N.Y. Slip Op. 00308 (2d Dept.,2012) the Appellate Division affirmed an order which denied the fathers application for counsel fees in this family court child support proceeding. It held :”The factors to be considered in computing an appropriate award include the parties’ ability to pay, the merits of the parties’ positions, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of counsel’s performance and the fees under the circumstances.

 

 

Appellate Division, Third Department

 

 

Jurisdiction of Neglect Proceedings including ICPC proceedings is governed by the UCCJEA

 

In Matter of Diana XX v Nicole YY, --- N.Y.S.3d ----, 2021 WL 202709, 2021 N.Y. Slip Op. 00352(3d Dept.,2021) the Appellate Division held that jurisdiction over a neglect proceeding does not depend upon the situs of the neglect. Jurisdiction is governed by the UCCJEA. The UCCJEA vests Family Court with jurisdiction over neglect proceedings when, inter alia,, New York “is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state” (Domestic Relations Law § 76[1][a]). Under the UCCJEA, the “home state” is defined as “the state in which [the] child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement” of the proceeding (Domestic Relations Law § 75–a [7] ).  Here, despite the absence of a hearing or evidence on the matter, there was no dispute that the children and their respective parents/custodian had lived in New York for at least six consecutive months prior to the April 2019 commencement of the neglect proceeding in Tennessee, thereby making New York the children’s home state (see Domestic Relations Law §§ 75–a [7]; 76[1][a] ).Thus, pursuant to the UCCJEA, Family Court had jurisdiction over the neglect proceeding commenced in Tennessee (see Domestic Relations Law § 76[1][a] ). Family Court, however, had the discretion to decline jurisdiction if it determined – upon consideration of eight statutorily-enumerated factors – that it was “an inconvenient forum under the circumstances and that a court of another state [was] a more appropriate forum” (Domestic Relations Law § 76–f [1], [2] ).(Domestic Relations Law § 76–f [2][a]-[h] ).

 

            The Appellate Division found that Family Court did not engage in the requisite consideration of the statutory factors before declining to accept jurisdiction from the Tennessee court. It reviewed the record and found that Family Court improperly declined to accept jurisdiction from Tennessee. It further found that Family Court erred in vacating a December 2019 amended order of custody and dismissing both of petitioner’s Family Ct Act article 6 petitions.  Family Court did so without conducting a hearing or taking evidence on the issues and erroneously relied upon hearsay statements made by DSS regarding a purported ICPC report. Inasmuch as Family Court did not afford petitioner adequate notice and opportunity to be heard on the matters, Family Court’s vacatur of the December 2019 amended order and dismissal of the petitions raised serious due process concerns and, therefore, had to be reversed.

 

January 16, 2021

 

Appellate Division, First Department

 

 

Extreme Hardship established by disbarred attorney despite proof of his former lavish lifestyle where expenditures were funded by disability payments which came to an undisputed end

 

In Palmer v Spadone-Palmer --- N.Y.S.3d ----, 2021 WL 96220 (1^st Dept.,2020) the Appellate Division observed that an  order or judgment incorporating an agreement providing for maintenance will not be modified without a showing of extreme hardship (see Domestic Relations Law § 236[B][9][b][1]). Here, the court properly found that the husband would suffer extreme hardship if held to the maintenance obligations under the settlement agreement. The wife’s primary argument was that the husband’s claims of extreme hardship were undermined by the proof of his lavish lifestyle, including significant discretionary expenditures for himself and his then-girlfriend. The wife made a compelling presentation that the husband liberally indulged in this regard, but did not show reason to question that, as the trial court observed, the expenditures were funded by disability payments he received from April 2015 through March 2017, a source of funding that came to an undisputed end. As the court recognized, the husband’s reckless spending of these amounts was unjustifiable, and should have been used towards the support of his wife and children. However, most relevant to the hardship analysis, because these payments came to an end, they were not illustrative of the husband’s overall financial situation, which considerably worsened from where it had been at the time of the settlement agreement. The wife argued the husband did not make good faith efforts to seek new employment after termination from Matlin Patterson, but ignored by virtue of his guilty plea, he was disbarred and precluded from possessing any financial series licenses for 10 years, and his options were accordingly limited.

 

 

Award of  interim counsel fees vacated where  award was not intended for defendant to “carry on or defend the action or proceeding,” but as a form of sanction against the husband

 

 In Kass v Machles, --- N.Y.S.3d ----, 2021 WL 54901 (Mem), 2021 N.Y. Slip Op. 00089 (1^st Dept.,2021) Supreme Court, inter alia,  confirmed the report of the Special Referee to the extent of adjudging plaintiff in civil contempt for his failure to comply with the subpoena at issue, and awarded defendant counsel fee. The Appellate Division vacated the adjudication of contempt and the interim counsel fee award. Defendant’s motion seeking to hold plaintiff in contempt was not referred to the Referee, and, accordingly, the Referee’s finding on that issue was not a proper basis for the court’s adjudication of contempt against plaintiff. The court’s subsequent nunc pro tunc order referring the contempt motion to the Referee to hear and report was insufficient to cure the jurisdictional defect. To find otherwise would impermissibly obviate the statutory requirements of the CPLR.

 

            The Appellate Division vacated the award of interim counsel fees under Domestic Relations Law § 237(a) since the award was not intended for defendant to “carry on or defend the action or proceeding,” but as a form of sanction against the husband, without any consideration by the court of the parties’ respective financial circumstances.

 

 

Appellate Division, Second Department

 

 

In considering  whether grandparent visitation is in the children’s best interests, a number of factors are considered, including the attorney for the children’s assessment and the children’s wishes

 

 

            In Matter of Sandra R v Matthew R., 2020 WL 7775398 (3d Dept.,2020) the Appellate Division, Third Department reiterated the rule that in determining a grandparent visitation application  Family Court is required to undertake a two-part inquiry. First, the court must find that the grandmother has standing to seek visitation. Once standing is established, then the court must determine if visitation with the grandmother is in the best interests of the children. In considering  whether visitation is in the children’s best interests, a number of factors are considered, including the nature and extent of the existing relationship between the grandparent and children, the basis and reasonableness of the parent’s objections, the grandparent’s nurturing skills and attitude toward the parents, the attorney for the children’s assessment and the children’s wishes (Matter of Susan II. v. Laura JJ., 176 AD3d 1325, 1327 [2019].

 

Causes of action to set aside agreement on grounds of fraud, and on grounds of duress, coercion, or overreaching sustained

 

            In Heinemann v Heinemann, 2020 WL 7760324 (2d Dept.,2020) an action to set aside a separation agreement the Appellate Division affirmed an order which denied defendants cross motion to dismiss the complaint on the ground of fraud. The defendant failed to conclusively demonstrate that the plaintiff had no cognizable cause of action alleging fraud. The elements of a cause of action sounding in fraud are a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation, and damages. The complaint alleged that the plaintiff was represented in the divorce action by an attorney selected and paid for by the defendant, and that the plaintiff was advised by his attorney that he could request a change to only one provision in the stipulation. The complaint further alleged that after the plaintiff signed the stipulation, the defendant made material changes to various provisions governing, inter alia, maintenance, child support, custody, and parental access, and that the stipulation filed with the court was not the same stipulation that he had signed. The complaint also alleged that the plaintiff did not receive “any final divorce documents” from his attorney, and that he did not learn of the changes made to the stipulation by the defendant until after the defendant commenced an enforcement proceeding in the Family Court. The plaintiff attached to the complaint a copy of the stipulation he claimed to have signed. Under these circumstances, it agreed with the court’s determination to deny the motion to dismiss the first cause of action, seeking to set aside the stipulation on the ground of fraud.

 

            The Appellate Division also agreed with the Supreme Court’s determination to deny the defendant’s cross motion to dismiss the third cause of action, seeking to set aside the stipulation on the grounds of duress, coercion, or overreaching. A contract is voidable on the ground of duress when it is established that the party making the claim was forced to agree to it by means of a wrongful threat precluding the exercise of his or her free will. To rescind a separation agreement on the ground of overreaching, a plaintiff must demonstrate both overreaching and unfairness. No actual fraud need be shown, for relief will be granted if the settlement is manifestly unfair to a spouse because of the other’s overreaching in its execution. Courts may examine the terms of the agreement as well as the surrounding circumstances to ascertain whether there has been overreaching. However, generally, if the execution of the agreement is fair, no further inquiry will be made. The allegations in the complaint that the defendant threatened the plaintiff that he would never see the children again if he did not agree to her proposed terms, that the defendant had the plaintiff arrested and threatened to pay his bail only if he agreed to her proposed terms, and that the defendant exercised her position of financial superiority to the plaintiff’s disadvantage were sufficient to allege a cognizable cause of action alleging duress, coercion, or overreaching.

 

 

 

In a paternity proceeding, personal jurisdiction over a nonresident putative father may be established pursuant to Family Court Act § 580-201.    

 

       In Matter of Joyce M.M v Robert J.G, 187 A.D.3d 1610, 134 N.Y.S.3d 121, 2020 N.Y. Slip Op. 05616 (4^th Dept.,2020) Petitioner, the maternal grandmother and custodian of the  child, filed a petition for paternity seeking a determination that respondent was the biological father of the child and alleging, inter alia, that respondent had sexual intercourse with the mother at the time of the child’s conception. The Court granted the motion of Respondent, a resident of North Carolina, to dismiss the petition the grounds that Family Court lacked personal jurisdiction over him. The Appellate Division held that the court erred in granting respondent’s motion based upon Family Court Act § 519, which was enacted to provide exceptions to the common-law rule that paternity proceedings customarily abate upon the unavailability of the putative father. It does not prevent personal jurisdiction from being established over an available party. In a paternity proceeding, personal jurisdiction over a nonresident putative father may be established pursuant to Family Court Act § 580-201. Petitioner, however, admittedly failed to allege in her petition that respondent engaged in sexual intercourse with the mother in New York State at the time of conception, or that he had any other relevant ties to New York State, and no other grounds for jurisdiction apply (see Family Ct. Act § 580-201 [6], [8]). Under the circumstances of this case, the court should have granted the motion on the alternative ground that petitioner failed to state a cause of action predicated upon respondent’s sexual intercourse with the mother in New York State. Inasmuch as such a dismissal is not on the merits, however, it held that the petition should be dismissed without prejudice and modified the order accordingly.

 

 

January 1, 2021

 

 

​All recent Second Circuit and Circuit Courts of Appeal Hague Convention International Child abduction cases decided during 2020 are now posted on our website current through January 1, 2121 (Click on link to visit nysdivorce.com and scroll down)

 

 

Laws of 2020

 

Laws of 2020, Ch 376 effective December 23, 2020 amended the Judiciary Law to require reason for recusal

 

Laws of 2020, Ch 376 effective December 23, 2020 amended the Judiciary Law to add a new section 9. It provides that any judge who recuses himself  or  herself  from sitting  in  or  taking  any  part  in the decision of an action, claim,  matter, motion or proceeding must state the reason for  the  recusal  in  writing  or on the record. However, a judge is not required to provide a reason for recusal when the reason may result  in embarrassment, or is of a personal nature, affecting the judge  or  a   person  related to the judge within the sixth degree by consanguinity or    affinity.

 

Laws of 2020 , Ch 346 amended Family Court Act §1055 (e) and Family Court Act §1091

 

Under existing law, young adults can return to foster care when they have no alternative and agree to participate in a vocational or educational program, upon the approval of the Family Court.

 

Family Court Act §1055 (e)  was amended by Laws of 2020, Ch 346, effective December 15, 2020 to add a subdivision (ii) to allow a former foster care youth to re-enter the foster care system without having to file a motion with the family court during the state of emergency declared pursuant to executive order 202 of 2020 in response to the novel coronavirus (COVID-19) pandemic. The commissioner of the local social services department is required to consider the same factors that the court is required to consider when determining the appropriateness of the former foster care youth reentering the foster care system. Any requirement to enroll in vocational or education program when a former foster care youth reenters the system is  waived during the time of the state of emergency. This section clarifies that to the extent a former foster care youth is denied the request to return to the custody of the local commissioner of social services, or other board or department authorized to receive children as public charges, that the youth would still have the opportunity to file a motion as authorized pursuant to family court act 1092. (See 2020 NY Legis Memo 346)

 

 

Family Court Act §1091

 

The opening paragraph of Family Court Act §1091 was amended by Laws of 2020, Ch 346, effective December 15, 2020 to add a provision which requires that during the state of emergency declared pursuant to executive order 202 of 2020 in response to the novel coronavirus (COVID-19) pandemic that former foster care youth can re-enter the foster care system without making a motion to the court, and that any requirement to enroll and

attend an educational or vocational program will be waived for the dura-

tion of the state of emergency. This section also clarifies, subsequent to former foster youth's return to placement without making a motion, as authorized under this section during the COVID-19 state of emergency, that nothing in this section would prohibit a local social service district from filing a motion for requisite findings needed to claim reimbursement under Title IV-E of the Federal Social Security Act to support the youth's care, and the family court shall hear and determine such motions. (See 2020 NY Legis Memo 346)

 

 

 

Appellate Division, First Department

 

 

Joint legal custody not appropriate where one parent has been responsible for major decisions about the child with little input or interest from the other

 

            In Markis L v Jacquelyn C, --- N.Y.S.3d ----, 2020 WL 7391510 (Mem), 2020 N.Y. Slip Op. 07672 (1^st Dept.,2020) the Appellate Division affirmed on order which modified the 2007 custody award to the mother to award the father sole legal custody. It held that joint legal custody is not appropriate where the parties are unable to coparent, or where one parent has been responsible for major decisions about the child with little input or interest from the other (Matter of Johanna Del C.T. v. Gregorio A.L., 178 A.D.3d 430, 431, 111 N.Y.S.3d 175 [1st Dept. 2019]). The father credibly testified that the mother never sought to discuss the child’s education or medical care with him, she was increasingly incapable of meeting even the child’s basic needs without his assistance or assistance by the maternal grandmother, and that she sometimes lashed out at him, including physically. The father also credibly testified that he continued to encourage the child to spend time with the mother. The mother admitted that the father had been responsible for the child’s medical care for the past year, could not recall the address of the child’s school or the names of her teachers, and denied the impact of her mental illness on the child. Under these circumstances, the award of sole legal custody to the father had a sound and substantial basis in the record.

 

 

Appellate Division, Second Department

 

 

 Circumstances of contemporary daily interactions between men and women, warrants that the “opportunity” element of proof of adultery must be interpreted to mean more that mere “proximity,” but must instead necessarily mean “proximity plus.”

            In Agulnick v Agulnick, --- N.Y.S.3d ----, 2020 WL 7234017, 2020 N.Y. Slip Op. 07335) the parties were married in 2004. The husband commenced an action for divorce on October 3, 2018, alleging an irretrievable breakdown of the marriage. The verified amended answer contained a counterclaim for divorce on the ground of adultery under Domestic Relations Law § 170(4). The counterclaim alleged that from approximately March of 2014 and thereafter the husband openly engaged in an adulterous relationship with R.L., who slept in the marital home, vacationed with the husband in Florida, resided with him in another marital home in Florida, and accompanied him at social settings. The counterclaim alleged that the husband’s activities included sexual intercourse and was without the wife’s consent, connivance, privity, or procurement. The husband denied all allegations of adulterous behavior in a reply dated February 1, 2019.The husband moved, inter alia, for summary judgment dismissing that counterclaim under CPLR 3212. In support, the husband proffered an affidavit in which he stated that he “never engaged in a sexual relationship of any kind or nature with” R.L., who he identified by full name in the papers as the family babysitter. The husband further averred that the presence of R.L. in the parties’ homes was “at all times ... in a professional working capacity, approved and initiated by [the wife], wherein [R.L.] supervises our children.” The motion was also supported by an affidavit of R.L., where she identified herself as the babysitter and caretaker of the parties’ children, and stated that she “never engaged in a sexual relationship of any kind or nature with” the husband, and that “[a]ny and all times I have been in the [husband]’s presence have been in a professional working capacity wherein I supervises [sic] the parties’ children.” In opposition, the wife asserted in an affidavit that the husband has “shown an inclination and desire to commit adultery” by virtue of events that had admittedly occurred over a decade earlier. She also stated that the husband had the opportunity to commit adultery, as R.L. had vacationed with him during the marriage, spent a night at the marital residence and at a vacation home while the husband was present, and accompanied the husband at social functions. In reply, the husband and R.L. each provided affidavits in further support of summary judgment dismissing the adultery counterclaim. Both averred that R.L.’s overnight stays at the marital homes and on vacation were always in a babysitter capacity with the children present, that R.L. slept in a room at the marital home assigned to her by the wife, and that R.L. always attended any social events in a babysitter capacity with the wife and children present. Supreme Court denied the husband’s motion for summary judgment dismissing the adultery counterclaim. The court determined that the husband’s various submissions denying a sexual relationship with R.L. were “conclusory and self-serving,” and, failed to meet his prima facie burden on summary judgment.

 

            The Appellate Division reversed.  Justice Dillon noted that allegations of adultery present unique issues of proof. The conduct is oftentimes clandestine and out of public view, and proving it in such instances must depend upon circumstantial evidence. Recognizing this, decisional authority has held that adultery may be circumstantially proven by means of a three-part test consisting of (1) a lascivious desire, and (2) the opportunity to gratify the desire, and (3) acting upon the desire. Other authorities similarly summarize the three-part test as involving inclination, opportunity, and intent. The act itself must also meet the requirements of Domestic Relations Law § 170(4), which defines adultery “as the commission of an act of sexual intercourse, [or other] sexual conduct, voluntarily performed by [a spouse], with a person other than the [other spouse] after the [spouses’] marriage.” The case law that exists regarding adultery is restricted to trial judgments and appeals for much of the past century and more.

 

            The Court observed that the circumstantial evidence elements for adultery, consisting of lascivious desire, opportunity, and intent, date back to a time when women were not as routinely present in workplaces as they are now. Currently, men and women work side-by-side at the great majority of workplaces. They work in the same locations, attend meetings, share lunch rooms, participate in professional events, interact in social, political, religious, and charitable activities, exercise at gyms, and fly on airplanes together to faraway seminars and business trips. In addition, certain employees may reside at their employers’ homes including au pairs, household help, and home aides. The Court held that under the circumstances of contemporary daily interactions between men and women, the “opportunity” for infidelity cannot be interpreted to mean mere “proximity,” but must instead necessarily mean “proximity plus.” The “plus” need not be objective or irrefutable evidence. Instead, it may be facts or evidence from which reasonable inferences may be drawn, beyond the mere proximity of two people themselves. Proximity may be evidence sufficient to defeat summary judgment if accompanied by something more, such as, a hotel receipt for two, plane tickets for two to a particular destination deviating from the norm, potentially incriminating or suspicious e-mails or other writings, frequent get-togethers in non-professional settings, flirtatious behavior, or a suspicious conversation overheard by a witness. Such facts or evidence, beyond the mere temporal proximity of two persons, may permit an inference that a party’s “acts are more consistent with guilt than with innocence” (Trumpet v. Trumpet, 215 N.Y.S.2d 921, 924 [Sup. Ct., Kings County] ), and warrant the denial of summary judgment sought by the party accused of adulterous behavior.

 

            The Court found that the husband met his prima facie burden of establishing his entitlement to summary judgment dismissing the wife’s counterclaim alleging adultery (see Westervelt v. Westervelt, 26 N.Y.2d 865, 309 N.Y.S.2d 604, 258 N.E.2d 98 [two persons living together in one-family household and their social appearances together is insufficient circumstantial evidence to establish adultery]. In his affidavit, the husband stated that he “never engaged in a sexual relationship of any kind or nature with” R.L, and that R.L.’s presence in his various homes was “at all times ... in a professional working capacity.” Although the husband’s affidavit failed to address conduct alleged with R.L. while on vacation and at social events, R.L.’s affidavit, proffered by the husband in support of his motion, did address such conduct. R.L. identified herself in her affidavit as the babysitter for the parties’ children, denied “a sexual relationship of any kind or nature” with the husband, and states that she was in a professional working capacity at “[a]ny and all times ... in the [husband]’s presence.” R.L.’s affidavit is more expansive and all-encompassing than the husband’s affidavit to the extent that her denial of sexual conduct at “any and all times” necessarily extends beyond the husband’s homes to other settings, such as any vacation trip taken by members of the family and social occasions that R.L. attended. As to all of those occasions, R.L. explained that she was present to supervise the parties’ children and that she performed that job during those occasions. The court disagreed with the Supreme Court that the husband’s evidence in support of summary judgment dismissing the adultery counterclaim was conclusory and self-serving. The husband’s affidavit and R.L.’s separate affidavit contained specific averments which, read together, corroborate each other and satisfy his prima facie burden

           

            The Court rejected the husbands argument that the wife’s affidavit should not be considered in opposition to summary judgment dismissing the adultery counterclaim. Because CPLR 4502(a) statutorily disqualifies a spouse from testifying against the other spouse in an action grounded upon adultery, except to prove the marriage, disprove the adultery, or disprove the defense after evidence has been introduced tending to prove such defense (see CPLR 4502[a]). The Court held that contrary to the husband’s contentions, the wife’s affidavit in opposition to summary judgment may be properly considered, and had been considered, as it was submitted to oppose the husband’s own evidence that the adultery with R.L. had never occurred (cf. Tallent v. Tallent, 22 A.D.2d 988, 989, 254 N.Y.S.2d 722).

 

 

In absence of custody decision setting forth findings of fact and reasoning, appropriate scope of appellate review is de novo where record sufficient to permit review

 

In  Matter of Hreat v Hreat,--- N.Y.S.3d ----, 2020 WL 7379701 (Mem), 2020 N.Y. Slip Op. 07572 (2d Dept.,2020) a custody matter,  the Appellate Division held that findings of the hearing court  which have a sound and substantial basis in the record are generally entitled to great deference on appeal. However, inherent in the proposition that a reviewing court will give deference to the findings made by the hearing court is that the hearing court issued either a written or oral decision setting forth its findings of fact and conclusions of law. (CPLR 4213[b]). In the absence of a decision, orally or in writing, setting forth the findings of fact and reasoning for the Supreme Court’s determination, the appropriate scope of appellate review is de novo where the record is sufficiently complete to permit such review (see Matter of Newton v. McFarlane, 174 A.D.3d at 79, 103 N.Y.S.3d 445).

 

 

Due diligence requirement of CPLR 308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received

 

            In Matter of Ferrera v Serrano, --- N.Y.S.3d ----, 2020 WL 7379716, 2020 N.Y. Slip Op. 07567 (2d Dept.,2020) the father filed a petition for custody of the subject child for the purpose of obtaining an order, inter alia, making specific findings so as to enable the child to petition the United States Citizenship and Immigration Services for special immigrant juvenile status ( SIJS) pursuant to 8 USC § 1101(a)(27)(J). Thereafter, the father moved for the issuance of an order making the requisite declaration and specific findings so as to enable the child to petition for SIJS. Along with the petition, the father submitted affidavits of service attesting that, after three unsuccessful attempts to serve the mother at a residence in Honduras, the “affix and mail” method of service was utilized (see CPLR 308[4]). However, since the process server had not attested to any efforts he had made to verify that the address at which service was attempted was, in fact, the mother’s residence, the Family Court twice adjourned the matter to allow the father time to verify the mother’s address. As of the final adjourned date, the father had not submitted any further information or an updated affidavit of service. The court dismissed the petition without prejudice and  denied the father’s motion for the issuance of an order, inter alia, making the requested specific findings so as to enable the child to petition for SIJS.

 

            The Appellate Division affirmed. It noted that if  service cannot be effected, with due diligence, pursuant to CPLR 308(1) or (2), a party may serve process by affixing the summons and petition to the door of the recipient’s “actual place of business, dwelling place or usual place of abode,” and by mailing them either to the last known residence or actual place of business (CPLR 308[4]; see also Domestic Relations Law § 75–g; CPLR 313). The due diligence requirement of CPLR 308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received. It held that here, , where the father listed the mother’s address as “unknown” on the petition and testified at a hearing that he had no information about the mother’s whereabouts since the parties had separated 13 or 14 years earlier, the process server’s three attempts to serve process at an address in Honduras, without attesting to any efforts to verify that this was the mother’s address, did not constitute due diligence.

 

Court not required to inquire into his expenses on indigents application for assigned counsel

 

            In Alphonse v Alphonse, --- N.Y.S.3d ----, 2020 WL 7233597, 2020 N.Y. Slip Op. 07374 (2d Dept.,2020) the Appellate Division held that where a party has the right to the assistance of counsel (see Family Ct. Act § 262[a][v]) and requests counsel on the grounds of indigence the court must make an inquiry to determine whether the party is eligible for court-appointed counsel. Here, the court properly inquired as to the father’s eligibility for court-appointed counsel and instructed the father to submit certain documentation, including a form detailing his financial circumstances. While the father listed his weekly income on this form as $1,820, he failed to indicate on the form whether he provided financial support to any other individuals, or any of his expenses, aside from his monthly mortgage payments. As a result, the father failed to fully and timely make the disclosure necessary to support his claim of indigence. Contrary to the father’s contention, the court was not required to inquire any further into his expenses, and it agreed with its determination that he was not financially eligible for court-appointed counsel.

 

 

Appellate Division, Third Department

 

 

Sentence of commitment  may only continue until such time as the offender complies with the support order.

 

            In Matter of Rondeau v Jerome --- N.Y.S.3d ----, 2020 WL 7647902 (Mem), 2020 N.Y. Slip Op. 07960 (3d Dept.,2020) the Appellate Division held that Family Court abused its discretion by imposing a 90–day jail sentence for the father’s willful violation of a support order where the father presented payment at the hearing for the full amount of arrears owed.  Where a willful violation has been found, Family Court may “commit the respondent to jail for a term not to exceed six months. (Family Ct Act § 454[3][a] ). Such a sentence is in the nature of a civil contempt, which may only continue until such time as the offender, if it is within his or her power, complies with the support order. As the father presented payment at the hearing for the full amount of arrears owed Family Court abused its discretion when it issued the order of commitment