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Monday, December 02, 2019

Recent Decisions and Legislation December 1, 2019

December 1, 2019

New Website for Lawyers

Trial of a New York Matrimonial and Custody Action (www.nysdivorce.net)  deals with the trial of a New York matrimonial and custody action. It focuses on the procedure and rules of evidence for the trial of a New York matrimonial action or custody case, and contains questions for the examination and cross-examination of witnesses.

Recent Legislation

Laws of 2019, Ch 523, enacted and effective November 20, 2019, amended Family Court Act § 412(2)(d), Domestic Relations Law § 236[B](5-a) (b)(5) and Domestic Relations Law § 236[B](6)(b)(4) 

Laws of 2019, Ch 523, enacted and effective November 20, 2019, amended the Family Court Act and the Domestic Relations Law to change the biennial date of adjustment of the "income cap" under the maintenance guidelines law to coincide with the biennial adjustment date of the "income cap" under the Child Support Standards Act. Family Court Act § 412(2)(d), Domestic Relations Law § 236B(5-a)(b)(5) and § 236B(6)(b)(4) were amended to fix the date of the biennial adjustment of the temporary, post-divorce and spousal maintenance "income caps" at March 1" rather than January 31', as currently provided. By making the date March 1st rather than January 31st, the adjustment of the maintenance income cap would coincide with the date of adjustment of the child support combined parental income cap, as well as the date of adjustment of the federal poverty income level and self-support reserve.

The maintenance guidelines law which was enacted in 2015 provided that the maintenance income cap would be set initially at $175,000 and would increase pursuant to an adjustment formula keyed to increases in the CPI on January 31, 2016 and every two years thereafter. January 31' was the date set for adjustment of the temporary maintenance income cap under the temporary maintenance law, enacted in 2010, in effect prior to enactment of the maintenance guidelines law. It also was the date that the child support combined income cap pursuant to the Child Support Standards Act would have been adjusted. 

However, effective January 31, 2016, the date of adjustment of the Child Support Combined Income Cap was changed to March 1" rather than January 31' to conform with the date of adjustment of the self-support reserve pursuant
to Social Services Law § 111-I (2)(b). 

The adjustment date of the maintenance income cap was changed so that 
the adjustments in the maintenance and child support income caps all occur at the same time. 

Family Court Act § 412(2)(d) was amended to read as follows: 
(d) "income cap" shall mean up to and including one hundred  eighty-four  thousand  dollars  of  the  payor's  annual  income; provided, however, beginning March  first,  two thousand twenty and every two years thereafter, the income cap amount shall increase by the sum of the average annual percentage changes  in  the  consumer  price  index  for  all urban consumers (CPI-U) as published by the United States  department  of  labor  bureau  of  labor statistics for the prior two years multiplied by the then income cap and then  rounded  to  the nearest one thousand dollars. The office of court administration shall determine and publish the income cap. (Laws of 2019, Ch 523, § 1, effective November 20, 2019)
Domestic Relations Law § 236[B](5-a) (b)(5) was amended to read as follows:
(5) "Income cap" shall mean up to and including one hundred eighty-four  thousand  dollars  of  the  payor's  annual  income; provided, however, beginning March  first,  two thousand twenty and every two years thereafter, the income cap amount shall increase by the sum of the average annual percentage changes  in  the  consumer  price  index  for  all urban consumers (CPI-U) as published by the United States  department  of  labor  bureau  of  labor  statistics for the prior two years multiplied by the then income cap and then  rounded  to  the nearest one thousand dollars. The office of court administration shall determine and publish the income cap. (Laws of 2019, Ch 523, § 2, effective November 20, 2019)
  Domestic Relations Law § 236[B](6)(b)(4) was amended to read as follows:
     (4)  "Income cap" shall mean up to and including one hundred eighty-four  thousand  dollars  of  the  payor's  annual  income;  provided,  however,  beginning  March first, two thousand twenty and every two years thereafter, the income cap  amount shall increase by the sum of the average annual percentage changes in the consumer price  index  for  all  urban  consumers  (CPI-U)  as published  by  the  United  States  department  of labor bureau of labor statistics for the prior two years multiplied by the then income cap and then rounded to the nearest one thousand dollars. The office of court administration shall determine and publish the income cap.  (Laws of 2019, Ch 523, § 3, effective November 20, 2019)

Laws of 2019, Ch 434 enacted October 29, 2019, amended Family Court Act § 
1028-a (i), effective October 29, 2019.
 
  Family Court Act § 1028-a(a)(i) defines who may apply to become a foster parent under the circumstances described in that section. Applicants had been limited to relatives who were related within the third degree of consanguinity to either parent. This class of applicants excluded non-blood relatives, such as step-grandparents and "fictive" kin, who are included in the class of kinship foster parents who may exit foster care and become kinship guardianship with subsidies pursuant to social services law section 458-a thru 458-f. Family Court Act § 1028-a was amended to include to include, as eligible to apply to become foster parents,  all persons who are related to children as described in social services law §458-a (3) (a), (b), or (c)   who meet Family Court Act § 1028-a requirements.
 

Family Court Act § 1028-a provides:

§ 1028-a. Application of a relative to become a foster parent

 (a) Upon the application of a relative to become a foster parent of a child in foster care, the court shall, subject to the provisions of this subdivision, hold a hearing to determine whether the child should be placed with a relative in foster care. Such hearing shall only be held if:
(i) the person is related to the child as described under paragraph (a), (b), or (c) of subdivision three of section four hundred fifty-eight-a of the social services law;
(ii) the child has been temporarily removed under this part, or placed pursuant to section one thousand fifty-five of this article, and placed in non-relative foster care;
(iii) the relative indicates a willingness to become the foster parent for such child and has not refused previously to be considered as a foster parent or custodian of the child, provided, however, that an inability to provide immediate care for the child due to a lack of resources or inadequate housing, educational or other arrangements necessary to care appropriately for the child shall not constitute a previous refusal;
(iv) the local social services district has refused to place the child with the relative for reasons other than the relative's failure to qualify as a foster parent pursuant to the regulations of the office of children and family services; and
(v) the application is brought within six months from the date the relative received notice that the child was being removed or had been removed from his or her home and no later than twelve months from the date that the child was removed.
(b) The court shall give due consideration to such application and shall make the determination as to whether the child should be placed in foster care with the relative based on the best interests of the child.
(c) After such hearing, if the court determines that placement in foster care with the relative is in the best interests of the child, the court shall direct the local commissioner of social services, pursuant to regulations of the office of children and family services, to commence an investigation of the home of the relative within twenty-four hours and thereafter expedite approval or certification of such relative, if qualified, as a foster parent. No child, however, shall be placed with a relative prior to final approval or certification of such relative as a foster parent.

(Added L.2005, c. 671, § 3, eff. March 15, 2006. Amended L.2006, c. 12, § 2, eff. March 15, 2006; L.2019, c. 434, § 1, eff. Oct. 29, 2019.)

Laws of 2019, Ch 491, effective January 15, 2020, amended Domestic Relations Law §112 and Public Health Law 

The public health law was amended by adding a new section, § 4138-e. According to the Assembly Memorandum in support of the legislation the amendment is intended to restore adult adoptees' right to access information that non-adopted persons, including those who "age-out" of foster care, have a legal right to obtain. In New York, an adopted person cannot access his or her original birth certificate unless the adopted person goes through a judicial proceeding and, even then, the outcome does not guarantee that access will be granted. This amendment  will allow adult adoptees, or if the adopted person is deceased, the adopted person's direct line descendants, or the lawful representatives of such adopted person (living) or lawful representatives of such deceased adopted person's direct line descendants, to obtain a certified copy of the adopted person's original long form birth certificate. Adoptees will continue, under existing law, to be able to secure "non-identifying" information which may include, but not be limited to, their religious and ethnic heritage and medical history information that may be necessary for preventive health care and the treatment of illnesses linked to family history and genetics. To whatever extent "non-identifying" information may be unavailable, the restoration of the civil right to one's own original birth certificate will restore equal opportunity for seeking
such information.
 

Public Health Law § 4138-e  provides that an adopted person eighteen years of age, or if the adopted person is deceased, the adopted person's direct line descendants, or the lawful representatives of such adopted person, or lawful representatives of such deceased adopted person's direct line descendants can obtain a certified copy of the adopted person's original long form birth certificate, from the commissioner or a local registrar, in the same manner as such certificates are available to persons born in the state of New York who were not adopted. It also requires the commissioner to provide the adopted person or other authorized person with the background information about the adopted child and the adopted child's birth parents sent to the commissioner pursuant to subdivision 1 of § 114 of the domestic relations law.
 
In addition, in the event that the commissioner does not have the
original birth certificate of an adopted person, it requires courts and other agencies that have records containing the information that would have appeared on the adopted person's original long form birth certificate to provide such information, including all identifying information about the adopted person's birth parents, to the adult
adopted person or other authorized person upon a simple written request therefor that includes proof of identity. (Section 1)

 
Public Health Law § 4138, subd 4 was amended to authorize the commissioner to make microfilm or other suitable copies of an original certificate of birth in accordance with section 4138-e and to authorize the commissioner to provide a certified copy of the original long form certificate of birth to an adult adopted person in accordance with § 4138-e of the public health law. (Section 2)

Public health law § 4138 subd. 5 was amended to state that a certified copy of the original long form certificate of birth of such a person shall be issued to an adult adopted person in accordance with § 4138-e of the public health law. (Section 3)
 
Public Health Law § 4138 subd. 3 (a) was amended to authorize a local registrar to provide a certified copy of the original long form certificate of birth to an adult adopted person in accordance with § 4138-e of the public health law. (Section 4)
 
Public Health Law § 4138 subd. 3 (b) was amended to authorize a local registrar to provide a certified copy of the original long form certificate of birth to an adult adopted person in accordance with § 4138-e of the public health law. (Section 5)
 
Public Health Law § 4138 subd. 8 was added of the public health law to authorize adopted persons eighteen years of age or older, or the birth parent (s), to submit a change of name and/or address to be attached to the original birth certificate of the adopted person. (Section 6)  

Public Health Law § 4138-d was amended to remove the provision that allows an adoption agency to restrict access to non-identifying information that is not in the best interest of the adoptee, the biological sibling or the birth parent(s). (Section 7)
 
Public Health Law § 4104 was amended to include additional provisions under vital statistics that would be applicable to the city of New York. (Section 8)
 
Domestic Relations Law § 114, subd. 1 was amended to require that any order of adoption direct that the information to be provided to the adoptive parents about the child and the child's birth parents shall include the child's and birthparents' information at the time of surrender and, in addition, that the information provided to the
adoptive parents also be provided to the commissioner of health. (Section 9)
 
The effective date of the amendments is January 15, 2020. (Section 10)

Appellate Division, First Department

Appellate Division, Second Department


Second Department affirms judgment directing father to provide exclusively kosher food and make “all reasonable efforts to ensure that the children’s appearance and conduct comply with ‘Hasidic’ religious requirements

In Cohen v Cohen, 2019 WL 6139488 (2d Dept.,2019) the parties were married in 2009 and had two children, born in 2011 and 2013. During the early years of the marriage, the parties practiced Satmar Hasidic Judaism. At a certain point, the defendant (father) became non-religious, although he continued to appear religious in his dress and customs. The parties separated in December 2016. In January 2017, the plaintiff (mother) commenced the action for a divorce. Following a nonjury trial, the Supreme Court awarded the mother sole physical and legal custody of the children, with parental access to the father. The father was directed to provide the children with exclusively kosher food and to make “all reasonable efforts to ensure that the children’s appearance and conduct comply with the ‘Hasidic’ religious requirements of the [mother] and of the children’s schools as they were raised while the children are in [his] physical custody.” The court emphasized that it was not mandating any specific mode of dress or religious practices for the father during his periods of parental access.
The Appellate Division affirmed the custody award. It observed that when presented as an issue, religion may be considered as one of the factors in determining the best interests of a child, although it alone may not be the determinative factor. New York courts will consider religion in a custody dispute when a child has developed actual religious ties to a specific religion and those needs can be served better by one parent than the other.
The father challenged the Supreme Court’s direction that he provide the children with exclusively kosher food and make “all reasonable efforts to ensure that the children’s appearance and conduct comply with the ‘Hasidic’ religious requirements of the [mother] and of the children’s schools as they were raised while the children are in [his] physical custody.” The father contended that this provision was unconstitutional and not in the children’s best interests, relying primarily on the Court’s decision in Weisberger v. Weisberger. 154 A.D.3d 41, 60 N.Y.S.3d 265. 

The Appellate Division distinguished Weisberger, where the Supreme Court enforced a religious upbringing clause in the parties’ separation agreement by ordering that, during any period of parental access or during any appearance at the children’s schools, the mother “must practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy,” or be relegated to supervised therapeutic visitation. On appeal in Weisberger, the Second Department determined that it was “wholly inappropriate to use supervised [parental access] as a tool to compel the plaintiff to comport herself in a particular religious manner”. This Court held that the Supreme Court had run afoul of constitutional limitations by compelling the mother to herself practice a religion, rather than merely directing her to provide the children with a religious upbringing. Here, by contrast, the father was directed to make reasonable efforts to ensure the children’s compliance with their religious requirements. The Supreme Court expressly stated that it was not mandating any specific mode of dress or religious practices for the father during his periods of parental access.
 
The Appellate Division pointed out that in the absence of a written agreement, the custodial parent may determine the religious training of the children. Since the mother was the custodial parent entitled to determine the children’s religious training, and since the children had consistently adhered to Hasidic practices throughout their lives, the Supreme Court providently exercised its discretion in directing the father to provide the children with exclusively kosher food and to make all reasonable efforts to ensure the children’s compliance with their religious requirements while they are in his physical custody. It emphasized, as did the Supreme Court, that the defendant was not required, at any time, to himself comply with any religious practices. It further emphasized that the standard was one of reasonable efforts, not perfection.


Husband who waive interest in wife’s degree, directed to contribute to wife’s student loan debt where attainment of degree did benefit the marriage by enhancing her earning capacity and bringing more income into the marriage.

  In Santamaria v Santamaria, --- N.Y.S.3d ----, 2019 WL 5945643, 2019 N.Y. Slip Op. 08239 (2d Dept.,2019) the parties were married on December 3, 2000, and had two children. The plaintiff-husband commenced the action for a divorce on August 2, 2013. 

The Appellate Division held that Supreme Court providently exercised its discretion in awarding the plaintiff-husband a separate property credit of $332,000 related to the marital residence, and awarding the defendant a 50% share of any equity in the residence that accrued from 2002 until the date of its sale. The evidence at trial demonstrated that in 2002, the plaintiff’s mother transferred ownership of the subject property, where she resided, to the plaintiff and retained a life estate in the property. In 2010, after the death of plaintiff’s mother, the plaintiff transferred ownership of the property to himself and the defendant. At the time, the property was appraised at a value of $332,000. In 2011, after renovations were conducted, the parties and their children moved to the property, and it became the marital residence. The plaintiff’s conveyance of the home in 2010 to himself and the defendant presumptively changed the character of the home from separate property to marital property. It agreed with the court’s determination to award the plaintiff a separate property credit in the amount at which the residence was valued at the time the property was transferred to both parties. Furthermore, in light of the evidence that significant marital funds were used over the years to help preserve the plaintiff’s separate property asset, the court providently exercised its discretion in awarding the defendant 50% of any equity in the marital residence that accrued from 2002 until the date of its sale.
 
  The Appellate Division held that considering the relevant factors, the Supreme Court should have awarded the defendant-wife maintenance of $750 per month, commencing December 15, 2015, for a period of four years or until she remarries. Thus, it modified the judgment of divorce accordingly.

The defendant contended that the Supreme Court improvidently exercised its discretion in awarding the plaintiff child support retroactive to the date of the commencement of the action, rather than the date of the judgment of divorce. She argued that during the litigation, the parties and their children resided together in the marital residence, and the children’s needs were provided for by both parties.
Under the particular facts and circumstances of this case, the Appellate Division disagreed with the Supreme Court’s determination to award the plaintiff child support retroactive to the date of the commencement of the action. While the action was commenced on August 2, 2013, the plaintiff was not awarded residential custody of the children until the court issued an order dated November 18, 2015. The plaintiff failed to establish that he had de facto residential custody of the children at any earlier point in time. Thus, under these particular facts and circumstances, it found that the court should have awarded child support retroactive to November 18, 2015, the date of the custody order. In light of the financial circumstances of the parties, it agreed with the court’s determination directing the defendant to pay retroactive child support arrears at a rate of $150 per month, and not awarding the plaintiff statutory interest on the unpaid balance.
 
The Appellate Division agreed with the Supreme Courts direction to the plaintiff to pay $20,000 of defendant’s student loan debt. The plaintiff contended that the court should not have directed him to pay any portion of the defendant’s student loan debt, because he waived any interest in the defendant’s Bachelor’s degree, and the evidence failed to establish what portion of the loans was incurred during the marriage. It observed that a  spouse is generally required to bear the obligation of repayment of the balance of a student loan taken out by that spouse during the course of the marriage where “no benefit inured to the marriage” (Heydt–Benjamin v. Heydt–Benjamin, 127 A.D.3d 814, 815, 6 N.Y.S.3d 582). Here, however, there was evidence that the defendant’s attainment of her Bachelor’s degree in business administration did benefit the marriage by enhancing her earning capacity and bringing more income into the marriage. The testimony established that prior to obtaining her Bachelor’s degree, the defendant was only able to work in restaurants and a hotel as a waitress, earning a very limited salary. At the time of the trial, however, the defendant had been employed with Winston Staffing Services as a headhunter, earning a salary of $50,000 annually plus commissions. Although the plaintiff waived any interest in the defendant’s degree, the defendant’s enhanced earning ability did benefit the marriage, and it was not unreasonable for the Supreme Court to direct the plaintiff to pay a portion of the defendant’s student loans, which were incurred during the marriage and were owed since 2005. The evidence at trial demonstrated that the outstanding student loan balance was approximately $52,000, and that the majority of the student loans were incurred during the marriage. Thus, it agreed with the court’s determination to direct the plaintiff to pay $20,000 of the outstanding student loan debt.


Appellate Division, Fourth Department

Family Court erred when it determined that father’s alleged violation of the child support order was willful because it did not afford the father opportunity to be heard and present witnesses
 
In Matter of Green v Lafler, --- N.Y.S.3d ----, 2019 WL 6042451, 2019 N.Y. Slip Op. 08306 (4th Dept.,2019) the Appellate Division agree with the father that the court erred when it determined that the father’s alleged violation of the child support order was willful because it did not afford the father with the opportunity to be heard and present witnesses. Although “[n]o specific form of a hearing is required, ... at a minimum the hearing must consist of an adducement of proof coupled with an opportunity to rebut it” (Thompson, 59 A.D.3d at 1105, 873 N.Y.S.2d 786. Moreover, “[i]t is well settled that neither a colloquy between a respondent and [the] [c]ourt nor between a respondent’s counsel and the court is sufficient to constitute the required hearing” (Davis, 104 A.D.3d at 1228, 960 N.Y.S.2d 806). None of the parties’ appearances on the violation petition consisted of an adducement of proof coupled with an opportunity to rebut it. At most, there was merely “a colloquy” between the father and Support Magistrate, which is insufficient to constitute the required hearing. Moreover, there was nothing in the record to establish that petitioner mother provided admissible evidence with respect to the father’s alleged willful failure to pay child support, nor was there any admissible evidence submitted by the Support Collection Unit. Also, the father was never given the opportunity to present evidence rebutting the allegations in the petition. It reversed the order and remitted the matter to Family Court for a hearing on the petition in compliance with Family Court Act § 433.
 


November 16, 2019


New Website for Lawyers
Trial of a New York Matrimonial and Custody Action (www.nysdivorce.net)  deals with the trial of a New York matrimonial and custody action. It focuses on the procedure and rules of evidence for the trial of a New York matrimonial action or custody case, and contains questions for the examination and cross-examination of witnesses.


New York Court Rules
By Joint orders, effective February 15, 2019, and June 1, 2019, the Judicial Departments of the Appellate Division amended the rule regarding the Statement of Client’s Rights and Responsibilities set forth in section 1400.2 of Part 1400 of Title 22 of the Official Compilations of Codes, Rules and Regulations of the State of New York. 

The amended Rule provides as follows: 

Section 1400.2. Statement of client's rights and responsibilities

An attorney shall provide a prospective client with a statement of client's rights and responsibilities in a form prescribed by the Appellate Divisions, at the initial conference and prior to the signing of a written retainer agreement. If the attorney is not being paid a fee from the client for the work to be performed on the particular case, the attorney may delete from the statement those provisions dealing with fees. The attorney shall obtain a signed acknowledgment of receipt from the client. The statement shall contain the following:
STATEMENT OF CLIENT'S RIGHTS AND RESPONSIBILITIES
An attorney is providing you with this document to inform you of what you, as a client, are entitled to by law or by custom. To help prevent any misunderstanding between you and the attorney, please read this document carefully.
If you ever have any questions about these rights, or about the way your case is being handled once you retain the attorney, you are responsible to ask your attorney. Your attorney should be readily available to represent your best interests and to keep you informed about your case.
An attorney may not refuse to represent you on the basis of race, creed, color, sex, sexual orientation, age, national origin or disability.
You are entitled to an attorney who will be capable of handling your case; show you courtesy and consideration at all times; represent you zealously; and preserve your confidences and secrets that you reveal in the course of the relationship, to the extent permitted by law. You are responsible to communicate honestly, civilly and respectfully with your attorney.
If you are hiring an attorney you and your attorney are required to sign a written retainer agreement which must set forth, in plain language, the nature of the relationship and the details of the fee arrangement. Before you sign the retainer agreement, you are responsible to read it and ask the attorney any questions you have before you sign it. At your request, and before you sign the agreement, you are entitled to have your attorney clarify in writing any of its terms, or include additional provisions.
You are entitled to fully understand the proposed rates and retainer fee before you sign a retainer agreement, as in any other contract. The retainer fee you pay to the attorney, as is written in the retainer agreement, may not be enough money to pay for all the time that the attorney works on your case.
You may refuse to enter into any fee arrangement that you find unsatisfactory.
An attorney may not request a fee that is contingent on the securing of a divorce or on the amount of money or property that may be obtained.
An attorney may not request a retainer fee that is nonrefundable. That is, should you discharge the attorney, or should the attorney withdraw from the case with Court permission, before the retainer has been used up, the attorney is entitled to be paid commensurate with the work performed on your case and any expenses. The attorney must return to you any balance of the retainer that has not been used. However, the attorney may enter into a minimum fee arrangement with you that provides for the payment of a specific amount below which the fee will not fall based upon the attorney's handling of the case to its conclusion.
You are entitled to know the approximate number of attorneys and other legal staff members who will be working on your case at any given time and what you will be charged for the services of each.
You are entitled to know in advance how you will be asked to pay legal fees and expenses, and how the retainer, if any, will be spent.
You may be responsible at the beginning of the case or before or after the trial to contribute to or pay the other party's attorney's fees and other costs if the Court has ordered you to do so.
The other party may be responsible to contribute to or to pay your attorney's fees, if the Court orders the other party to do so. However, if the other party fails to pay the Court ordered fee, you are still responsible for the fees owed to your attorney and experts in your case.
You are required to pay for court filing fees, process servers as well as fees for expert reports, testimony, depositions and/or trial testimony and you may seek reimbursement from the other party.
If you engage in conduct which is found to be frivolous or meant to intentionally delay the case you could be fined or sanctioned and/or responsible for additional fees.
At your request, and after your attorney has had a reasonable opportunity to investigate your case, you are entitled to be given an estimate of approximate future costs of your case. That estimate shall be made in good faith but may be subject to change due to facts and circumstances that develop during your case. There are no guarantees that the cost of your case will be as originally estimated.
You are entitled to receive a written, itemized bill on a regular basis, at least every 60 days.
You are expected to review the itemized bills sent to you by your attorney, and to raise any objections or errors in a timely manner in writing. Time spent in discussion or explanation of bills will not be charged to you.
You are responsible to be honest and truthful in all discussions with your attorney, and to provide all relevant information and documentation to enable her or him to competently prepare your case. Attorneys and clients must make reasonable efforts to maintain open communication during business hours throughout the representation. An attorney may seek to be relieved as your attorney if you are not honest and truthful with her or him.
You are entitled to be kept informed of the status of your case, and to be provided with copies of correspondence and documents prepared on your behalf or received from the court or your adversary.
Your attorney is required to discuss the following with you: a) the automatic orders that are in effect once either party files a summons with notice; b) the law that provides for the financial support of the children, the Child Support Standards Act, if you and the other party have children under the age of twenty-one; and c) the law that provides for the financial support of the parties, the Maintenance Guidelines Statute.
You are responsible to be present and on time in court at the time that conferences, oral arguments, hearings and trials are conducted unless excused by the Judge or the part rules of the assigned Judge.
You are entitled to make the ultimate decision on the objectives to be pursued in your case, and to make the final decision regarding the settlement of your case. Your attorney has the right to send you written communications if your attorney disagrees with how you want your case handled.
Your attorney's written retainer agreement must specify under what circumstances he or she might seek to withdraw as your attorney for nonpayment of legal fees. If an action or proceeding is pending, the court may give your attorney a “charging lien,” which entitles your attorney to payment for services already rendered at the end of the case out of the proceeds of the final order or judgment. In some cases your attorney may exercise a “retaining lien” which, subject to Court proceedings, may allow them to keep your file as security.
You are under no legal obligation to sign a confession of judgment or promissory note, or to agree to a lien or mortgage on your home to pay for legal fees. Your attorney's written retainer agreement must specify whether, and under what circumstances, such security may be requested. In no event may such security interest be obtained by your attorney without prior court approval and notice to your adversary. An attorney's security interest in the marital residence cannot be foreclosed against you.
You are entitled to have your attorney's best efforts exerted on your behalf, but no particular results can be guaranteed.
If you entrust money with an attorney for an escrow deposit in your case, the attorney must safeguard the escrow in a special bank account. You are entitled to a written escrow agreement, a written receipt, and a complete record concerning the escrow. When the terms of the escrow agreement have been performed, the attorney must promptly make payment of the escrow to all persons who are entitled to it.
Once your Judgment of Divorce is signed, if you are re-retaining an attorney you must sign a new retainer agreement.
If you are expecting your attorney to prepare and file documents related to the transfer of a house, co-op or lease, that must be specified in the retainer agreement. The signing of an agreement or Court order that transfers title does not transfer a co-op apartment or a house. A separate document must be prepared and filed.
In the event of a fee dispute, you may have the right to seek arbitration pursuant to Part 137 of the Rules of the Chief Administrative Judge where the dispute involves a sum of more than $1,000.00 or less than $50,000.00 unless you agree otherwise. Your attorney will provide you with the necessary information regarding arbitration in the event of a fee dispute, or upon your request.
Receipt Acknowledged:
___________________________________ Attorney's signature
___________________________________ Client's signature
___________________________________ Date Form 1400.2-1(2/19)




UNIFIED COURT SYSTEM OF THE STATE OF NEW YORK
STATEMENT OF CLIENT'S RIGHTS AND RESPONSIBILITIES
(To be used only when representation is without fee)

An attorney is providing you with this document to inform you of what you, as a client, are entitled to by law or by custom. To help prevent any misunderstanding between you and the attorney, please read this document carefully.
If you ever have any questions about these rights, or about the way your case is being handled once you retain the attorney, you are responsible to ask your attorney. Your attorney should be readily available to represent your best interests and to keep you informed about your case.
An attorney may not refuse to represent you on the basis of race, creed, color, sex, sexual orientation, age, national origin or disability.
You are entitled to an attorney who will be capable of handling your case; show you courtesy and consideration at all times; represent you zealously; and preserve your confidences and secrets that you reveal in the course of the relationship to the extent permitted by law. You are responsible to communicate honestly, civilly and respectfully with your attorney.
Even though you are being represented by an attorney without fee, you may be responsible at the beginning of the case or before or after the trial to contribute to or pay the other party's attorney's fees and other costs if the Court has ordered you to do so.
Even though you are being represented by an attorney without fee, the other party may be responsible to contribute to or to pay your attorney's or expert fees in your case, if the Court orders the other party to do so.
You may be required to pay for court filing fees, process servers as well as fees for expert reports, testimony, depositions and/or trial testimony and you may seek reimbursement from the other party. The attorney will discuss this with you.
If you engage in conduct which is found to be frivolous or meant to intentionally delay the case you could be fined or sanctioned and/or responsible for additional fees.
You are responsible to be honest and truthful in all discussions with your attorney, and to provide all relevant information and documentation to enable her or him to competently prepare your case. Attorneys and clients must make reasonable efforts to maintain open communication during business hours throughout the representation. An attorney may seek to be relieved as your attorney if you are not honest and truthful with her or him.
You are entitled to be kept informed of the status of your case, and to be provided with copies of correspondence and documents prepared on your behalf or received from the court or your adversary.
Your attorney is required to discuss the following with you: a) the automatic orders that are in effect once either party files a summons with notice; b) the law that provides for the financial support of the children, the Child Support Standards Act, if you and the other party have children under the age of twenty-one; and c) the law that provides for the financial support of the parties, the Maintenance Guidelines Statute.
You are responsible to be present and on time in court at the time that conferences, oral arguments, hearings and trials are conducted unless excused by the Judge or the part rules of the assigned Judge.
You are entitled to make the ultimate decision on the objectives to be pursued in your case, and to make the final decision regarding the settlement of your case. Your attorney has the right to send you written communications if your attorney disagrees with how you want your case handled.
You are entitled to have your attorney's best efforts exerted on your behalf, but no particular results can be guaranteed.
If you entrust money with an attorney for an escrow deposit in your case, the attorney must safeguard the escrow in a special bank account. You are entitled to a written escrow agreement, a written receipt, and a complete record concerning the escrow. When the terms of the escrow agreement have been performed, the attorney must promptly make payment of the escrow to all persons who are entitled to it.
If you are expecting your attorney to prepare and file documents related to the transfer of a house, co-op or lease, you may have to make arrangements with another attorney to do so, and if the attorney charges you a fee, you must sign a retainer agreement with the other attorney. The signing of an agreement or Court order that transfers title does not transfer a co-op apartment or a house. A separate document must be prepared and filed.
Receipt Acknowledged:
___________________________________ Attorney's signature
___________________________________ Client's signature
___________________________________ Date Form 1400.2-2(6/19)


Appellate Division, First Department

Appellants argument that he “simply forgot the date,” does not constitute a reasonable excuse for vacating a default.

In Krystal R. V Kriston L, 2019 WL 5876030 (1st Dept.,2019) the Appellate Divison held that, in refusing to vacate Respondents default, that he failed to demonstrate a reasonable excuse for his failure to appear at the hearing on the family offense petition (see CPLR 5015[a][1]). Although respondent contended that he was evicted a month before the hearing and subsequently lost his phone, he also admitted that he “simply forgot the date,” which does not constitute a reasonable excuse (see Matter of Jenny F. v. Felix C., 121 AD3d 413 [1st Dept 2014]). He was present during the scheduling of the hearing, and it was his responsibility to verify the date with his attorney or the Family Court itself (see e.g. Matter of Yadori Marie F. [Osvaldo F.], 111 AD3d 418, 419 [1st Dept 2013]).


Whether respondent eventually satisfied his arrears has no bearing on the court’s finding of willfulness. Support Magistrate not required to address probation as an additional enforcement remedy where raised by Support Magistrate

In Matter of Eve S.P., v. Steven N.S., --- N.Y.S.3d ----, 2019 WL 5876171, 2019 N.Y. Slip Op. 08130 (1st Dept.,2019) an enforcement proceeding, the Appellate Division found that by submitting evidence that respondent was delinquent in his support payments (see Family Court Act § 454[3][a]), petitioner established prima facie that respondent willfully violated his child support obligations. It held that whether respondent eventually satisfied his arrears had no bearing on the court’s finding of willfulness (see Matter of Shkaf v. Shkaf, 162 AD3d 1152, 1155 [3d Dept 2018]), particularly in light of his previous violations of his support obligations.
 
The Appellate Division rejected Petitioners argument that, in addition to entering a money judgment against respondent for the arrears, the support magistrate was required to address probation as an additional enforcement remedy, and that the support magistrate’s failure to set forth the “facts and circumstances” on which the decision not to place respondent on probation was based violated FCA § 454(4). Section 454(4) provides, “The court shall not deny any request for relief pursuant to this section unless the facts and circumstances constituting the reasons for its determination are set forth in a written memorandum of decision.” The Court held that probation is a matter within the sound discretion of Family Court (Matter of Delaware County Dept. of Social Servs. v. Brooker, 272 A.D.2d 835, 836 [3d Dept 2000], citing FCA § 454[3][a]). The record showed that the possibility of placing respondent on probation was first raised by the support magistrate. Petitioner cited no authority in support of her contention that the support magistrate’s aforementioned omission amounted to a statutory violation requiring remand for further proceedings.
 

“Very high burden” necessary for challenging prenuptial agreement

In DiPietro v Vatsky, --- N.Y.S.3d ----, 2019 WL 5791626, 2019 N.Y. Slip Op. 07989 (1st Dept.,2019) the Appellate Division held that Defendant husband’s efforts to meet his “very high burden” for challenging the parties’ prenuptial agreement failed (Anonymous v. Anonymous, 123 A.D.3d 581, 582, 999 N.Y.S.2d 386 [1st Dept. 2014]). The parties, both educated and savvy professionals with significant assets of their own, were each represented by independent counsel, and entered into the prenuptial agreement after a period of negotiations several months before the marriage. Plaintiff’s alleged failure to disclose did not provide a ground to set aside the prenuptial agreement particularly, here, where defendant proceeded to execute the prenuptial agreement despite his claim that plaintiff refused to supply him with financial documents. It agreed with the motion court that the prenuptial agreement and its amendments were not the product of overreaching. The prenuptial agreement, which included joint waivers of maintenance, the right to equitable distribution, and the right to election, was not so “manifestly unfair” as to warrant equity’s intervention. Although the transfer of defendant’s house to plaintiff may not have been in his best financial interest, defendant’s attorney made his objection to this provision abundantly clear. Defendant proceeded to execute the prenuptial agreement over his attorney’s objection. Thus, even if, in retrospect, this specific provision was improvident or one-sided, it did not provide a ground to vitiate the prenuptial agreement.

Appellate Division, Second Department


An award of counsel fees under Family Ct Act ' 438 should be based upon the totality of the circumstances, including the equities and circumstances of each particular case

In Roberts v Roberts,     N.Y.S.3d     , 2019 WL 5581904, 2019 N.Y. Slip Op. 07787 (2d Dept.,2019) the father filed a petition for a downward modification of his maintenance and child support obligations. Following a hearing, the court dismissed the father=s petition, granted the mother=s attorney counsel fees, and directed the entry of a money judgment in favor of the mother=s attorney and against the father in the sum of $9,221.25. The Appellate Division affirmed. It observed that a court may allow counsel fees at any stage of a proceeding under Family Court Act article 4 (see Family Ct Act ' 438). In determining an appropriate award of counsel fees, the court must consider factors such as 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. Ultimately, the award should be based upon the totality of the circumstances, including the equities and circumstances of each particular case. Under the totality of the circumstances of this case, the mother was entitled to an award of counsel fees, and the Support Magistrate did not improvidently exercise her discretion in directing the entry of a money judgment in favor of the mother=s attorney.
 

Unless it can be shown that the trial court improvidently exercised that discretion, its equitable distribution determination should not be disturbed

  In Ambrose v Ambrose,     N.Y.S.3d     , 2019 WL 5582047, 2019 N.Y. Slip Op. 077577 (2d Dept.,2019) the parties were married in January 2012, and were the parents of one child, born in 2013. In October 2015, the plaintiff commenced the action for a divorce. The Appellate Division held, inter alai, that Supreme Court did not improvidently exercise its discretion in denying the defendant a distributive share of the plaintiff=s retirement assets. The trial court is vested with broad discretion in making an equitable distribution of marital property and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed.  Upon consideration of the relevant statutory factors and all of the attendant circumstances, including, inter alia, the short duration of the parties= marriage, the age and health of the parties, and that the defendant was awarded full title to her nonvested retirement assets, which were also subject to equitable distribution, there was no basis upon which to disturb the court=s determination.



Appellate Division, Fourth Department


Written notice of counsel’s motion to withdraw is required. Purported withdrawal without proof that reasonable notice was given is ineffective

In Matter of Gonzalez v Bebee, --- N.Y.S.3d ----, 2019 WL 5850893 (Mem), 2019 N.Y. Slip Op. 08027 (4th Dept.,2019) the Appellate Division reversed an order which  inter alia, sentenced respondent to jail for contempt of court and an order , in effect, confirmed the determination of the Support Magistrate, upon the father’s purported default, that he willfully violated a prior child support order and directed that he be incarcerated. It held that the Support Magistrate erred in allowing the father’s attorney to withdraw as counsel and in proceeding with the hearing in the father’s absence. “An attorney may withdraw as counsel of record only upon a showing of good and sufficient cause and upon reasonable notice to the client ... [, and a] purported withdrawal without proof that reasonable notice was given is ineffective” (Matter of Williams v. Lewis, 258 A.D.2d 974, 974, 685 N.Y.S.2d 382 [4th Dept. 1999]; see CPLR 321[b][2]; Matter of La’Derrick W., 63 A.D.3d 1538, 1539, 880 N.Y.S.2d 805 [4th Dept. 2009]). The father’s attorney did not make a written motion to withdraw. Counsel merely agreed when the Support Magistrate, after noting the father’s failure to appear for the hearing, offered to relieve her of the assignment. The absence of evidence that the father was provided notice of his counsel’s decision to withdraw in accordance with CPLR 321(b)(2) rendered the Support Magistrate’s finding of default improper, and Family Court thus erred in confirming those findings. It remitted the matter to Family Court for the assignment of new counsel and a new hearing on the violation petition of petitioner mother.

Monday, November 04, 2019

Recent Decisions and Legislation November 1, 2019


Appellate Division, Second Department

Forensic Report property admitted in custody case pursuant to 22 NYCRR 202.16(g)

            Comment: The Court of Appeals has held that forensic reports are not admissible in custody cases unless they are admitted pursuant to stipulation or upon consent of the parties. Kesseler v. Kesseler, 10 N.Y.2d 445, 225 N.Y.S.2d 1, 180 N.E.2d 402 (1962). However, 22 NYCRR 202.16(g)(2) provides that in the discretion of the court, written expert reports may be used to substitute for direct testimony at the trial. The reports must be submitted by the expert under oath, and the expert must be present and available for cross-examination.  To be admissible the forensic report can not rely upon information other than that upon which an expert may properly base an opinion. see Jemmott v. Lazofsky, 5 A.D.3d 558, 772 N.Y.S.2d 840; Wagman v. Bradshaw, 292 A.D.2d 84, 86–87, 739 N.Y.S.2d 421).Matter of D'Esposito v Kepler, 14 AD3d 509, 788 N.Y.S.2d 169 (A.D. 2 Dept.2005)

            In Matter of Raymond v Raymond, 174 A.D.3d 625, 107 N.Y.S.3d 433, 2019 N.Y. Slip Op. 05546  (2d Dept., 2019) the mother filed a petition seeking sole custody of the parties’ only child, who resided with her. The father initially was awarded parental access every weekend. He subsequently filed a petition seeking increased parental access. Family Court granted the mother’s petition and denied the father’s petition. The Appellate Division agreed  with the Family Court’s determination to  admit the forensic report into evidence. The parties received access to the report well in advance of the scheduled hearing, the forensic evaluator testified and was cross-examined by the parties at the hearing, the parties had  the opportunity to rebut the forensic evaluator’s findings, and the conclusions in the report were based primarily on the forensic evaluator’s firsthand interviews rather than on hearsay statements made by nontestifying declarants.


Appellate Divison holds that test generally applied for setting combined parental income cap is whether child is receiving enough to meet his or her actual needs and the amount required to live an appropriate lifestyle

In Pandis v Lapas, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 5057564, 2019 N.Y. Slip Op. 07267(2d Dept.,2019) the parties were married in 1992. There were  two children of the marriage, S.P., born in 1999, and N.P., born in 2005. The plaintiff commenced this action for divorce on January 9, 2012. Supreme Court awarded the defendant sole custody of the children, and declined to direct any parental access between the plaintiff and the children. In terms of child support, the court set the combined parental income cap at $250,000. The court directed the plaintiff to pay child support of $3,593.75 per month, which was 69% of the basic child support for the two children. The court also directed the plaintiff to pay 69% of the children=s add‑on expenses, including private school tuition and college tuition.  The Appellate Division held, among other things, that Supreme Court did not err in setting the combined parental income cap for child support purposes at $250,000.  Where Athe combined parental income exceeds the [statutory cap], the court shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in [Domestic Relations Law ' 240(1Bb)(f)] and/or the child support percentage@ (Domestic Relations Law ' 240[1Bb][c][3]. The test generally applied is whether the child is receiving enough to meet his or her >actual needs and the amount required ... to live an appropriate lifestyle= @


Party must demonstrate Aexigent or compelling circumstances@ supporting request for an adjournment to obtain counsel at late stage in the hearing

            In Matter of Eckstein v Young, 2019 WL 5057835 (2d Dept., 2019) the Appellate Division affirmed an order which granted the mother custody and permission to relocate to Connecticut. The Appellate Division, inter alia,  rejected the fathers argument that he was denied the right to counsel. The right to be represented by counsel of one=s own choosing is qualified in the sense that a party may not employ such right as a means to delay judicial proceedings. Absent exigent or compelling circumstances, a court may, in the exercise of its discretion, deny a party=s request to substitute counsel made on the eve of or during trial if the party has been accorded a reasonable opportunity to retain counsel of his [or her] own choosing before that time. Family Court providently exercised its discretion in denying the father=s request for an adjournment to obtain new counsel When the father requested this adjournment, the hearing had been ongoing for three years; the father had finished presenting his case, including testifying on his own behalf and calling two witnesses, and the mother had completed most of her case, including testifying on her own behalf on six dates and calling two witnesses. The father failed to demonstrate that there were Aexigent or compelling circumstances@ supporting his request for an adjournment at this late stage in the hearing, and given that the father was represented for the first several years of the proceedings, there is no indication that he lacked Aa reasonable opportunity to retain counsel@ before the date on which he requested the adjournment.


Mothers willful interference with fathers right to parental access] so inconsistent with the best interests of the child as to, warrant custody award to father, despite forensic evaluator recommending custody to mother

In Matter of Nieves v Nieves, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2019 WL 5057657, 2019 N.Y. Slip Op. 07261 (2d Dept.,2019) Family Court, denied the mother=s petition for sole legal and physical custody of the parties= child and granted the father=s petition for sole legal and physical custody of the child. The Appellate Division affirmed.  In September 2016, a court‑appointed forensic evaluator prepared a forensic evaluation, noting extensive evidence that the mother and the stepfather had engaged in behavior intended to alienate the child from the father. Despite this evidence, as well as other concerns regarding the mother=s parenting, the forensic evaluator recommended against awarding custody to the father on the ground that it would be Adevastat[ing]@ to the child. Family Court concluded that despite the forensic evaluator=s recommendation, subsequent events warranted awarding sole custody to the father on the ground, among others, that he was better able to foster the child=s relationship with the noncustodial parent. The Appellate Division observed that >[w]illful interference with a noncustodial parent=s right to [parental access] is so inconsistent with the best interests of the child[ ] as to, per se, raise a strong probability that the offending party is unfit to act as a custodial parent=. The record was replete with evidence of the efforts of the mother and the stepfather to thwart the father=s parental access and alienate the child from the father. The mother and the stepfather appeared to be Apunish[ing the child] for having a relationship with [him]@ by, inter alia, forcing the child to take telephone and video calls with the father outdoors, even in inclement weather, taking a tablet that had been provided by the father to facilitate the video calls and that the stepfather claimed was Agarbage,@ and confiscating gifts from the father. The mother and the stepfather also repeatedly refused to cooperate with travel plans, and the father, among other things, had to seek a writ of habeas corpus to bring the child to the airport for a planned visit. Moreover, the mother and the stepfather disparaged the father and his family to the child and caused the child to worry that the mother would not permit him to continue a relationship with the father. This conduct was so inconsistent with the child=s best interests as to warrant awarding sole legal and physical custody to the father, notwithstanding the fact that the mother had been the primary custodian. Further, as the court observed, at the time the forensic evaluator made his recommendation that a change of custody would be detrimental to the child, the relationship between the father and the child was Aextremely tenuous,@ whereas, due to Athe extended visits,@ they subsequently developed a Asolid relationship.@

Recent Decisions and Legislation October 16, 2019



Appellate Division, Second Department

In 9-year, marriage 42-year-old wife, incapable of maintaining employment because of symptoms experienced as result of multiple sclerosis, awarded maintenance until age 67

            In Murphy v Murphy, --- N.Y.S.3d ----, 2019 WL 4656304, 2019 N.Y. Slip Op. 06780 (2d Dept.,2019) the parties were married on September 18, 2004, and had no children together. Prior to the marriage, the plaintiff was diagnosed with multiple sclerosis. On March 19, 2013, the plaintiff commenced the action for a divorce. The parties entered into a stipulation in which they resolved, inter alia, the issue of equitable distribution. At the time of trial, the plaintiff was 42 years old and the defendant was 47 years old. After the trial, the court determined, inter alia, that the plaintiff was incapable of maintaining employment because of the symptoms she experienced as a result of multiple sclerosis, and awarded the plaintiff maintenance of $10,760 per month commencing June 1, 2016, and terminating the first of the month after the plaintiff turns 67 years old. The Appellate Division affirmed. It was undisputed that the plaintiff was diagnosed with multiple sclerosis, which is a chronic and incurable autoimmune disease, as well as another autoimmune disorder, Hassimoto’s thyroiditis. At trial, the plaintiff’s evidence demonstrated that she experienced numerous symptoms as a result of multiple sclerosis and the treatment that she received for this disease, and that these symptoms interfered with her ability to work. The fact that the plaintiff wrote and self-published a book during the marriage, which took her 10 years to complete and for which she earned no income, did not warrant a different result. However, the Supreme Court should have directed that, in the event that either party dies or the plaintiff remarries during the period when the defendant is obligated to pay maintenance, that obligation terminates (see Domestic Relations Law § 236[B][1][a]).


Custody order reversed where attorney for the child failed to advise the Family Court of, much less advocate for, the position of the then 10–year–old child

            In Matter of David v LoPresti, --- N.Y.S.3d ----, 2019 WL 4849301, 2019 N.Y. Slip Op. 07066 (2d Dept.,2019) the mother and the father were divorced in 2015 and had one child, born in 2008. Pursuant to a stipulation the parties agreed to joint legal custody of the child with the mother having primary physical custody. In 2018, the mother moved to modify the stipulation so as to allow her to temporarily relocate with the child from Queens, New York, to New Orleans, Louisiana, for a period of two years, while she completed a fellowship program at Tulane University School of Medicine. Since the mother’s fellowship commenced prior to the hearing on the petition, she was constrained to move to Louisiana without the child, and the child stayed with the father in New York. Following the hearing, the Family Court, in effect, denied the mother’s petition and awarded physical custody of the child to the father and parental access to the mother. The Appellate Division reversed and remitted for a new hearing. It found that the record was insufficient to allow it to make a fully informed determination as to whether relocation was in the child’s best interests. Throughout the course of the proceedings on the petition, the attorney for the child failed to advise the Family Court of, much less advocate for, the position of the then 10–year–old child. The Rules of the Chief Judge (22 NYCRR 7.2[d]) require that, except in certain proceedings not relevant here, the attorney for the child “zealously advocate the child’s position. The Family [Court] Act identifies, as one of the primary obligations of the attorney for the child, helping the child articulate his or her position to the court” (Matter of Mark T. v. Joyanna U., 64 A.D.3d 1092, 1093, 882 N.Y.S.2d 773; see Family Ct Act § 241). Moreover, despite the fact that it was not made aware of the child’s position through the attorney for the child, the court did not meet in camera with the child to aid it in determining her best interests. Under the circumstances of this case, including that the mother was the child’s primary caregiver since birth and that the relocation was temporary, the denial of the petition absent any indication of the child’s preferences was not supported by a sound and substantial basis in the record, and the record was insufficient to enable the Court to make its own determination of the petition. Additionally, the mother was improperly prevented by the Court Attorney Referee from presenting evidence on her petition relevant to, inter alia, the mother’s reasons for seeking the move and the impact the move would have on the child economically and educationally.

            The Appellate Division also found that the mother’s petition was for permission to relocate temporarily, and the father withdrew his cross petition for physical custody. Thus, there was no request pending before the court for a permanent change of custody, nor was there a showing that such a permanent change of custody would be in the child’s best interests.

Appellate Divison rejects mother’s argument that the Family Court should not have limited her ability to cancel a scheduled visit to instances of “substantial medical reason involving the child.”

            In Matter of Liriano v Hotaki, --- N.Y.S.3d ----, 2019 WL 4849282, 2019 N.Y. Slip Op. 07071  (2d Dept.,2019) the Family Court denied in part the mothers petition to modify the custody order so as to require that the father’s parental access with the child be supervised and by conditioning the father’s right to parental access on his participation in therapy. The court also directed that the mother was “not to cancel the visit except for substantial medical reason involving the child.” The Appellate Division affirmed. It, among other things, rejected the mother’s argument that the Family Court should not have limited her ability to cancel a scheduled visit to instances of “substantial medical reason involving the child.” The Appellate Division observed that this is a fairly standard limitation (see Parenting Plan, ¶ 2.12, available at www.nycourts.gov/forms/matrimonial/ParentingPlanForm.pdf [last accessed September 12, 2019]). It held that  the court’s determination that it was in the child’s best interests to limit the mother’s ability to cancel scheduled visits to instances of “substantial medical reason involving the child” was supported by a sound and substantial basis in the record (cf. Matter of Michael R. v. Aliesha H., 155 A.D.3d 1042, 1044, 66 N.Y.S.3d 39).


Appellate Divison holds it is an improvident exercise of discretion to direct that school, religious, or extracurricular activities of the children are always to take precedence over father’s parental access

            In Matter of Cuccia-Terranova v. Terranova, 174 A.D.3d 528, 107 N.Y.S.3d 28, 2019 N.Y. Slip Op. 05401 (2d Dept., 2019) the Appellate Division held that under the circumstances of this case, it was an improvident exercise of discretion to direct that the school, religious, or extracurricular activities of the children are always to take precedence over the father’s parental access, particularly since the mother was  permitted to unilaterally determine the children’s non-school activities without prior consultation with the father, and she had asserted that the children were so busy that establishing a fixed schedule would be difficult. In this context, the provision giving primacy to other activities could result in an undue curtailment of the father’s parental access. Similarly, it was an improvident exercise of discretion to preclude make-up parental access in the event that the father, or the children, were unable to participate in scheduled parental access for good cause.

Tuesday, October 08, 2019

Recent Decisions and Legislation October 1, 2019


Recent Legislation


Laws of 2019, Ch 335, enacted and effective October 3, 2019 amended Family Court Act §§828 and 842, Family Court Act § 412(10), Domestic Relations Law § 236 [B][5-a] [b][5] and Domestic Relations Law § 236[B](6][b][4]

               Family Court Act §§828 and 842  were amended to authorize Family Court, when issuing a temporary order of protection to issue  an  order directing  the parties to appear within seven business days of the issuance of the order in the family court, in the same action, for consideration of an order for temporary spousal support in accordance with article four of the family court act. If the court directs the parties to appear, it must direct the parties to appear with information with respect to income and assets. However, a temporary order for spousal support may be issued pursuant to article four of the family court act on the return date notwithstanding the respondent’s default upon notice, and notwithstanding that information with respect to income and assets of the petitioner or respondent may be unavailable.

               The additions to Family Court Act §828 (5) and 842 are identical and read as follows:

                Notwithstanding the provisions of section eight hundred seventeen
   of this article, where a temporary order of spousal support has not
   already been issued, the court may, in addition to the issuance of a
   temporary order of protection pursuant to this section, issue an order
   directing the parties to appear within seven business days of the issue-
   acne of the order in the family court, in the same action, for consider-
   ation of an order for temporary spousal support in accordance with arti-
   cle four of this act. If the court directs the parties to so appear, the
   court shall direct the parties to appear with information with respect
   to income and assets, but a temporary order for spousal support may be
   issued pursuant to article four of this act on the return date notwith-
   standing the respondent’s default upon notice and notwithstanding that
   information with respect to income and assets of the petitioner or
   respondent may be unavailable.

               Family Court Act § 412(10), Domestic Relations Law § 236 [B][5-a][b][5] and Domestic Relations Law § 236[B](6][b][4] were amended to fix the date of the biennial adjustment of the spousal maintenance "cap" at March 1st, rather than January 31st, commencing in 2020.

               According to the Assembly sponsors memorandum in support to the legislation the Family Protection and Domestic Violence Intervention Act of 1994 (L. 1994, c. 222) authorized Family Courts, when issuing orders of protection in family offense cases, to issue temporary orders of child support. However, it did not authorize the court to award support to married petitioners in family offense proceedings who do not have minor, dependent children. Child support, but not spousal support, may be ordered in conjunction with the issuance of an order of protection. The amendment permits issuance of a temporary order of spousal support on the return date of the family offense petition "notwithstanding the respondent's default upon notice and notwithstanding that information with respect to income and assets of the petitioner or respondent may be unavailable." Upon making an order for temporary spousal support, the court must set the spousal support matter down for determination of the final order.


               The amendment of the date of calculation of the spousal maintenance
"cap" in the Family Court Act and Domestic Relations Law, conforms the adjustment date to that already in effect for the child support income "cap," self-support reserve and poverty level guidelines amount.


Appellate Divison, Second Department

Court has no discretion to deny trial application for money judgment where it is established that arrears were due and unpaid

In Uttamchandani v Uttamchandani, --- N.Y.S.3d ----, 2019 WL 4457752, 2019 N.Y. Slip Op. 06645 (2d Dept.,2019) the Appellate Division observed that a  party to a matrimonial action may make an application for a judgment directing the payment of arrears at any time prior to or subsequent to the entry of a judgment of divorce (see Domestic Relations Law § 244; McCoy v. McCoy, 117 A.D.3d 806, 808, 985 N.Y.S.2d 629). The court did not have the discretion to deny the plaintiff’s application for leave to enter a money judgment since she established that arrears were due and unpaid. Where there are triable issues of fact as to the amount of arrears, an evidentiary hearing should be held.

Wednesday, September 25, 2019

Recent Decisions and Legislation September 16, 2019


September 16, 2019

Recent Legislation


Laws of 2019, Ch 258, effective September 16, 2019

           
Laws of 2019, Ch 258, enacted September 16, 2019 amended Domestic Relations Law §110 by adding a new closing paragraph which provides: A petition to adopt, where the petitioner's parentage is legally-recognized under New York State law, shall not be denied solely on the basis that the petitioner's parentage is already legally-recognized.


According to the Assembly Memorandum in support of the Legislation, under existing New York law, judges already have the ability to grant an adoption of a child by a petitioner whose parentage is already legally-recognized. These adoptions are routinely granted and can be very important for many same-sex couples and their children. While the spouse of a woman who gives birth to a child is presumed to be the child's parent, same-sex couples find themselves in a legally precarious position when traveling in places that do not fully respect the rights of non-biological parents even when they are married. A New York adoption would be honored in another jurisdiction, and afforded full faith and credit. This gives children the security that both their parents will be legally recognized wherever family members may be.


Laws of 2019, Ch 313 effective September 13, 2019

            Laws of 2019, Ch 313 enacted September 13, 2019 amended the Domestic Relations Law (DRL) and the Family Court Act (FCA) to specify that the incarceration of the child support obligor is not to be treated as voluntary unemployment in either the establishment or modification of a support order unless such incarceration is the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment. The amendments provide that incarceration shall not be a bar to establish a substantial change in circumstances, barring these exceptions. (amendments are underlined below)

            Domestic Relations Law § 240 (1-b) (b) (5) (v) was amended to provide that incarceration shall not be considered voluntary unemployment in establishing child support obligations, except in certain situations. The amendment reads as follows:
  
     (v)  an amount imputed as income based upon the parent's former
   resources or income, if the court determines that a parent has reduced
   resources or income in order to reduce or avoid the parent's obligation
   for child support; provided that incarceration shall not be considered
   voluntary unemployment, unless such incarceration is the result of non-
   payment of a child support order, or an offense against the custodial
   parent or child who is the subject of the order or judgment;  

            Domestic Relations Law § 236 [B] (9) (b) (2) (i) was amended to provide that incarceration shall not be considered voluntary unemployment in modifying child support obligations and shall not be a bar to establish a substantial change in circumstances, except in certain situations.
 
               Domestic Relations Law § 236 [B] (9) (b) (2) (i) was amended to read as follows:
 
               (i) The court may modify an order of child support, including an order
   incorporating without merging an agreement or stipulation of the
   parties, upon a showing of a substantial change in circumstances.
   Incarceration shall not be considered voluntary unemployment and shall
   not be a bar to finding a substantial change in circumstances provided
   such incarceration is not the result of non-payment of a child support
   order, or an offense against the custodial parent or child who is the
   subject of the order or judgment.
  

            Family Court Act § 413 subd. 1 (b) (5) (v) was amended to provide that incarceration shall not be considered voluntary unemployment in establishing child support obligations, except in certain situations.

            Family Court Act § 413 subd. 1 (b) (5) (v) was amended to read as follows:

     (v) an amount imputed as income based upon the parent’s former
   resources or income, if the court determines that a parent has reduced
   resources or income in order to reduce or avoid the parent’s obligation
   for child support; provided that incarceration shall not be considered
   voluntary unemployment, unless such incarceration is the result of non-
   payment of a child support order, or an offense against the custodial
   parent or child who is the subject of the order or judgment;

            Family Court Act § 451 subd. 3 (a) was amended to provide that incarceration shall not be considered voluntary unemployment in modifying child support obligations and shall not be a bar to establish a substantial change in circumstances, except in certain situations.

               Family Court Act § 451 subd. 3 (a) was amended to read as follows:
 
     (a) The court may modify an order of child support, including an order
   incorporating without merging an agreement or stipulation of the
   parties, upon a showing of a substantial change in circumstances.
   Incarceration shall not be considered voluntary unemployment and shall
   not be a bar to finding a substantial change in circumstances provided
   such incarceration is not the result of non-payment of a child support
   order, or an offense against the custodial parent or child who is the
   subject of the order or judgment. 


            Social Services Law § 111-g, subd. 3 (a) was amended to comply with the mandatory provision of the federal Bipartisan Budget Act of 2018 to increase from $25 to $35 the annual service fee for providing child support services in the case of an individual who has never received Title IV-A assistance. In addition, the Social Services Law was amended to comply with the federal requirement to increase from $500 to $550 the amount of support that the State must collect and disburse to the family prior to imposing the fee for each federal fiscal year.
 
               Social Services Law § 111-g, subd. 3 (a) was amended to read as follows:
 
                (a)  A person who is receiving child support services pursuant to this
   section who has never received assistance pursuant to title IV-A of the
   federal social security act shall be subject to an annual service fee of
   thirty-five dollars for each child support case if at least five hundred fifty dollars of                  support has been collected in the    federal fiscal year. Where a custodial parent has children with different noncustodial parents, the order payable by each noncustodial parent    shall be a separate child support case for the purpose of imposing an
   annual service fee.  The fee shall be deducted from child support
   payments received on behalf of the individual receiving services. 

            According to the Assembly Memorandum in support of the Legislation, the bill implements federal requirements and provides that incarceration shall not be a bar to establish a substantial change in circumstance, unless such incarceration is the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment. Because incarceration cannot be treated as voluntary unemployment (except in the enumerated circumstances), support awards for incarcerated individuals will not be imputed from pre-incarceration earnings. Instead, modification would be based on the incarcerated individual's current financial circumstances. If there is a basis for a modification, the child support guidelines would be applied to the incarcerated individual's current income and assets to determine his or her new support obligation. While incarceration itself would not be grounds for a modification, any significant reduction in the noncustodial parent's ability to pay support could be the basis of a downward modification (except in the enumerated circumstances).


Appellate Division, First Department


Support Magistrate's failure to make a recommendation as to incarceration upon finding of willfulness constitutes recommendation against incarceration. Summary of alleged arrears, admitted into evidence without testimony or supporting documentation is hearsay, and not competent evidence.

          In Matter of Michael R v Amanda R, ___AD3d___, 2019 WL 4264401 (1st Dept., 2019) the first and only day of trial on the father’s enforcement petition took place on February 2, 2016 before the Support Magistrate. On that date, the father offered into evidence, without objection, his typewritten summary of the amount that he claimed the mother then owed for basic child support and for her share of the children’s add-on expenses. The father’s summary alleged that the mother owed total arrears of $63,003.53, from October 15, 2012 through November 1, 2015. However, he did not testify or present any documentation or other evidence to support the numbers in his chart. The mother testified as to her income, employment, and payment of child support and add-on expenses, and put into evidence, without objection, the parties’ child support stipulation her tax returns for 2012 through 2014, a letter of employment, documentation of unemployment benefits she had received, and her financial disclosure affidavit. At the end of the day, the court adjourned the proceeding during the mother’s testimony. The court never took further testimony. Subsequently, the court granted the father’s motion pursuant to CPLR 3126 for an order of preclusion against” the mother for failure to provide post trial disclosure.

            On or about December 7, 2017, the Support Magistrate issued findings of fact, an order of disposition, and an “Order Entry Money Judgment.” The findings of fact stated that the mother’s testimony and evidence at trial are stricken, based on the preclusion order. They state that neither party “submitted proof of income, expenses, or support of others.” They also state that the mother owed the father arrears totaling $123,720.98, apparently based solely on the father’s “alleged statement of arrears” submitted to the Support Magistrate on a date when no testimony was taken, and no exhibits received in evidence. The order of disposition and the “Order Entry Money Judgment” directed entry of a money judgment against the mother in the amount of $123,720.98. In addition, the “Order Entry Money Judgment” directed the mother to pay the father’s attorney $4,680 as counsel fees. The findings and the two orders each contained a determination that the mother had willfully violated an order of support dated April 25, 2014, although that order was not in evidence. On February 8, 2018, the father and counsel for each party appeared before the Family Court Judge, who issued a warrant directing that the mother be brought before the court, and stated, “And at that time when [the mother] is returned before this Court on that warrant, this Court will then determine ... how this Court should proceed.”

            After Family Court denied the mother’s objections to the Support Magistrate’s findings of fact and orders entered on December 7, 2017 the Mother appealed and the Appellate Division reversed. It held that a party may seek additional disclosure after trial commences only by permission of the trial court on notice (CPLR 3102[d]). Here, the father never sought permission for post-trial discovery. Nor did the father’s motion papers demonstrate any reason why he should have been permitted to pursue additional discovery more than a year after trial commenced. It held that in view of this, and the fact that the mother faced contempt penalties if she were unable to present evidence about her ability to pay, the Support Magistrate improvidently exercised his discretion in “precluding” the mother from presenting evidence and testimony that he had already admitted into evidence at trial more than a year previously.

            The Court noted that the Family Court Rules require that a support magistrate's fact findings that include a finding of willfulness “shall include ... a recommendation regarding the sanctions that should be imposed, including a recommendation whether the sanction of incarceration is recommended” (22 NYCRR 205.43[g]). A support magistrate's written findings of facts must be issued within five days of the conclusion of a willfulness hearing (22 NYCRR 205.43[f]). It had previously held that a “Support Magistrate's failure to make a recommendation as to incarceration upon [a] finding of willfulness essentially constituted a recommendation against incarceration” (Matter of Carmen R. v. Luis I., 160 A.D.3d 460, 462, 74 N.Y.S.3d 37 [1st Dept. 2018]).
Here, neither the Support Magistrate's findings of facts issued on or about December 7, 2017 nor any other document in the record contained a recommendation as to incarceration or a cure amount. It was not clear why the Family Court Judge before whom the parties appeared on February 8, 2018 stated on the record that she “believe[d]” that he had made such a recommendation. In addition, the attorneys for both parties each confirmed on the record that they were unaware that the Support Magistrate had made such a recommendation. Therefore, it was clear that no recommendation had been “transmitted to the parties” with the findings of facts. Moreover, there was no order in the record in which a Family Court Judge confirmed any recommendation by the Support Magistrate as to incarceration. Accordingly, Family Court erred in making a finding in its March 20, 2018 order that the Support Magistrate had made such a recommendation.


            The Appellate Division held that Family Court erred in denying the mothers objections on the basis that the mother’s counsel failed to file a proper affidavit of service. Any error in the affidavit of service was inadvertent and did not prejudice the father. Family Court Act § 439(e) provides that a party filing objections must serve those objections upon the opposing party, and that proof of service must be filed with the court at the time that the party’s objections are filed. Here, the father did not argue either that the mother failed to serve the objections on him or that he suffered any prejudice. Accordingly, despite the mother’s attorney’s sloppy drafting, the Family Court should have addressed the merits of the mother’s objections (Matter of Worner v. Gavin, 112 AD3d 956, 957 [2d Dept 2013]; Matter of Nash v. Yablon–Nash, 106 AD3d 740, 741 [2d Dept 2013]; Matter of Perez v. Villamil, 19 AD3d 501 [2d Dept 2005] ).

        The Appellate Division further held that because the Support Magistrate had struck all of the mother’s testimony and evidence, including a copy of the parties’ child support agreement, the only evidence supporting the father’s claims was his summary of alleged arrears, admitted into evidence without testimony or supporting documentation on the single day of trial. The summary itself was hearsay, and was not competent evidence of the mother’s obligation to pay child support or that she failed to pay any sums she was obligated to pay. Nor was it clear and convincing evidence of respondent’s willful failure to pay such sums. Moreover, the summary apparently relied on by the Support Magistrate, which the father provided to the court on a later date when no testimony was taken or evidence entered, was not evidence at all.

            The Appellate Division reversed on the law and vacated the order which granted  a preclusion order against respondent mother; reversed the order which, upon the finding that the mother willfully violated a child support order, directed entry of a money judgment and directed the mother to pay petitioner father's counsel fees; reversed the order which denied the mother's objections, on the law, without costs, and remanded the matter remanded for further proceedings consistent with its  order.     Finally, the Appellate Division held that no appeal lies from a warrant of arrest which is a non appealable paper. (see Holubar v. Holubar, 2011 N.Y. Slip Op 66140[U] [2d Dept 2011]; CPLR 5701) and dismissed the appeal from that order.