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Tuesday, December 22, 2020

Recent Decisions and Legislation December 16, 2020

 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).

 

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.

 

Laws of 2020

 Laws of 2020, Ch 261, effective November 11, 2020 amended domestic relations law §  240 (3)(a)(8) and (9), domestic relations law §  252 (1) (h) and (i), family court act § 352.3 (1), family court act §  446 (i) and (j), family court act § 551 (j) and (k), family court act §  656 (j) and (k), family court act §  759 (g), (h) and (i); family court act §  842 (j) and (k). family court act §  1056 (1) (h) and (i), criminal procedure law §  530.12 (1)(a) (7), criminal procedure law § 530.12, (5) (c) and (e), and a new paragraph (f) was added, criminal procedure law § 530.13 (1)(c) and  criminal procedure law §  530.13 (4)(c) and a new paragraph (d) was added,  to provide that an order of protection can be issued that requires that the respondent refrain from controlling any connected devices affecting the home, vehicle or property of the person protected by the order.  "Connected  device", means any device, or other physical object that is capable of connecting to the internet, directly  or  indirectly,  and  that  is  assigned  an internet protocol address or bluetooth address.




Laws of 2020, Chapter 299  amended Family Court Act §§ 305.2 and 344.2 effective November 1, 2021,  to require video recording of the entirety of interrogations in all juvenile cases, including the provision of Miranda warnings and the waiver, if any, of rights by the juveniles. It requires that recording procedures be consistent with regulations to be promulgated by the Division of Criminal Justice Services. It applies to interrogations that take place in law enforcement facilities, which, pursuant to Family Court Act § 305.2(4) and section 205.20 of the Uniform Rules of the Family Court, must be in rooms that have been inspected and approved by the Chief Administrator of the Courts for the questioning of youth. All persons in the recording must be identifiable and the speech must be intelligible. As is applicable to other statements by juveniles, the recording would be subject to discovery pursuant to Family Court Act § 331.2. Further, like other factors in juvenile delinquency Huntley hearings, including the presence or absence of parents, location of questioning and the validity of any waiver of rights, the fact and quality of the recording would be among factors comprising the totality of circumstances affecting admissibility of accused juveniles' statements. Failure to record would not, by itself, be a ground for granting a suppression motion. (See NY Legis Memo 299)

 

Where presumption of neglect triggered under Family Court Act § 1046(a)(iii), ACS  not required to establish children suffered actual harm or were at imminent risk of harm

            In Matter of Jesse W, --- N.Y.S.3d ----, 2020 WL 7050359, 2020 N.Y. Slip Op. 07203 (2d Dept.,2020) the Appellate Division observed that pursuant to Family Court Act § 1046(a)(iii), “proof that a person repeatedly misuses a drug or drugs or alcoholic beverages, to the extent that it has or would ordinarily have the effect of producing in the user thereof a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality, shall be prima facie evidence that a child of ... such person is a neglected child except that such drug or alcoholic beverage misuse shall not be prima facie evidence of neglect when such person is voluntarily and regularly participating in a recognized rehabilitative program”. In cases where this presumption of neglect is triggered, the petitioner is not required to establish that the child suffered actual harm or was at imminent risk of harm. It concluded that the evidence supported the Family Court’s determination that ACS met its burden of proving that the father neglected the subject children as a result of his misuse of drugs. The evidence demonstrated that the father regularly misused PCP and marijuana, that his misuse of drugs produced in him “a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality,” and that he was not participating in a drug rehabilitation program. Contrary to the father’s argument, because this presumption of neglect was triggered under Family Court Act § 1046(a)(iii), ACS was not required to establish that the children suffered actual harm or were at imminent risk of harm.

 

 

Grandparent visitation terminated where mother sought to relocate with Child to Germany 

            In Matter of Lisa AS v Ray AT, --- N.Y.S.3d ----, 2020 WL 7050365 (Mem), 2020 N.Y. Slip Op. 07202(2d Dept.,2020) the Appellate Division affirmed an order which terminated the supervised visitation with the child that had been awarded to the maternal grandmother. The petition alleged that, since the entry of the prior order of visitation, there had been a “change of circumstances” in that the mother had been offered a promotion that necessitated that she relocates with the child to Germany. The Appellate Division found that the mother demonstrated that the move would result in the child gaining beneficial opportunities, including not only those resulting from the mother’s increased salary, but also those attendant to living in a foreign country, including learning the language of that country. The child also expressed interest in the opportunities afforded by the relocation with the mother to the foreign country. In addition, the mother testified that her relationship with the maternal grandmother had become “increasingly toxic” and that the maternal grandmother’s recurring unfounded allegations against the mother to child protective services had a negative impact on both the mother and the child.

 

Estranged grandmother committed Family Offense by repeatedly approaching  petitioner’s children to introduce herself and surreptitiously delivering gifts and leaving notes despite petitioner’s instruction to not contact her or her children.

             In Matter of Schade v Kupferman, --- N.Y.S.3d ----, 2020 WL 6930678 (Mem), 2020 N.Y. Slip Op. 07069 (2d  Dept.,2020)  petitioner commenced a family offense proceeding against her estranged mother. She alleged that she had clearly and unequivocally prohibited her from having any contact with her or her children. The petitioner alleged that the appellant had been committing acts constituting, inter alia, the crime of harassment in the second degree by repeatedly contacting and attempting to contact the petitioner and the petitioner’s children. The Appellate Division affirmed an order of the Family Court which found that the appellant had engaged in conduct constituting a family offense and issued an order of protection. It held that as relevant here, a person commits the family offense of harassment in the second degree when, with intent to harass, annoy, or alarm another person, he or she “engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose” (Penal Law § 240.26[3]). The appellant committed the family offense of harassment in the second degree (Penal Law § 240.26[3]) by, among other things, repeatedly approaching the petitioner’s young children to introduce herself as their grandmother, and surreptitiously delivering gifts and leaving notes for the children despite the petitioner’s clear instruction to not contact her or her children.

 

 

 

Where parties fail to satisfy unambiguous agreement mediation condition precedent before filing new custody petition failure to satisfy condition precedent will result in dismissal of  petition

            In Matter of Jessica EE v Joshua EE, 2020 WL 6929323 (3d Dept.,2020) the parties agreed to an order of custody that provided joint legal and physical custody of the children, and further provided, as pertinent here, “that[,] should a conflict arise between the parties regarding decision making and/or compliance enforcement, modification or violation of any of the terms of this [o]rder[,] the parties shall make a good faith effort to engage in mediation prior to returning to court or filing any petitions.”  In December 2018, the mother filed a modification petition seeking primary residential and sole legal custody of the children. The father moved to dismiss the petition, arguing, inter alia,  that the mother failed to satisfy the condition precedent to mediate in good faith prior to filing the petition. Family Court granted the motion. The Appellate Division held among other things that where parties to an agreement are required to satisfy a condition precedent before filing a new petition, and the agreement is unambiguous, failure to satisfy that condition precedent will result in dismissal of the petition. Here, the agreement was unambiguous. It rejected the mothers argument that she made a good faith effort to engage in mediation with the father prior to filing the petition.

 

Once father brought  support payments current order of commitment should not have been issued          

            In Matter of Dupis v Costello, --- N.Y.S.3d ----, 2020 WL 6929264 (Mem), 2020 N.Y. Slip Op. 06992 (3d Dept.,2020) the Support Magistrate determined that the father had willfully violated the support order, granted the mother a money judgment for arrears, and recommended that the father be sentenced to a jail term of 120 days, the sentence to be suspended so long as he complied with the support order. By the time the father appeared before Family Court for a confirmation hearing (see Family Ct Act § 439[e] ), he had paid all arrears and had established a balance in his favor. Family Court issued an order of commitment imposing a 120–day jail sentence and ordered that the sentence be suspended so long as the father met his support obligations for a period of three years. The Appellate Division reversed. It held that a jail sentence imposed for a party’s civil contempt in failing to comply with an order, such as the father’s willful failure to pay support as ordered, is not punitive and only serves the remedial purpose of compelling compliance” with the order. There was no remedial purpose to be served by continued confinement or the threat thereof once the father had brought his support payments current and the order of commitment should not have been issued because the father had already complied completely with the underlying support order. Family Court erred in suspending the sentence and was obliged to discharge it without condition.

 

 

           

Family Court lacked subject jurisdiction to issue the order directing a forensic evaluation where no petition pending in court between these parties

             In Matter of James R. v Jennifer S, --- N.Y.S.3d ----, 2020 WL 6929190, 2020 N.Y. Slip Op. 06997(3d Dept.,2020) the parties settled custody and violation petitions then pending in Family Court by stipulating to engage in family counseling and to a protocol for the selection of a therapist. The transcript of the stipulation of settlement was incorporated by reference into a consent order entered in March 2019. Thereafter, the parties failed to agree on the selection of a therapist, prompting the father to request that the court appoint as a therapist a licensed psychiatrist versed in parental alienation. After converting the father’s request to an application for a court-ordered forensic evaluation, the court ordered a forensic evaluation over the mother’s objection. The Appellate Division reversed. It held that Family Court lacked subject jurisdiction to issue the order directing a forensic evaluation because the March 2019 order on consent resolved all underlying petitions and, therefore, at the time that Family Court issued the order, no petition was pending in court between these parties. The filing of a petition to commence a proceeding is mandatory and a precondition to the court obtaining jurisdiction (Family Ct. Act § 154–a). Family Court is authorized to order a forensic evaluation of any persons within its jurisdiction “[a]fter the filing of a petition under this act over which [it] appears to have jurisdiction ... when such an examination will serve the purposes of this act” (Family Ct. Act § 251[a]). Thus, the Family Ct Act contemplates that, before Family Court can order a forensic evaluation, a petition must have first been file

 

Court of Appeals holds that Domestic Relations Law ' 111(1)(a), which generally requires the consent of an adoptive child who is over 14 years old but gives the court discretion to dispense with that consent permits a court to approve an adoption even absent the consent of an adult adoptee.

 

In Matter of Marian T., ‑‑‑ N.E.3d ‑‑‑‑, 2020 WL 6877600, 2020 N.Y. Slip Op. 06932 (2020) the issue in this adoption proceeding was  whether the adoption was categorically precluded because the adoptee, an adult woman with a significant developmental disability, did not have the capacity to give her consent. Marian T., a 66ByearBold woman, resided with petitioners. for approximately 15 years. Marian had a profound intellectual disability that resulted in significant developmental delays and limited verbal ability. Petitioners operated a licensed Family Care home under the supervision of the New York State Office for People with Developmental Disabilities, which oversees the placement of individuals with severe intellectual disabilities in private family homes where they may be properly cared for. Seeking to provide permanency for Marian, who had no living relatives and had been in the State=s custody since she was a child, petitioners commenced adoption proceeding in August 2015. Mental Hygiene Legal Services (MHLS),appointed to represent Marian in the proceedings, objected to the adoption on the ground that Marian=s consent was required under DRL ' 111(1)(a), arguing that Marian lacked the capacity to consent and that the statute permits a court to dispense with adoptee consent only where the adoptee is a child between the ages of 14 and 17. Petitioners countered that, because the phrase adoptive child in the statute includes adult adoptees and Marian was over the age of 14, the court had the discretion to dispense with the consent requirement. That questioned turned on the proper interpretation of Domestic Relations Law (DRL) ' 111(1)(a), which generally requires the consent of an adoptive child who is over 14 years old but gives the court discretion to dispense with that consent. The Court of Appeals held that, in appropriate circumstances, the statute permits a court to approve an adoption even absent the consent of an adult adoptee. Because that discretion was not abused here and there was  record support for the affirmed best interests finding, it affirmed the order which approved the adoption.

 

Contingency fee agreement held to be enforceable in matrimonial action where underlying dispute related only to plaintiff=s alleged breach of the confidentiality provision of a prior child support agreement

In Costa v Arandia & Arandia, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6877305 (Mem), 2020 N.Y. Slip Op. 06945(1st Dept.,2020) the Appellate Division held that the motion court properly found the contingency fee agreement to be enforceable. Duly agreed contingent fee arrangements are generally valid. Although there is an exception to this rule where the fee is contingent upon the securing of a divorce ... or is in any way determined by reference to the amount of maintenance, support, equitable distribution, or property settlement (Rules of Professional Conduct [22 NYCRR] ' 1200.0 rule 1.5[d][5][I]), this exception did  not apply here, as the underlying dispute related only to plaintiff=s alleged breach of the confidentiality provision of a prior child support agreement.

 

The definition of unconscionable contract reveals two major elements. The procedural element of unconscionability concerns the contract formation process and the alleged lack of meaningful choice; the substantive element looks to the content of the contract, per se.

In Eicholz v Eicholz, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6602904, 2020 N.Y. Slip Op. 06500 (2d Dept.,2020) the plaintiff commenced an action to vacate the parties= separation agreement and moved, among other things, for summary judgment on the ground of unconscionability. The plaintiff argued that he did not understand the terms of the separation agreement when he executed the agreement because he was under the influence of psychotropic medication and the effects of electro‑convulsive therapy, and that he signed the agreement without legal representation and because the defendant had threatened to force him out of the marital residence. Supreme Court granted plaintiff=s motion. The Appellate Division reversed. It observed that in general, an unconscionable contract has been defined as one which is so grossly unreasonable as to be unenforceable because of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party. This definition reveals two major elements which have been labeled by commentators, procedural and substantive unconscionability. The procedural element of unconscionability concerns the contract formation process and the alleged lack of meaningful choice; the substantive element looks to the content of the contract, per se. A reviewing court examining a challenge to a separation agreement will view the agreement in its entirety and under the totality of the circumstances.  The Appellate Division found that while  the complaint adequately pleaded a cause of action, plaintiff failed on the motion to demonstrate as a matter of law through medical records or testimony from a doctor that his ability to understand the terms of the separation agreement when he executed the agreement was impaired by medication or prior treatment that he received. In addition, he failed to demonstrate, prima facie, that the manner in which the defendant presented the separation agreement to the plaintiff, along with the plaintiff=s lack of legal representation and the lack of financial disclosure between the parties, served to deprive the plaintiff of a meaningful choice in entering into the separation agreement. Further, although the defendant was awarded a majority of the marital assets under the agreement, the record did not contain sufficient evidence demonstrating the value of most of these assets. Although the plaintiff, who did not have an income when the agreement was executed, waived his right in the separation agreement to maintenance from the defendant, who made a significant salary, this waiver, by itself, was insufficient to demonstrate that the agreement as a whole was unconscionable. A hearing was warranted to determine the totality of the circumstances, including the extent of the parties= assets and the circumstances surrounding the execution of the separation agreement, and as such, summary judgment should have been denied.

 

Criminal conviction may be given collateral estoppel effect in a Family Court proceeding where (1) the identical issue has been resolved, and (2) the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct.

 In Matter of Brittani A, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6601901, 2020 N.Y. Slip Op. 06523 (2d Dept.,2020) an abuse proceeding, the Appellate Division held that a criminal conviction may be given collateral estoppel effect in a Family Court proceeding where (1) the identical issue has been resolved, and (2) the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct. The mother=s convictions of attempted murder in the second degree, attempted assault in the first degree, attempted assault in the second degree, and endangering the welfare of a child were based on the same acts alleged by DSS to constitute abuse in these proceedings. Therefore, DSS established, prima facie, that the child was an abused child pursuant to Family Court Act ' 1012(e)(ii).

  

While recoupment of overpayments of child support is generally not permitted overpayments may be used to offset add‑on expenses, such as educational expenses and unreimbursed medical expenses.

In Matter of Collette v Collette, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6750542, 2020 N.Y. Slip Op. 06778 (2d Dept.,2020) in 2011 a money judgment, of $14,935.33 was entered against the father for child support arrears. In December 2018, the father filed a petition seeking a determination that the money judgment had been satisfied. In an order dated July 9, 2019, made after a hearing, a Support Magistrate, inter alia, vacated the arrears set forth in the money judgment as having already been satisfied, and directed the Support Collection Unit to stop enforcing the money judgment, determined that the father was entitled to a credit in the sum of $12,270.65 based on overpayments of child support, to be applied to the father=s future child support payments or, in the alternative, to his obligation to pay his pro rata share of unreimbursed medical expenses and/or educational expenses. The Appellate Division affirmed in part. It agreed with the Family Court=s determination but held that recoupment of child support payments is only appropriate under limited circumstances not applicable here (see Matter of McGovern v. McGovern, 148 A.D.3d at 902, 50 N.Y.S.3d 408; Rader v. Rader, 54 A.D.3d at 920, 865 N.Y.S.2d 235; People ex rel. Breitstein v. Aaronson, 3 A.D.3d 588, 589, 771 N.Y.S.2d 159). It held that the father was not entitled to a credit against his future child support obligation based on prior overpayments of child support. However, inasmuch as public policy does not forbid offsetting add‑on expenses against an overpayment of child support, it agreed with the Support Magistrate=s determination that the father may use the overpayments to offset his share of add‑on expenses, such as educational expenses and unreimbursed medical expenses.

 

Post Adoption contact agreement provision that it would become void on violation of provision upheld

             In Matter of Scott v Rhodes, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6750450 (Mem), 2020 N.Y. Slip Op. 06797(2d Dept.,2020) the post‑adoption contact provisions of the judicial surrender of the child  provided that the biological mother Amay not use any photographs or correspondence or information regarding the child or the adoptive parents in any way on any form of social media (e.g. Facebook, Twitter, etc.).@ It further provided that if the biological mother failed to keep any of the conditions in the agreement, Athen they all shall be null and void, effective at the time of the first failure.@ The Appellate Division held that the mothers violation of this provision rendered the post‑adoption contact agreement null and void (see Matter of Sapphire W. [Mary W.CDebbie R.], 120 A.D.3d 1584, 1585, 992 N.Y.S.2d 599; Matter of Mya V.P. [Amber R.CLaura P.], 79 A.D.3d 1794, 1795, 913 N.Y.S.2d 477).

  

Where parties have joint custody and there is a change of residence, child support not modified where judgment not modified.

 

In Listokin v Listokin, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6601948, 2020 N.Y. Slip Op. 06516 (2d Dept.,2020) the judgment dated August 4, 2016, incorporated the terms of a stipulation of settlement between them dated May 17, 2016. Pursuant to the judgment, the parties were to have joint legal custody of their two children, whose primary residence would be with the defendant, with the plaintiff to have parental access to the children in accordance with the terms of the stipulation of settlement. The plaintiff was obligated to pay substantial basic child support to the defendant and the parties agreed that issues regarding child support would be subject to the standard of review applicable to judgments rather than contracts. On November 21, 2016, the plaintiff moved to suspend his basic child support obligation and to direct the defendant to pay basic child support to him, claiming that the children had taken up residence with him. Supreme Court determined that because the children were residing with the plaintiff, he had met his burden of establishing an unanticipated and unreasonable change in circumstances to warrant a reduction or suspension of his basic child support obligation. In an order dated May 31, 2018, the court, inter alia, granted plaintiff=s motion which was to suspend his basic child support obligation only to the extent of reducing that obligation to $5,586 per month, and denied his motion to direct the defendant to make basic child support payments to him. The Appellate Division affirmed. It held that he did not establish a right to the suspension of his entire basic child support obligation based upon his assertion that he was the Ade facto@ custodial parent of the parties= children. Rather, the record supported the conclusion that while the children chose to reside with the plaintiff for a period of time, he did not petition the court to be the primary physical custodian of the children, defendant never acquiesced in the children=s relocation to the plaintiff=s residence, and the judgment of divorce remained unchanged in designating the defendant as the custodial parent for child support purposes. However, given the plaintiff=s evidence that the children were spending much more time in his household than originally contemplated in the stipulation of settlement, it agreed with the Supreme Court that a reduction in the plaintiff=s basic child support obligation by crediting him with the additional amounts he was expending for the children at his home constituted a provident exercise of discretion and took into account the practical realities and fluid nature of the parties= situation.

  

 Where Child Support retroactively modified to date of petition pursuant to Family Ct Act ' 439[e] father entitled to credit for  payments in excess of reduced obligation between date of filing of petition and order. 

 

In Merritt v Merritt, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6601867, 2020 N.Y. Slip Op. 06529 (2d Dept.,2020) on December 10, 2015, after having become unemployed in April 2015, the father filed a petition for a downward modification of his support obligation. By order entered September 23, 2016, after a hearing, the Support Magistrate, inter alia, denied the father=s petition. By order dated December 13, 2016, the Family Court denied the objections. On the father=s ensuing appeal the court reversed the December 13, 2016 order, determining that the father had met his burden of showing that there has been a substantial change in circumstances since the entry of the December 23, 2014 order. Upon remittitur, in an amended order dated April 15, 2019, the Support Magistrate, after a hearing, recalculated the father=s support obligation at a monthly sum of $1,784. The Support Magistrate determined that the father was entitled to a credit for his payments in excess of $1,784 for a period of 10 months, between the filing of the underlying petition on December 10, 2015, and the October 5, 2016, effective date of an order dated February 27, 2017, which granted the father=s later petition for a downward modification of his child support obligations. The father filed objections. Family Court denied the father=s objections. The Appellate Division affirmed. While the father was entitled to a credit for payments in excess of his reduced obligation as determined by the Family Court=s order (see Family Ct Act ' 439[e] ), construing the statute according to its plain meaning, the credit could only be awarded for excess payments made pursuant to the order which erroneously denied the father=s petition for a downward modification of his support obligation. Here, the father filed a new petition for a downward modification on October 5, 2016, and that relief was granted by the Family Court in an order dated February 27, 2017, retroactive to the date of filing. As such, as of October 5, 2016, the father=s child support obligation was no longer determined by the order entered September 23, 2016, and, upon reversal of that order, there was no basis to award him a credit for any further payments after October 5, 2016.

 

Motion to dismiss appeal for failure to settle transcript may not be considered where first raised in the Brief of a Party

 In Matter of Trataglia v Tartaglia,  ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6816607, 2020 N.Y. Slip Op. 06912(4th Dept.,2020) the Appellate Division, inter alia, declined to address the father=s request, set forth in his respondent=s brief, to dismiss the mother=s appeal. His request was based on the father=s allegations in his brief that the mother failed to settle the trial transcript pursuant to CPLR 5525 (c). It held that it  may not Aconsider a statement of fact appearing only in the brief of a party, even if such statement [is] not disputed@ (Ditmars‑31= St. Dev. Corp. v. Punia, 17 AD2d 357, 360 [2d Dept 1962]; see also People v. Alizadeh, 87 AD2d 418, 426 [1st Dept 1982]).

 

Failure to comply with the statutory requirement  of Family Ct Act ' 1017 [1] to contact aunt and inform her of right to seek to become a foster parent or obtain custody did not require reversal where aunt not prejudiced.

 

In Matter of Sandy L.S. v Onondaga County Department of Children and Family Services, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6816598, 2020 N.Y. Slip Op. 06910 (4th Dept.,2020)  the child=s great aunt (aunt)Cappealed from an order in a proceeding pursuant to Social Services Law ' 384‑b that, inter alia, terminated respondent mother=s parental rights, authorized Onondaga County Department of Children and Family Services (DCFS) to consent to the child=s adoption and ordered that the preadoptive foster parents could petition to adopt the child. In appeal No. 2, the aunt appealed from an order in a proceeding pursuant to Family Court Act articles 6 and 10 that dismissed her petition seeking custody of the child. The Appellate Division affirmed. It, inter alia, rejected the Aunts argument in appeal No. 2, that DCFS did not comply with the statutory requirement to contact her and inform her of her right to seek to become a foster parent or otherwise obtain custody of the child (see Family Ct Act ' 1017 [1]), and that she should therefore not be Apenalized@ for failing to seek such relief within 12 months of foster care placement (see Family Ct Act ' 1028‑a; Social Services Law ' 383 [3]). At all relevant times, the aunt knew that the child had been placed in foster care, and yet did not express any interest in seeking foster care placement or custody of the child until two years after the child was born. Shortly after the child was born, the aunt had declined to be considered a resource for the child because she was already overwhelmed with caring for the child=s siblings. Thus, even assuming, arguendo, that DCFS violated its statutory duty to inform the aunt of her right to seek to become a foster parent or obtain custody of the child, reversal was not required because the aunt was not prejudiced by the  error.

 

 

 

Support Magistrates findings cannot be confirmed without compliance by the Court with 22 NYCRR 205.43

 

In N. L., v. S.L., ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6600121, 2020 N.Y. Slip Op. 06453 (1st Dept.,2020) on or about March 20, 2012, the Family Court entered a child support order which required that the father pay $7,600 per month in child support. On December 5, 2012, the mother filed a violation petition, asserting that the father had willfully violated the child support order, because he made no support payments and no payments toward the arrears. A willfulness hearing commenced on or about December 23, 2013. The mother=s petition was not decided until nearly seven years later, on or about November 15, 2019.  At the conclusion of the violation proceeding, the Support Magistrate recommended that the father be incarcerated for six months, and directed that the father could purge his contempt and avoid incarceration by paying $84,000 by December 16, 2019. On December 16, 2019, the Support Magistrate referred the matter to a Family Court judge to confirm the recommendation of incarceration. Later the same day, however, the Family Court judge found that the father presented a certified check for the recommended purge amount to the Support Collection Unit and since the recommended purge amount had been paid, the matter was no longer properly before him. The parties filed objections to the Support Magistrate=s determinations. The mother objected, inter alia, to the recommended purge amount as insufficient, and objected to the Support Magistrate=s failure to set a payment schedule. Family Court denied both parties= objections. Family Court found that the judge who had determined that the father had paid the recommended purge amount had implicitly Aconfirmed@ the Support Magistrate=s recommendation of incarceration and the purge amount of $84,000.

The Appellate Division reversed. It found that the record failed to support the Family Court=s conclusion that the purge amount recommended by the Support Magistrate had been confirmed by the Family Court judge on December 16, 2019. The Rules of the Family Court provide that:A[i]n a case heard by a support magistrate, a Family Court judge may confirm the findings of the support magistrate by adopting his or her findings and recommendations in whole or in part. Alternatively, the Family Court judge may modify or refuse to confirm the findings and recommendations and may refer the matter back to the support magistrate for further proceedings. The court may, if necessary, conduct an evidentiary hearing@ (22 NYCRR 205.43[i] ). The record contained no written order confirming or rejecting the Support Magistrate=s recommendation. Moreover, the transcript of the proceedings made clear that the court did not adopt or modify the Support Magistrate=s findings and recommendations, in whole or in part, or make new findings.  It held that Family Court erred, on February 3, 2020, when it denied the mother=s objections on the basis that the court had confirmed the Support Magistrate=s recommendation of incarceration and a purge amount. The Family Court Rules further provide that, where a support magistrate makes a finding of willfulness, the findings of fact Ashall@ include Aa recommendation, as appropriate, regarding a specific dollar amount to be paid or a specific plan to repay the arrears@ (22 NYCRR 205.43[g][4] ). The mother=s request for a payment plan for the support arrears was properly before the court, as neither the Support Magistrate nor the Family Court judge who previously presided over the matter considered her request on the merits. The matter was remanded to a Family Court judge for proceedings consistent with this decision.

           

 

 

Appellate Divison points out in dicta that courts should not use any information from child , which has not been previously mentioned and is adverse to either parent, without in some way checking on its accuracy during the course of the open hearing

 

            In Edwin E.R. v Monique A.-O, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6494185, 2020 N.Y. Slip Op. 06347 (1st Dept.,2020) the Appellate Division reversed an order , which, inter alia, modified a prior order of custody to grant sole physical and legal custody of the child to petitioner father. It pointed out in dicta that even if the Family Court had properly found that there was a change of circumstances the record did not support the finding that the child lived primarily with the grandmother. The court based its finding solely on an in camera interview with the child, then eight years old, and the hearsay testimony of the father. It noted that the Court of Appeals has admonished that courts should Anot use any information, which has not been previously mentioned and is adverse to either parent, without in some way checking on its accuracy during the course of the open hearing,@ because Athere are grave risks involved in these private interviews.(Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 273[1969]). This admonition was well taken in this case, where the record provided a substantial basis for concluding that either or both parents spoke to the child about the proceeding before his interview with the court. Moreover, the father=s testimony could not serve either as an adequate check on the accuracy of any of the child=s statements or an adequate independent basis for the court’s finding, since it was pure hearsay. The father did not claim to have any independent knowledge of where the child spent his time, but testified that the grandmother had told him the child spent most nights at her home. Moreover, the mother directly contradicted the father=s testimony.

 

 

Supreme Courts’ subject matter jurisdiction over a matrimonial matter does not end upon the death of one party where agreement incorporated into judgment granted the court exclusive jurisdiction over the enforcement of its provisions, which are governed by New York law.

 


In Perry v McMahan, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6478507, 2020 N.Y. Slip Op. 06303(2d Dept.,2020) the parties 2009 stipulation which was incorporated but not merged into their judgment of divorce obligated the husband to pay the wife $30,000 per month in spousal maintenance, and stated that, in the event of the husband=s death prior to the termination of the wife=s maintenance, the husband=s estate would continue to make the maintenance payments. The agreement also stated that it was to be governed by the laws of the State of New York, and it was to be so‑ordered by the Supreme Court, which Ashall retain exclusive jurisdiction to enforce the provisions of this Agreement.@ The husband died on March 29, 2017, in Florida, and the plaintiff, who was the personal representative of the husband=s estate, filed probate administration pleadings in Florida. The maintenance payments to the wife ceased after the husband=s death, and the wife moved in Supreme Court, inter alia, to enforce the maintenance provisions of the agreement. In opposition, the plaintiff, among other things, argued that the Florida courts had subject matter jurisdiction and that the courts of New York no longer had subject matter jurisdiction. The Appellate Division rejected  plaintiff=s contentions that the court lacked subject matter jurisdiction over the wife=s claims against the husband=s estate for spousal maintenance and that the judgment was void for lack of subject matter jurisdiction. It  held that the wife was entitled to judgment for arrears of spousal maintenance due as of September 1, 2017. The  court’s subject matter jurisdiction over a matrimonial matter does not end upon the death of one party. Here, the agreement was binding on the husband=s estate to continue maintenance payments to the wife after the husband=s death, and granted the issuing court exclusive jurisdiction over the enforcement of its provisions, which are governed by New York law. The Florida statute relating to the enforcement of claims against an estate did not divest the Supreme Court of subject matter jurisdiction to resolve this dispute over a contract governed by New York law.

 

The fact that the parties employed a nanny for a period of time to assist with housekeeping and childcare responsibilities did not require a reduction in the defendant=s distributive share of husbands enhanced earning capacity

 

In Spinner v Spinner, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6478477, 2020 N.Y. Slip Op. 06307 (2d Dept.,2020) the parties were married in 1998, and had two children. During the course of the marriage, the plaintiff attended and graduated from medical school, completed a five‑year residency in internal medicine and neurology, and completed a clinical fellowship in neurophysiology. The plaintiff commenced this action in April 2012. In 2017 Supreme Court, inter alia, awarded the defendant a distributive share of the plaintiff=s enhanced earning capacity and directed the plaintiff to pay (1) child support of $1,769.23 per week, (2) 92% of the cost of the children=s extracurricular activities up to $15,000 per year, and (3) 92% of the children=s college expenses.

 

The Appellate Division held, inter alia,  that although the plaintiff commenced the action in April 2012, there was  no evidence that his income changed at any time between the commencement of the action and the end of 2012. Therefore,  Supreme Court providently exercised its discretion in determining the value of the plaintiff=s enhanced earning capacity based on his 2012 earnings. It agreed with the Supreme Court’s determination that the defendant was entitled to a 25% share of the plaintiff=s enhanced earning capacity from his medical education and training. The plaintiff=s student loans were paid with marital funds, and the defendant made substantial contributions by, inter alia, supporting his educational endeavors, working from the time of the marriage in June 1998 until she started law school in September 2001 and again from September 2008 until May 2011, contributing her earnings to the family, being the primary caregiver of the parties= two children, cooking family meals, and participating in housekeeping responsibilities. The fact that the parties employed a nanny for a period of time to assist with housekeeping and childcare responsibilities did not require a reduction in the defendant=s distributive share of his enhanced earning capacity (see e.g. NingBYen Yao v. KaoBYao, 147 A.D.3d 624, 630B631, 48 N.Y.S.3d 337). According to the plaintiff=s statement of net worth, sworn to on May 15, 2017, he incurred $231,510 in student loan debt pursuing his medical degree. As the plaintiff=s enhanced earning capacity was marital property, the Supreme Court should have required the defendant Ato bear a concomitant portion of the student loan debt incurred@ by the plaintiff in pursuing his degree. It held that the defendant=s 25% share of that debt should have been set off against her distributive award of the plaintiff=s enhanced earning capacity.

 

The Appellate Division held that in consideration of the nonliquid nature of the plaintiff=s assets and the substantial amount of the award, the court should have permitted the plaintiff to pay the award in installments over a period of 10 years, rather than 5 years, together with interest at the statutory rate of 9% per annum from the date of the order appealed from.

 


The Appellate Division held that  the Supreme Court improvidently exercised its discretion in capping the combined parental income in excess of $143,000 at $400,000 when calculating the plaintiff=s child support obligation. Where the combined parental income exceeds that ceiling, the court, in fixing the basic child support obligation on income over the ceiling, has the discretion to apply the factors set forth in Domestic Relations Law ' 240(1Bb)(f), or to apply the statutory percentages, or to apply both. AThe court must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap. Although the Supreme Court set forth the factors it considered in determining the child support percentage of 25% of the parties= combined income in excess of $143,000, the court did not offer any reasons as to why it was appropriate to award child support based on combined parental income up to $400,000. Although the plaintiff was a high‑wage earner, the record demonstrated that the children lived a middle‑class lifestyle. While the parties employed a live‑in nanny for several years to assist with childcare, there was no indication that the children lived a lavish lifestyle. It held that the court should have limited the combined parental income in excess of the statutory cap to $250,000.

 

The Supreme Court erroneously directed the plaintiff to contribute to the college expenses of the parties= younger child. At the time of trial, the parties= younger child was 14 years old, and no evidence was presented concerning her academic ability, interest in attending college, choice of college, or the expenses attendant with college. It held that it was premature for the court to direct the plaintiff to contribute to the college expenses of the parties= younger child. However, Supreme Court providently exercised its decision in directing the plaintiff to pay 92% of the college expenses of the parties= older child. However, the child support award should have included a provision either directing that, when that child is living away from home while attending college, the plaintiff=s monthly child support obligation shall be reduced, or awarding the plaintiff a credit against his child support obligation for any amounts that he contributes toward college room and board expenses for that child during those months. It held that the court should determine the plaintiff=s child support obligation, considering any time periods that the child is living away from home at college. The Supreme Court did not impose a SUNY cap on the plaintiff=s obligation to contribute to the parties= older child=s college expenses. It held that whether to impose a SUNY cap is determined on a case‑by‑case basis, considering the parties= means and the child=s educational needs.

 

 

Court providently exercised its discretion in according relatively little weight to the preferences of teen age children who sought to escape structure imposed by mother

 

In Pryne v Pryne, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6478951 (Mem), 2020 N.Y. Slip Op. 06269 2020 WL 6478951 (2d Dept.,2020) the parties had three children Neal P., born in 2003, Abigail P., born in 2004, and Jake P., born in 2008. The Appellate Division held, inter alia, that a child=s preference is not determinative and, in weighing this factor, the court must consider the age and maturity of the child. Under the circumstances of this case, where, inter alia, the teenaged children Neal and Abigail apparently sought a change of physical custody to the father in order to escape from the more structured constraints imposed by the mother to the more indulgent parenting style of the father, the court providently exercised its discretion in according relatively little weight to the preferences of Neal and Abigail, in relation to the other relevant factors.

 

 

 


Court may not reduce or vacate arrears which accrued prior to the date of petition to vacate acknowledgment of paternity even where DNA shows petitioner not the father

 

In Westchester County Department of Social Services v Clarke, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6478596 (Mem), 2020 N.Y. Slip Op. 06277 (2d Dept.,2020) Clarke commenced a proceeding pursuant to Family Court Act ' 516Ba to vacate his acknowledgment of paternity. After genetic marker testing established that Clarke was not the child=s biological father, the Family Court granted the petition. In this proceeding, the court issued an order terminating Clarke=s support obligation effective April 4, 2018. Clarke appealed challenging the effective date of the termination of his support obligation. The Appellate Division agreed with Family Court’s determination to terminate Clarke=s support obligation effective as of the date of his petition to vacate the acknowledgment of paternity. It held that the court was prohibited from vacating arrears that accrued prior to the date of Clarke=s petition seeking vacatur of the acknowledgment of paternity (Family Ct. Act ' 451[1]) Child support arrears must be awarded in full regardless of whether requiring the party to pay the arrears will result in grievous injustice. The court may not reduce or vacate arrears which accrued prior to the date of Clarke=s petition, even if it was inappropriate to impose any child support obligation on him in the first place and even though it has been established that he is not the child=s biological father.

 

 

Where husband=s answer dated March 9, 2017 was not filed until August 8, 2017 Appellate Division holds he was entitled to child support retroactive to August 8, 2017, the date on which he first made an application for such relief.

 

In Pace v Pace, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 6324729, 2020 N.Y. Slip Op. 06181 (3rd Dept, 2020) Plaintiff (wife) and defendant ( husband) married in 1995 and had four children. The matter  proceeded to trial on the issues of equitable distribution and child support. The parties waived maintenance.  Supreme Court equitably distributed the parties= marital property and directed the wife to pay the husband $800 per week in child support and $14,300 as retroactive temporary child support dating back to August 8, 2017.

 

The Appellate Division discerned no abuse of discretion in Supreme Court’s determination that the appreciation in value of the five subject real properties which he owned before marriage was marital property and that the wife was entitled to 35% of the total appreciation value .

 

The Appellate Division   held that with respect to the mixed‑use properties, Supreme Court did not abuse its discretion in adopting the valuations offered by the wife=s expert, notwithstanding the expert=s inability to use the preferred income capitalization approach to calculate the date of marriage values. Data regarding the properties= income at the time of the marriage was unavailable and the wife=s expert used the income capitalization approach, together with some consideration of the comparable sales approach, to calculate the 2018 values of the properties. Under the circumstances, including that the husband=s expert also utilized the income capitalization approach to assign 2018 valuations to the properties, it found that the methodologies employed by the wife=s expert were reasonable (see generally Ciaffone v. Ciaffone, 228 A.D.2d 949, 951, 645 N.Y.S.2d 549 [1996] ).

 

The husband asserted that Supreme Court’s retroactive child support award should have dated back to March 9, 2017, inasmuch as he first requested child support in his answer and his answer bore such date. However, as confirmed by the County Clerk=s office, the husband=s answer was not filed until August 8, 2017. Thus, Supreme Court properly concluded that the husband was entitled to child support retroactive to August 8, 2017, the date on which he first made an application for such relief (see Domestic Relations Law '' 236[B][7][a]; 240[1][j] ).

 

The Appellate Division affirmed Supreme Courts award to the husband of 50% of the value of the  wife=s audiology practice , which was stipulated to be $1.1 million as of the date of commencement.

 

 

Family Court held that pursuant to Executive Law ' 995‑c (9)(b)(iii) it has discretion to expunge a delinquency respondent=s DNA profile

 

In Matter of John R., 69 Misc.3d 493 (Family Court, 2020) the Family Court held that pursuant to Executive Law ' 995‑c (9)(b)(iii), as interpreted by Matter of Samy F. v. Fabrizio, 176 A.D.3d 44, 110 N.Y.S.3d 26 [1st Dept. 2019]), it has discretion to expunge a delinquency respondent=s DNA profile, which had been uploaded into the database of the Office of the Chief Medical Examiner. The court ordered expungement based upon the facts that the police gave respondent a can of soda at the precinct and respondent=s genetic material was surreptitiously taken from the soda can; and respondent successfully completed a supervised adjournment in contemplation of dismissal (AACD@), resulting in the dismissal and sealing of his delinquency matter. Respondent cited to Matter of Jahsim R., 66 Misc. 3d 426, 114 N.Y.S.3d 871 [Fam. Ct., Bronx County 2019] ) where a Family Court judge found, based on Samy F., that the family court does have jurisdiction to expunge a respondent=s DNA profile from the OCME database. The Jahsim R. court found that Samy F. was applicable since a juvenile delinquency adjudication, like a youthful offender adjudication, is not a conviction for a crime. The court agreed with the Jahsim R. court that regarding the discretionary expungement of DNA profiles from the OCME database, a juvenile delinquent is not and should not be afforded fewer adjudication protections than a YO or an adult in equivalent circumstances.

 

Error to deviate from guideline amount of temporary maintenance without making a finding that the  amount was unjust or inappropriate

 

In Capozzoli v Capozzoli, 2020 WL 6051566 (2d Dept,2020) the Appellate Division held that it was error to deviate from the guideline amount of temporary maintenance without making a finding that the  amount was unjust or inappropriate based upon the factors enumerated in Domestic Relations Law § 236(B)(5–a)(h).

 

 

Persistent interruptions by Respondent during his telephonic participation  hearing warranted termination of the call and constituted a default.

 

            In Matter of Bartosz B, --- N.Y.S.3d ----, 2020 WL 6051501, 2020 N.Y. Slip Op. 05743 (2d Dept.,2020) during a combined dispositional hearing and hearing to address the mother’s custody petition the father’s persistent interruptions during his telephonic participation at the hearing warranted termination of the call and constituted a default.

 

 

“Affinity” defined for purposes of Family Offense Proceeding

 

 

In the Matter of KR, v. FB, --- N.Y.S.3d ----, 2020 WL 6141945, 2020 N.Y. Slip Op. 20270 (Fam Ct, 2020, a family offense proceeding,  the court observed that for purposes article 8, “members of the same family or household” means, among other things, persons related by consanguinity or affinity. The Court explained that a relationship of affinity is ‘the relation that one spouse has to the blood relatives of the other spouse; relationship by marriage’ (Black’s Law Dictionary 70 [10th ed. 2014] ) (Matter of Arnold v. Arnold, 119 AD3d 938, 939, 989 NYS2d 879, 880 [2d Dept 2014]). A relationship meeting Family Court Act § 812’s requirements exists when the petitioner and respondent are linked by a combination of consanguinity and affinity, such as a child who is the blood relative of the child’s parent (consanguinity) and therefore has a relationship by affinity with the parent’s spouse (frequently called a step-parent) (Id. [“(W)hile spouses remain married, a stepchild is related by affinity to a stepparent”] ), The two steps are consanguinity between child and parent (step one) and affinity between the parent and the stepparent (step two).

Note: “Affinity” is defined to be, “The relation contracted by marriage between a husband and his wife's kindred, and between a wife and her husband's kindred, in contradistinction from consanguinity, or relation by blood.” Carman v Newell, 1845 WL 4323 (Sup Ct, 1845)

 

 

 

 

 

Second Department(1) reminds the matrimonial courts of their fundamental obligations to conduct a trial on the contested financial issues, to develop a clear trial record, to render a comprehensive decision which covers all of the issues in dispute, and to issue a comprehensive judgment which clearly and definitively sets forth the parties’ rights and obligations. Courts should refrain from issuing piecemeal decisions. (2) reiterates rule that distributive award is not a substitute for maintenance; (3)  specifies that trial court must  make appropriate findings as to the parties’ respective combined incomes and  current needs and expenses of the children, and indicate the specific reasons for its child support award and (4) holds that counsel fees may be awarded to monied spouse (contrary to First Department rule).

 

            In Kaufman v Kaufman, --- N.Y.S.3d ----, 2020 WL 6051523, 2020 N.Y. Slip Op. 05732 (2d Dept.,2020) 

 Maintenance

            The court determined that the defendant’s obligation to pay interim maintenance would terminate once the plaintiff received $5 million in hand in non-retirement assets. Until then, the defendant was to pay the plaintiff $10,000 per month. The payments were to be considered an advance on equitable distribution, as long as in the final determination of the case (including after appellate review), the plaintiff receives at least $5 million. The plaintiff argued on appeal  that the Supreme Court’s maintenance determination eroded her distributive award.  In the context of this case, and under the constraints imposed by the limitations on the arguments presented by both sides, it found it improper for the Supreme Court to have directed that the $10,000 monthly payments be treated as a credit against her equitable distribution award. A distributive award is intended to reflect the equitable distribution of the marital assets between the parties, while maintenance is a support payment awarded to assist the less affluent spouse in meeting his or her reasonable needs in light of the predivorce standard of living.  Where a substantial equitable distribution award obviates, or reduces, the need for maintenance, it would not be improvident to provide for, or increase the amount of, maintenance on account of a delay in the payment of the equitable distribution award. However, it is improper to give the more affluent spouse a credit against equitable distribution on account of the maintenance paid. Doing so essentially means that the less affluent spouse would end up paying his or her own maintenance, though the court determined that the more affluent spouse should be paying maintenance. The Appellate Division eliminated that direction by the court.

 

            The Appellate Divison agreed with plaintiff that the  Supreme Court failed to properly determine the issue of child support in accordance with the Child Support Standards Act. Where, as here, the combined parental income exceeds the statutory baseline, the court may apply the statutory percentage to all or part of the income over the baseline or it may consider the statutory factors to determine what, if any, additional child support should be awarded. But whatever the court does, there must be “some record articulation of the reasons for the court’s choice ... to facilitate ... review.” The court’s decision ‘should reflect a careful consideration of the stated basis for its exercise of discretion, the parties’ circumstances, and its reasoning why there [should or] should not be a departure from the prescribed percentage’ ” ‘In addition to providing a record articulation for deviating or not deviating from the statutory formula, a court must relate that record articulation to the statutory factors’ . In this case, the Supreme Court failed to make appropriate findings as to the parties’ respective combined incomes and the current needs and expenses of the children. In view of its bifurcation of the issues, and the deferral of child support to a later phase of trial that never occurred, the parties did not have a full and fair opportunity to submit their evidence as to their current incomes and as to the current needs and expenses of the children. While the court applied the statutory percentage to $350,000 in combined parental income, it did not provide any explanation as to why it chose that amount, as opposed to some greater or lesser amount, or why the resulting amount of child support was the appropriate level of support. For these reasons, the child support determinations made by the Supreme Court was set aside, including the allocation of responsibility for statutory add-ons, and the matter remitted to the Supreme Court for further proceedings.

 

            The Appellate Division agreed with the  defendant’s contention that the Supreme Court erred in awarding the plaintiff $1.5 million in counsel fees without holding an evidentiary hearing, as such award was in the nature of a final award of counsel fees. Despite the court’s framing of the $1.5 million in counsel fees as an “interim” award, it was tantamount to a final award, as it was set forth in an order after trial in which the court directed the plaintiff to settle a judgment of divorce on notice in connection therewith. Where, as here, the parties did not stipulate to waive a hearing, a final award of counsel fees can only be granted after an evidentiary hearing is conducted to permit the opposing party “a meaningful way of testing the [attorney’s] claims relative to time and value” The Supreme Court erred in endeavoring to avoid its obligation to hold an appropriate hearing by simply relying upon the history of interim awards. The requirement of a hearing on counsel fees at the end of a matrimonial case cannot be skirted by asserting that the issue has been resolved through successive interim fee motions and orders.

            The Appellate Division pointed out that in  exercising judicial discretion to determine counsel fee applications, the courts must take into account not only the financial circumstances of the parties but the circumstances of the case as a whole, including the relative merits of the parties’ positions and whether either party has delayed the proceedings unreasonably or engaged in unnecessary litigation. A less-monied spouse should not be expected to exhaust or spend down a prospective or actual distributive award in order to pay counsel fees as the result of unreasonable or excessive litigation conduct by the adverse party (see Prichep v. Prichep, 52 A.D.3d 61, 66, 858 N.Y.S.2d 667). On the other hand, the more affluent spouse should not be treated as an open-ended checkbook expected to pay for exorbitant legal fees incurred by the less affluent spouse through excessive litigation or the assertion of unreasonable positions. Where a party has asserted unreasonable positions or failed to cooperate in discovery, and thereby increased the cost of the litigation, the court may make a counsel fee award in favor of the offended party or not make, or make a lesser award, in favor of the offending party. The Court observed that an “ assessment of litigiousness cannot be made simply by looking at which party made the most motions since the need for motion practice may have been prompted by unreasonableness on the part of the non-moving party. Determining whether conduct is reasonable or obstructive on the basis of conflicting affirmations of counsel may often prove to be difficult. An evidentiary hearing may well be of inestimable value in assessing the relative merit of the parties’ conduct. The court held that  the issue of counsel fees case had  to be addressed at an evidentiary hearing.

 

 

 

There is no basis for an award of counsel fees where the court’s award to the defendant made no reference to the parties’ finances.

 

 

            In Schwartz v Schwartz, --- N.Y.S.3d ----, 2020 WL 5806649, 2020 N.Y. Slip Op. 05248(2d Dept.,2020) a post-judgment application for permission to relocate

 

 

 

 

FCA § 716, which permits the Family Court to substitute a neglect petition for a PINS petition does not specify exactly what substitution entails, or procedurally how the case advanced ,and has not been clarified by the Courts.

            In Matter of Pins Proceeding Beekmantown Central School District v John,.--- N.Y.S.3d ----, 2020 WL 5950158, 2020 N.Y. Slip Op. 20252(Family Court, 2020). In order to give meaning to FCA § 716, and to protect Ms. S.’s Due Process rights, the Court concluded that the term “substitute” in the context of FCA § 716, requires the filing of a new valid Article 10 petition. While the Court has the authority to authorize anyone to file an Article 10 petition pursuant to FCA § 1032, the Court found that it would serve both the interest of justice and the administration of justice to require the Clinton County Department of Social Services to file a petition.

 

 

 

Where it is evident that Supreme Court considered all relevant factors and the reasons for its decision are articulated, the court is not required to specifically cite to and analyze each statutory factor.

 

            In Fishman v Fishman, --- N.Y.S.3d ----, 2020 WL 5223579, 2020 N.Y. Slip Op. 04827

 

 

Before a court strikes a pleading or precludes evidence based failure to provide court-ordered discovery, there must be a clear showing that the failure was willful and contumacious.

 

 In Ritornato v Ritornato, --- N.Y.S.3d ----, 2020 WL 5540086 (Mem), 2020 N.Y. Slip Op. 04981(2d Dept.,2020) The willful and contumacious character of a party’s conduct can be inferred from either (1) the repeated failure to respond to demands or comply with court-ordered discovery, without a reasonable excuse for these failures, or (2) the failure to comply with court-ordered discovery over an extended period of time”.

 

 

A Prior restraint on spouses speech must be couched in narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order

 

            In Karantinidis v Karantinidis, --- N.Y.S.3d ----, 2020 WL 5648552, 2020 N.Y. Slip Op. 05039 (2d Dept.,2020) the Appellate Division held that an injunctive order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order (see Carroll v. President and Comm’rs of Princess Anne, 393 U.S. 175, 183, 89 S.Ct. 347, 21 L.Ed.2d 325). The order must be tailored as precisely as possible to the exact needs of the case.

 

 

Objections from nonfinal orders made by a Support Magistrate are typically not reviewed

 

            In Swift v Mead, --- N.Y.S.3d ----, 2020 WL 5665278, 2020 N.Y. Slip Op. 05099(3rd Dept.,2020) the Appellate Division held that objections from nonfinal orders made by a Support Magistrate are typically not reviewed unless they could lead to irreparable harm”

 


Monday, October 05, 2020

Recent Decisions and Legislation October 1, 2020

 

 

 

September 16, 2020

Appellate Division, Second Department

Defendants sustained physical abuse of the plaintiff constituted egregious marital fault to be factored into equitable distribution award

 In Socci v Socci, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 5223043 (Mem), 2020 N.Y. Slip Op. 04888 (2d Dept.,2020) the parties were married on February 7, 1987. In March 2008, the defendant was convicted, upon his pleas of guilty, of assault in the second degree (two counts), kidnaping in the second degree, and aggravated criminal contempt related to incidents in which he beat the parties= two daughters with a belt and chained them to a tree overnight, and forced the plaintiff into his vehicle and tried to make her pour gasoline on herself. In October 2009, the plaintiff commenced this action for a divorce. At the trial in the divorce action, the plaintiff testified as to these events, as well as numerous other incidents of physical abuse during the marriage. Supreme Court, among other things, found that the defendant=s egregious conduct in abusing the plaintiff over the course of the marriage warranted consideration in determining equitable distribution. Based, in part, on the defendant=s egregious fault, the court awarded the plaintiff 75% of the net proceeds from the sale of the marital residence and 60% of the parties= investment and bank accounts and of the marital contributions to the defendant=s deferred compensation plan. The Appellate Division affirmed. It held that the  general rule in New York is that marital fault should not be considered in determining equitable distribution. However, egregious marital fault may be considered in rare cases involving extreme conduct which shocks the conscience of the court. The marital misconduct must be Aso egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship. It found Supreme Court providently exercised its discretion in finding that the defendant=s sustained physical abuse of the plaintiff over the course of their marriage constituted egregious marital fault to be factored into the equitable distribution award in addition to other considerations, and providently exercised its discretion in fashioning the equitable distribution award (see Havell v. Islam, 301 A.D.2d at 345, 751 N.Y.S.2d 449; Brancoveanu v. Brancoveanu, 145 A.D.2d at 398, 535 N.Y.S.2d 86).

 

Court imputing income must provide a clear record of the source of  imputed income, reasons for the imputation, and the resultant calculations.

In Pilkington v Pilkington,   185 A.D.3d 844, 127 N.Y.S.3d 523, 2020 N.Y. Slip Op. 03931 (2d Dept, 2020) the parties were married in 2003 and had two children, born in 2006 and 2007, respectively. In 2013, the plaintiff commenced the action for a divorce. After the parties stipulated to the terms of custody and parental access, they agreed to have the Supreme Court decide the Afinancial, property and employment matters@ based on their submissions in lieu of a trial. The Appellate Division held that Athe court may impute income based on the parent=s employment history, future earning capacity, educational background, or money received from friends and relatives. However, the court must provide a clear record of the source of the imputed income, the reasons for the imputation, and the resultant calculations, It  agreed with the Supreme Court’s determination to impute income of $85,000 to the plaintiff based, in part, on contributions he received from his fiancée, but the amount imputed was not supported by the record .It also agreed with the court’s determination to impute income to the plaintiff based on income he received from performing side jobs. It also held that based upon the defendant=s skills and employment experience, and contributions from her family, the court improvidently exercised its discretion in imputing to her an annual income of only $25,000. Since the documents submitted by the parties were inadequate to determine the contributions from the plaintiff=s fiancée and the average income earned by the plaintiff from performing side jobs, and the parties were not afforded the opportunity to submit further documents, the matter was remitted to the Supreme Court to hold a hearing on the issue of how much income should be imputed to each party, and the calculation of a new child support obligation thereafter.

 The Appellate Division observed that pursuant to Domestic Relations Law ' 240(1Bb)(c)(7), the court may direct a parent to contribute to a child=s education. In determining whether to award educational expenses, the court must consider the circumstances of the case, the circumstances of the respective parties, the best interests of the children, and the requirements of justice.  Supreme Court providently exercised its discretion in not requiring the plaintiff to pay a pro rata share of the parties= children=s private school tuition. The defendant failed to submit evidence to establish that the education provided by the public schools in Florida would be inferior to that provided by Hillel Day School of Boca Raton, a private religious school, or that the needs of either child would be better served by their attendance at a private religious school.


September 1, 2020

Executive Order 202.60 continues the modification and suspension of laws relating to the disaster emergency.

 

The Executive Order extends the provisions tolling the Statute of Limitations until October 4, 2020. It also modifies previous executive orders to provide that the tolling of civil statutes of limitation be lifted as it relates to any action to challenge the approval by any municipal government or public authority of a construction project that includes either affordable housing or space for use by not-for-profit organizations. The EO further states that "The suspension of Section 30.30 of the Criminal Procedure Law, is hereby modified to require that speedy trial time limitations remain suspended in a jurisdiction until such time as petit criminal juries are reconvened in that jurisdiction; Criminal Procedure Law 170.70 is no longer suspended, and for any appearance which has been required to be in-person may continue to be conducted virtually with the consent of the parties."

 

Appellate Division, Second Department Amends Rules of Practice


By Administrative Order issued on July 1, 2020, the Second Department has amended its local rules of practice to omit the requirement that papers in relation to motions and original proceedings be filed in both digital and hard copy format. Rather, all such papers “shall be submitted in digital format, shall comply with the technical requirements for electronically filed documents (22 NYCRR Part 1245, Appendix A), shall be served on all parties in digital format, and shall be filed by uploading through the digital portal located on the home page of the Court’s website with proof of service” (Admin Order 2020-0701). Hard copy submissions are only required when specifically requested by the Court. This amendment, by which subdivision (d) was added to section 670.4 of the Second Department’s Rules of Practice, applies to both NYSCEF matters and matters in which electronic filing via the NYSCEF system is not mandated. Exemptions are provided for exempt attorneys and exempt litigants as those terms are defined in the Electronic Filing Rules of the Appellate Division (22 NYCRR 1245.4), who must be served and must file in hard copy.


Second Department


To find a marital contract unconscionable, two elements must be shown: procedural unconscionability, and substantive unconscionability

In Cilento v Cilento, --- N.Y.S.3d ----, 2020 WL 4661442, 2020 N.Y. Slip Op. 04453 (2d Dept.,2020) the parties were married on January 20, 1996. In April 2018, the plaintiff commenced this action for a divorce seeking, inter alia, to incorporate a stipulation of settlement that the parties had entered into in August 2017 into the judgment of divorce. The defendant  moved to vacate the stipulation on the ground that it was unconscionable. The Supreme Court denied the defendant’s motion, and the Appellate Division affirmed.  As relevant to the appeal, the attorney who the defendant retained in connection with a Family Court proceeding and who he used in the past , when he needed an accurate Italian translation and understanding of legal documents was the mediator the parties thereafter selected and each paid to assist them in formulating the terms of the stipulation after two sessions with him.

            The Appellate Division held that in order to find a marital contract unconscionable, two elements must be shown: procedural unconscionability, which requires “[a] lack of meaningful choice” on the part of one of the parties, and substantive unconscionability, which requires contract terms which are “unreasonably favorable” to the other party (Gillman v. Chase Manhattan Bank, 73 N.Y.2d 1, 10–12, 537 N.Y.S.2d 787, 534 N.E.2d 824). The defendant failed to establish that the stipulation was procedurally unconscionable. The stipulation was the product of a mediation conducted by an attorney who had represented the defendant on past occasions—specifically, according to the defendant, when he needed an accurate translation and understanding of legal documents. The defendant’s contention that he signed the stipulation without fully understanding its terms was wholly inconsistent with his contention that the reason he had retained the attorney  in the past was because he had used the attorney to explain and translate legal documents. It  agreed with the Supreme Court’s determination that the stipulation at issue was not procedurally unconscionable.

             The defendant also failed to show that the stipulation was substantively unconscionable. Each party relinquished significant rights under the terms of the stipulation.

 

Third Department


Only penalty Family Court may impose for willful violation of a custodial order without a concurrent modification petition pending is a monetary fine and/or imprisonment

           

In Matter of Gerard P. v Paula P. --- N.Y.S.3d ----, 2020 WL 4678335, 2020 N.Y. Slip Op. 04515(3d Dept.,2020) the Appellate Division held that Family Court erred in dismissing the mother’s  modification petitions without conducting a hearing. In any modification proceeding, the threshold issue is whether there has been a change in circumstances since entry of the prior custody order that warrants a review of the issue of custody to ensure the continued best interests of the children. An evidentiary hearing is generally necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the Court has sufficient information to undertake a comprehensive independent review of the children’s best interests.

 

            The Appellate Division found that Family Court did not, as required on a motion to dismiss,  liberally construe the mother’s pro se petitions, accept her allegations as true, afford her the benefit of every possible inference or resolve credibility issues in her favor when determining the motions to dismiss. Family Court improperly made factual findings and credibility determinations, inappropriately resolving the conflicting versions of events, as set forth in the mother’s petitions and the father’s supporting affidavits, against the mother and in favor of the father. Such factual findings and credibility assessments have no place in an order resolving a motion to dismiss for failure to state a claim.

             In reversing the orders it pointed out that generally, the only available penalty that Family Court may impose for a willful violation of a custodial order without a concurrent modification petition pending is a monetary fine and/or a period of imprisonment (see Judiciary Law § 753[A]; Family Ct. Act § 156). Family Court sanctioned the mother by modifying the joint legal order of custody and granting the father sole legal custody of the children without determining whether there had been a change in circumstances. In addition, Family Court failed to engage in any discernible analysis of whether a modification was in the best interests of the children.

 

Supreme Court

 

Permission to serve defendant by an alternative method (see CPLR 308(5)) FedEx International Economy mail granted

 

            In Sweet-Martinez v Martinez, --- N.Y.S.3d ----, 2020 WL 4590510, 2020 N.Y. Slip Op. 20195 (Sup Ct., 2020) plaintiffs ex parte motion for permission to serve defendant via an alternative method (see CPLR 308 [5]), namely FedEx International Economy mail to his last known address in Mexico was granted. The parties were married on November 17, 2007. Defendant was  deported to Mexico on March 8, 2011. Plaintiff commenced this action for a no-fault divorce on December 28, 2019 (see Domestic Relations Law § 170 [7]). Plaintiff argued that  service upon defendant by mail was permissible under article 10 (a) of the Hague Convention on Service Abroad, which provides: “Provided the State of destination does not object, the present Convention shall not interfere with the freedom to send judicial documents, by postal channels, directly to persons abroad.” The Court observed that although there is no case law on this precise issue in New York, other courts have found that Mexico has not outright objected to article 10 (a) of the Hague Convention permitting service of process by mail (see e.g. Intl. Transactions, Ltd v Embotelladora Agral Regionmontana SA de CV, 277 F Supp 2d 654, 663 [ND TX 2002]; Matter of Root, 185 Wash App 1009, 2014 WL 7341131, *9 [Washington Ct App 2014]). To that end, the Court found that service upon defendant via FedEx International Economy mail to his last known address in Mexico was permissible — under both CPLR 308 (5) and article 10 (a) of the Hague Convention.


August 16, 2020


Appellate Division, Second Department

Children failed to receive meaningful assistance of counsel where AFC substituted judgment and took position contrary to wishes of children.

 In Silverman v Silverman,‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 4342466, 2020 N.Y. Slip Op. 04338 (2d Dept.,2020) the Appellate Division found that the AFC improperly substituted judgment and took a position that was contrary to the wishes of her clients, the parties= children, to such a degree that the custody order should be reversed and the matter remitted to the Supreme Court,  for the appointment of a new AFC, a de novo hearing and new determination

The parties entered into a so ordered stipulation of settlement dated October 17, 2016  where they agreed to joint legal custody of the children, with residential custody to the defendant and parental access to the plaintiff. In April 2017, prior to the entry of a judgment of divorce, the plaintiff moved, inter alia, to modify the stipulation so as to award him residential custody of the children. While the plaintiff=s motion was pending, the defendant filed a family offense petition dated November 21, 2017, in the Family Court, alleging that the plaintiff strangled the youngest child. The Family Court issued a temporary order of protection against the plaintiff, which, inter alia, directed him to stay away from the children. The plaintiff successfully moved to transfer the family offense proceeding to the Supreme Court. After an in camera interview with the children, the Supreme Court dismissed the family offense petition, vacated the temporary order of protection, and directed overnight parental access with the plaintiff. After a hearing, the Supreme Court granted the plaintiff=s motion to modify the stipulation to award him residential custody of the children.

The Appellate Division observed that an AFC is required to Azealously advocate the child=s position. The Rules of the Chief Jude state that Athe [AFC] should be directed by the wishes of the child, even if the [AFC] believes that what the child wants is not in the child=s best interests= and that the [AFC] should explain fully the options available to the child, and may recommend to the child a course of action that in the [AFC]>s view would best promote the child=s interests=@ (22 NYCRR 7.2[d][2]). An AFC would be justified in substituting judgment and advocating a position that is contrary to the child=s wishes only if the AFC is Aconvinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child=s wishes is likely to result in a substantial risk of imminent serious harm to the child@ (22 NYCRR 7.2[d][3]. AIn those situations the attorney must still inform the court of the child=s articulated wishes if the child wants the attorney to do so=@( 22 NYCRR 7.2[d][3]). The Appellate Division  observed that the role of the attorney for the child is to represent the child=s wishes, not to give the opinion as the child=s attorney as to his [or her] best interests.  It found that the AFC advised the Supreme Court that the children wanted to spend daytime with the plaintiff but they wanted to spend overnights with the defendant. They wanted residential custody to remain with the defendant. The AFC informed the court of her clients= position at the beginning of the hearing. Nevertheless, the AFC=s representation was in direct contravention of her clients= stated parameters. Throughout the course of the proceedings, she failed to advocate on behalf of her clients, who were 13 and 11 years old at the time of the hearing, and who were both on the high honor roll and involved in extracurricular activities. The AFC actively pursued a course of litigation aimed at opposing their stated positions. She joined the plaintiff in opposing the introduction of evidence and witnesses in support of the defendant=s case. When the defendant sought to introduce evidence in defense of the plaintiff=s allegations that the defendant provided the children with unnecessary medical care, the AFC joined the plaintiff in opposing the introduction of the defendant=s evidence. The AFC also opposed the introduction of evidence that may have supported one child=s claim that the plaintiff attempted to strangle her. The AFC objected to the testimony of school personnel for the purpose of explaining the children=s seemingly excessive school absences. The AFC=s questions of the plaintiff during cross-examination were designed to elicit testimony in support of the plaintiff=s case, in opposition to her clients= wishes. Her questions of the psychologist chosen by the parties to provide therapeutic parental access, were aimed at supporting the plaintiff in his quest for residential custody. The AFC objected to the introduction of witnesses and evidence favorable to the defendant=s case, but she did not make similar objections to the plaintiff=s evidence. Upon successfully arguing to preclude the defendant=s proffered evidence, the AFC proceeded to use the defendant=s lack of evidence to support the plaintiff=s positions. She also failed to object to the Supreme Court’s decision to limit the amount of time for the defendant to present her case. She also failed to take an active role in the proceedings by presenting evidence and witnesses on behalf of her clients.

The Appellate Division held that AFC=s failure to support her clients= position was particularly troubling due to the allegations of domestic violence made by both the defendant and the children.  Nevertheless, she continued to argue in support of residential custody to the plaintiff, in opposition to the wishes of her clients. The record established that neither of the exceptions to the rules regarding the AFC=s duty were  present here. There was no finding that the children lacked the capacity for knowing, voluntary, and considered judgment (see 22 NYCRR 7.2[d][3]). Hence, the children failed to receive meaningful assistance of counsel. Under these circumstances, it was improper for the AFC to substitute judgment and take a position that was contrary to the wishes of the children.

 

Supreme Court

Service of summons authorized under Hague Convention on Service Abroad by FedEx International Economy mail to last known address in Mexico.

 

In Sweet‑Martinez v Martinez, ‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 4590510, 2020 N.Y. Slip Op. 20195 (Sup Ct., 2020) plaintiffs ex parte motion for permission to serve defendant via an alternative method (see CPLR 308 [5]), namely FedEx International Economy mail to his last known address in Mexico was granted. The parties were married on November 17, 2007. Defendant was  deported to Mexico on March 8, 2011. Plaintiff commenced this action for a no‑fault divorce on December 28, 2019 (see Domestic Relations Law ' 170 [7]). Plaintiff argued that  service upon defendant by mail was permissible under article 10 (a) of the Hague Convention on Service Abroad, which provides: AProvided the State of destination does not object, the present Convention shall not interfere with the freedom to send judicial documents, by postal channels, directly to persons abroad.@ The Court observed that although there is no case law on this precise issue in New York, other courts have found that Mexico has not outright objected to article 10 (a) of the Hague Convention permitting service of process by mail (see e.g. Intl. Transactions, Ltd v Embotelladora Agral Regionmontana SA de CV, 277 F Supp 2d 654, 663 [ND TX 2002]; Matter of Root, 185 Wash App 1009, 2014 WL 7341131, *9 [Washington Ct App 2014]). To that end, the Court found that service upon defendant via FedEx International Economy mail to his last known address in Mexico was permissible C under both CPLR 308 (5) and article 10 (a) of the Hague Convention.

 

Family Court 

Family Offense Proceeding Dismissed on grounds of Diplomatic Immunity where Respondent and Petitioner were immune from the civil process


In Matter of F.G.O.v. B.G.,.‑‑‑ N.Y.S.3d ‑‑‑‑, 2020 WL 4379526, 2020 N.Y. Slip Op. 20184 (Fam Ct, 2020) Petitioner, who was the spouse of the Respondent sought a final order of protection. Family Court granted Respondents motion to dismiss on the  basis of Respondent=s immunity pursuant to the Vienna Convention on Diplomatic Relations (1961). Respondent stated that he was a diplomatic agent of the Permanent Mission of the Republic of Congo to the United Nations. He submitted to the Court copy of a document issued by the Permanent Mission of the Republic of Congo to the United Nations, dated October 9, 2019, which identified Respondent as a diplomatic agent; a document from the United States Mission to the United Nations which stated that the official records of the United States Mission indicated that Respondent was Anotified by the Permanent Mission of the Republic of the Congo to the United Nations in New York as First Secretary on June 20, 2016 and continues to serve in that capacity; and a United Nations Diplomatic Identification Card with his name, personal information and photograph, issued by the U.S. Department of State, which expired on June 30, 2022. The back of the card explicitly stated that the bearer of the card Aenjoys immunity from criminal jurisdiction.@ The Court held that the documentary evidence submitted, particularly the Diplomatic Identification Card, unlike an affidavit or deposition testimony, is Aessentially undeniable@ and may conclusively establish a defense to the proceeding as a matter of law.

Turning to the substance of the defense, the Court observed that the  Vienna Convention states that a Adiplomatic agent shall enjoy immunity from the civil and administrative jurisdiction [of the receiving State]@ (Vienna Convention at art. 31.1). Although there are exceptions to this immunity involving, inter alia, property in the receiving state and professional or commercial activity outside the scope of diplomatic functions, none of the exceptions are applicable here. In other words, apart from inapplicable exceptions, a diplomatic agent has absolute immunity from civil jurisdiction. The court noted that in Matter of Terrence K. (Lydia K.), 135 A.D.2d 857, 522 N.Y.S.2d 949 [2d Dept. 1987], where the Second Department found that Family Court had properly dismissed the child abuse proceeding because the respondent parents were entitled to diplomatic immunity pursuant to the Vienna Convention. The father was an attaché of the Mission of the Republic of Zimbabwe to the United Nations. The Court noted the record included a certificate stating the father was accepted by the United States Government for inclusion on the list of Members of Permanent Missions Entitled to Diplomatic Privileges and Immunities, and that the mother and child were registered as members of the household and thus share in the privileges and immunities of the father. The Court ultimately found that this evidence Aconclusively establishes that the father and his family, including the child, are immune from the civil process of the courts of this State.@ Family Court held that once diplomatic status is sufficiently established, as here, and no exceptions apply, the Court was is bound to follow the Vienna Convention and controlling precedent (see Reinoso v. Bragg, 28 Misc. 3d 1235(A), 2010 WL 3607482 [Sup. Ct., New York County 2010]). The proceeding was dismissed as the Respondent and Petitioner were immune from the civil process of the courts of this State.