Recent Decisons September 16, 2021

 September 16, 2021

 
 
Appellate Division, First Department
 
Disposition of prior petition to terminate mother parental rights which was favorable to the biological mother, did not preclude the findings of extraordinary circumstances in later kinship guardianship proceeding.

            In Matter of Guardianship of Nicolas Jude B.,  195 A.D.3d 402, 150 N.Y.S.3d 58 (1st Dept.,2021) ,in 2008, the biological mother was found to have neglected the child. The child was subsequently placed in the care of the foster mother when the child was approximately four years old and remained in her care for over 10 years. Family Court granted the foster mother’s petition to be appointed kinship guardian of the child. The Appellate Division affirmed. It found that the  evidence established that extraordinary circumstances existed as a result of the prolonged separation between the biological mother and child (see Matter of Caron C.G.G. [Alicia G.–––Jasmine D.], 165 A.D.3d 476, 85 N.Y.S.3d 430 [1st Dept. 2018]). Although more than 10 years had passed since the finding of neglect, the biological mother failed to gain insight into or even acknowledge the conditions that led to the child’s removal from her home. Instead, she denied any mental health-related issues and maintained that the child remained in foster care because the agency wanted to fraudulently collect foster care payments from the government. Her contact with the child continued to be limited to telephone calls and daytime visits in the community because she refused to allow a caseworker to conduct a home visit. She made minimal progress with her service plan. At the time of the fact-finding hearing, she had not been in touch with the agency for approximately six months. Even prior, she failed to attend the family team meetings and provide the agency with any information about her compliance with mental health services.
            The Appellate Division also held that the disposition of a prior petition to terminate her parental rights in 2013, which was favorable to the biological mother, did not preclude the findings in this later kinship guardianship proceeding.
 
 
Appellate Division, Third Department
 
 
Improper to discredit Respondent’s denial of paternity on the basis that  he never definitively took steps to dissuade the child or anyone else that he was NOT the father
 
            In Matter of Montgomery County Dept of Social Services o/b/o Donavin E, v Trini G 195 A.D.3d 1069, 149 N.Y.S.3d 667 (3d Dept.,2021)  petitioner commenced a proceeding seeking to establish paternity and collect child support on behalf of the  child (born in 2005), who was in its care. The child was 13 years old, and had no adjudicated father and no father listed on his birth certificate. The proceeding was initially brought against respondent Trini G., with whom the mother and the child lived for approximately nine years and who was alleged to have held himself out as the child’s father. In June 2018, based upon allegations that respondent Reymond F. was the child’s father, Reymond F. was added as a named respondent to the petition. Reymond F. then sought an order for a genetic marker test, which petitioner opposed on the ground of equitable estoppel. Family Court denied the request, finding that Reymond F., who “never definitively took steps to dissuade the child or anyone else that he was NOT the father,” was equitably estopped from denying paternity. Family Court granted petitioner’s application.
 
            The Appellate Division vacated the order and directed a genetic marker test.
 It observed that Petitioner, as the party asserting equitable estoppel here, must first make prima facie showing that [Reymond F.] and the child had a parent-child relationship, so as to shift the burden to [Reymond F.] to prove that it was nonetheless in the child’s best interests to order genetic marker testing.” Pursuant to Family Ct Act § 532(a), a genetic marker test may not be ordered if it is not in the best interests of the child on the basis of equitable estoppel. In the application of the doctrine of equitable estoppel it is the child’s justifiable reliance on a representation of paternity that is considered. It held that Family Court erred in denying Reymond F’s request for a genetic marker test, resulting in equitably estopping him from denying paternity. The trial testimony established that the mother and Trini G., the mother’s boyfriend with whom she and her children lived for nine years (from the time the child was two to three months old), “co-parented” all of the children by contributing financially to their care and feeding, bathing and playing with them. Trini G. referred to the child as “stepson” and the child called him “daddy.” The record established that Reymond F. had no contact with the child since birth, except during sporadic visits between Reymond F. and his two older children. Reymond F. testified that he did not do “anything” with the child during these visits, was not called “dad” and did not call the child “son.” He  testified that he never called the child on the phone, never gave him gifts and never checked on his educational or medical issues. The mother testified that, while she did not encourage the child to have a relationship with Reymond F., the child knew that Reymond F. was his biological father. Family Court, in crediting the mother’s testimony that she and Reymond F. were in an exclusive sexual relationship at the time the child was conceived, discredited Reymond F.’s denial of paternity since “[h]e never definitively took steps to dissuade the child or anyone else that he was NOT the father.” However, the court may have overlooked the absence in the record of any indication that Reymond F. played a significant role in raising, nurturing or caring for the child provided food, clothing and shelter for the child for most of his life or otherwise carried out all the traditional responsibilities of a father.  It found that petitioner failed to make prima facie showing of a recognized and operative parent-child relationship where the status interests of the child needed to be protected by imposing equitable estoppel. A review of the record did not reveal that the child would suffer irreparable loss of status or other physical or emotional harm if a genetic marker test were ordered. It found that Family Court’s determination to apply equitable estoppel to preclude genetic marker testing was not supported by a sound and substantial basis in the record. The order was reversed and the matter remitted for a genetic marker test to be administered.
 
 
 Appellate Division, Fourth Department
 
 
Despite rebuttable presumption that counsel fees shall be awarded to  less monied spouse  denial of attorney’s fees not an abuse of discretion where  largely based on courts assessment of defendant’s credibility regarding her own finances, her failure to fully account for large sums of money, and to fully account for assets belonging to plaintiff that she purportedly used for his benefit
 
            In Iannazzo v Iannazzo, --- N.Y.S.3d ----, 2021 WL 3782924, 2021 N.Y. Slip Op. 04852(4th Dept., 2021) the parties were married in October 2006 and physically separated in 2014. Supreme Court subsequently appointed a guardian for plaintiff pursuant Mental Hygiene Law 81. Plaintiff commenced the divorce action in 2019. Following a trial, Supreme Court denied denying defendant’s motion seeking, among other things, attorney’s fees, and granted plaintiff a divorce.
 
            The Appellate Division held that the court did not err in denying the wife’s her request for attorney’s fees. “The award of reasonable counsel fees is a matter within the sound discretion of the trial court. In exercising its discretion to award such fees, a court may consider all of the circumstances of a given case, including the financial circumstances of both parties, the relative merit of the parties’ positions ..., the existence of any dilatory or obstructionist conduct ..., and the time, effort and skill required of counsel. Pursuant to Domestic Relations Law § 237 (a), there exists “a rebuttable presumption that counsel fees shall be awarded to the less monied spouse.” Here, the court’s determination to deny defendant’s request for attorney’s fees was largely based on its assessment of defendant’s credibility at trial regarding the state of her own finances, her failure to fully account for large sums of money that she had received, and her failure to fully account for assets belonging to plaintiff that she purportedly used for his benefit during the period they were separated. Giving due deference to the court’s credibility determinations it concluded that the court did not abuse its discretion in denying defendant’s request for attorney’s fees.
 
            The Appellate Division agreed with defendant that the court erred in its calculation of post-divorce maintenance under the guidelines prescribed by Domestic Relations Law § 236 (B) (6). Specifically, when determining the amount of plaintiff’s income for the purposes of fashioning a post-divorce maintenance award, the court excluded plaintiff’s military pension. Although the court properly determined that the military pension was separate property and not subject to equitable distribution, that pension  should have been included as income for the purposes of determining post-divorce maintenance. By failing to include plaintiff’s pension in its calculation of income for purposes of post-divorce maintenance, the court’s initial calculation of the amount of maintenance under the guidelines (see § 236 [B] [6] [c]) was incorrect. It remitted the matter for recalculation and a new determination.
 
 
 
The essential element of the equitable defense of laches is delay prejudicial to the opposing party. The mere lapse of time, without a showing of prejudice, will not sustain a defense of laches.
 
            In Taberski v Taberski,  --- N.Y.S.3d ----, 2021 WL 3782794, 2021 N.Y. Slip Op. 04804 (4th Dept.,2021) Plaintiff and defendant were divorced in February 2009 . The j]udgment incorporated but did not merge a stipulation of the parties that, inter alia, provided that plaintiff would receive her marital share of defendant’s retirement benefits under the New York State and Local Retirement System (NYSLRS) pursuant to the Majauskas formula. A Domestic Relations Order (DRO) was filed in December 2010. In December 2011, defendant received a letter from NYSLRS approving the submitted DRO. The letter stated that the DRO was “silent” regarding what would happen if defendant retired under a disability and that NYSLRS would calculate plaintiff’s distribution using the disability retirement allowance, which was apparently pursuant to its standard policy. Defendant retired in August 2016 and filed a disability retirement application at the same time. The parties began receiving their respective shares of defendant’s service retirement benefit soon thereafter, but it was not until February 2019 that NYSLRS approved defendant’s disability retirement application, retroactive to his retirement date. The resulting lump sum retroactive payment and increased monthly benefits were both apportioned between plaintiff and defendant. Before the retroactive payment was distributed, defendant’s attorney contacted plaintiff and put her on notice that defendant was disputing her entitlement to a portion of defendant’s disability retirement benefit. In August 2019, defendant moved to amend the DRO to specify that plaintiff was not entitled to any portion of his disability retirement benefit and to recoup the retroactive payment via a reduction in plaintiff’s monthly benefits. Supreme Court granted defendant’s motion to the extent that it sought to amend the DRO to specify that plaintiff was entitled only to the service retirement benefit payments, retroactive to the date the motion was filed. The court held, however, that under the doctrine of laches defendant was not entitled to recoup the retroactive payment made to plaintiff when the disability retirement application was approved in 2019.
 
            The Appellate Division held that the court abused its discretion in determining that the doctrine of laches applies to this case. Laches is defined as such neglect or omission to assert a right as, taken in conjunction with the lapse of time, more or less great, and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity ... The essential element of this equitable defense is delay prejudicial to the opposing party. The mere lapse of time, without a showing of prejudice, will not sustain a defense of laches” (Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 816 [2003]). Here, the court found that defendant should have sought to amend the DRO in 2011, after receiving the letter from NYSLRS. But at that time, defendant was not eligible for and had not applied for a disability retirement. When his disability retirement application was approved in February 2019 and defendant became aware that plaintiff’s distribution would accordingly increase, he promptly moved to amend the DRO. Moreover, even if there was a delay here, plaintiff utterly failed to make a showing of prejudice. The court’s determination that plaintiff “relied to her detriment upon [d]efendant’s apparent acquiescence to [the] NYSLRS disability benefit determination” had no basis in the record. Plaintiff was aware that defendant was disputing her entitlement to the disability retirement allowance before she ever received the retroactive payment.
 
 
Supreme Court
 
 
Unacknowledged deferred mahr that granted the Wife $50,000 upon some unspecified occasion was unenforceable in plenary action under  Matisoff v. Dobi and  Galetta v. Galetta
 
            In Khan v Hasan, 2021 WL 4075247 (Sup. Ct., 2021) Supreme Court observed that a nikah agreement is a mutual agreement signed by spouses during their religious marriage ceremony that is typically verified by two male witnesses and includes a mahr provision. A mahr provision, or sadaq, is a term in the nikah agreement whereby the husband gives something of value to the wife. The mahr provision functions to protect the bride’s financial interests and independence and is typically only awarded in the case of divorce or upon the husband’s death. The mahr is usually paid in two parts, the first is paid immediately at the time of the religious ceremony and the second is deferred until one of the two previously stated occurrences. The Court held that an unacknowledged deferred mahr that granted the Wife $50,000 upon some unspecified occasion was unenforceable.  It agreed with the Husbands argument  that Matisoff v. Dobi, 90 N.Y.2d 127, 659 N.Y.S.2d 209 (1997) and  Galetta v. Galetta, 21 N.Y.3d 186, 969 N.Y.S.2d 826 (2013)) are controlling precedent as they collectively establish that a proper acknowledgment is an “essential prerequisite” to comply with the terms of DRL 236(B)(3) and that the document is signed by two witnesses, instead of being acknowledged, does not satisfy the requirements of DRL 236(B)(3). The language, history, and subsequent New York statutory law of DRL 236(B)(3), including the case precedent of Matisoff and Galetta, have clearly created no exception to the acknowledgment requirement.
 
  
September 1, 2021
 
Appellate Division, First Department
 
 
Under Domestic Relations Law § 236(B)(5)(a) “legal rights to specific marital property vest upon the judgment of divorce, with inchoate rights becoming actual ownership interests by virtue of an equitable distribution judgment
 
            In Tiozzo v Dangin, --- N.Y.S.3d ----, 2021 WL 3668438, 2021 N.Y. Slip Op. 04739 (1st Dept.,2021) in construing the provisions of the parties divorce agreement which was incorporated into their 2004 judgment of divorce the Appellate Division observed that in Pangea Capital Mgt., LLC v. Lakian, 34 N.Y.3d 38, 108 N.Y.S.3d 425 (2019) the Court of Appeals  held that under Domestic Relations Law § 236(B)(5)(a) “legal rights to specific marital property vest upon the judgment of divorce, with inchoate rights becoming actual ownership interests by virtue of an equitable distribution judgment.” Plaintiff argued that her interest in the subject property vested upon the filing of the judgment of divorce. It held that this case differed from Pangea in that the parties provided for (an albeit limited) joint ownership of real property after the divorce. Divorcing couples may provide in a judgment of divorce for continued co-ownership of property. Here, the nature of the ongoing joint ownership was limited and was based solely on the parties’ agreement to avoid jeopardizing the existing mortgage on the property. With respect to Tiozzo, Dangin gave up any right to continue to use the property or to share in any proceeds of the sale. He also agreed not to take any action that could interfere with Tiozzo’s “exclusive use and occupancy of the said property, including the sale of the said property.” The stipulation of divorce thus divested Dangin of his rights in the subject property. Under CPLR article 52 a judgment creditor may only seek to enforce its money judgment against a judgment debtor’s property. “Property” under CPLR 5201(b), whether realty or personalty, is defined broadly as an interest that is present or future, vested or contingent. However, the determining factor as to whether a judgment debtor’s interest can constitute property vulnerable to a judgment creditor is whether it “could be assigned or transferred” (CPLR 5201[b]). In the stipulation of divorce Dangin gave up any right to assign or transfer to a third party an interest in the subject property. The subject property was therefore beyond the reach of Lenz. Under Pangea, Tiozzo’s interest in the subject property vested when the judgment of divorce was entered. Her decision to delay her demand for a quitclaim deed from Dangin was pursuant to a right provided to her under the stipulation of divorce.
 
 
 
Appellate Division, Second Department
           
 
Neither CPLR 4201 nor any other provision confers the authority on a referee assigned to hear and report to impose a penalty on a party for failing to appear, such as precluding that party from presenting any evidence.
 
            In Pulver v Pulver, --- N.Y.S.3d ----, 2021 WL 3641419, 2021 N.Y. Slip Op. 04727 (2d Dept.,2021) in 2013, the plaintiff commenced an action for a divorce and the matter was referred to a Referee to hear and report on “the trial of all issues.” The Referee presided over a trial during which the plaintiff called the defendant to testify as an adverse witness. On August 22, 2017, the defendant failed to appear. On that date, the Referee granted the plaintiff’s application to preclude the defendant from presenting a case, except to the extent of permitting the defendant’s attorney to submit a written closing statement. The Referee determine that the defendant was able to appear in court but chose not to do so. The plaintiff proceeded to complete her case, and the Referee issued a report making findings of fact on issues pertaining, inter alia, to equitable distribution and maintenance based solely upon the plaintiff’s case.  Supreme Court granted the plaintiff’s motion to confirm the Referee’s report and denied defendants  cross-motion to reject the Referee’s report on the grounds, inter alia, that the Referee exceeded her authority by precluding him from presenting any evidence at trial. The Appellate Division reversed. It held that a referee derives his or her authority from an order of reference by the court, and the scope of the authority is defined by the order of reference. A referee who attempts to determine matters not referred to him or her by the order of reference acts beyond and in excess of his or her jurisdiction. Where, as here, the parties did not consent to the determination of any issues by the referee, and the order of reference directed the referee to hear and report (see CPLR 4317[a]), “the referee had the power only to hear and report his [or her] findings. The Referee exceeded her authority to hear and report her findings based upon the evidence presented at trial by making a determination to preclude the defendant from presenting a case. Neither CPLR 4201 nor any other provision confers the authority on a referee assigned to hear and report to impose a penalty on a party for failing to appear, such as precluding that party from presenting any evidence. CPLR 4320(a) provides that “[a] referee to report shall conduct the trial in the same manner as a court trying an issue without a jury,” which simply imposes the requirement on a referee assigned to hear and report to conduct a trial in the same manner as a court trying a nonjury trial. While the referee overseeing a trial, by necessity, has the discretion to grant or deny an application for an adjournment a referee assigned to hear and report lacks the authority to preclude a party from presenting evidence, which effectively prevents the court reviewing the referee’s report from considering potential evidence. CPLR 4320 did not give the Referee the authority to preclude the defendant from presenting a case at trial.
 
 
Father’s constitutional rights not violated by his exclusion during the child’s testimony in chambers where attorney present
 
            In  Matter of Ayden F., 194 A.D.3d 709, 148 N.Y.S.3d 481, 2021 N.Y. Slip Op. 02794 (2d Dept.,2021)  a neglect proceeding, the Appellate Division held that Family Court providently exercised its discretion in permitting the child to testify in camera with the parties’ attorneys present. The right of a respondent parent to be present at every stage of a Family Court Act article 10 proceeding is not absolute. The Family Court must balance the due process rights of the respondent parent with the mental and emotional well-being of the child. Here, the court properly balanced the respective interests of the parties and reasonably concluded that the child would suffer emotional trauma if compelled to testify in front of the father or by utilizing electronic means . Moreover, because the father’s attorney was present during the child’s testimony and cross-examined him on the father’s behalf, the father’s constitutional rights were not violated by his exclusion during the child’s testimony in chambers (see Matter of Deshawn D.O. [Maria T.O.], 81 A.D.3d at 962, 917 N.Y.S.2d 874; Matter of Q.-L.H., 27 A.D.3d at 739, 815 N.Y.S.2d 601).
 
 
Supreme Court
 
 
Service of Order to Show Cause in Colorado on a Sunday is absolutely void.  Under CPLR § 313, Plaintiff was required to serve the Defendant in accordance with New York State laws.
 
            In V.D., v. P.D.,  --- N.Y.S.3d ----, 2021 WL 3671518, 2021 N.Y. Slip Op. 21222 (Sup. Ct.,2021) |the Plaintiff moved for, among other things an Order pursuant to 28 USC § 1738, affording full faith and credit to the “Judgment of Divorce” and “Divorce Agreement,” filed in the Middlesex Probate and Family Court in the State of Massachusetts, and directing the Clerk of the Court to register it pursuant to Article 54 of the CPLR. The parties had resided in Sudbury, Massachusetts. In 2017, the Plaintiff commenced an action for divorce in the Middlesex Probate and Family Court of the State of Massachusetts. The parties were divorced pursuant to a Judgment of Divorce dated June 30, 2017 (the “Judgment”) which incorporated portions and merged portions of the parties agreement. The Judgment and the Agreement were authenticated by the Middlesex Probate and Family Court of the State of Massachusetts on April 1, 2021 and on April 8, 2021, the Plaintiff filed the authenticated Judgment and Agreement with the Nassau County Clerk’s Office. The Plaintiff argued that, pursuant to 28 USC § 1738, the “judgment of a state court shall have the same credit, validity, and effect, in every other court of the United States, which it has in the state where it was pronounced,” and that the Judgment is considered a “foreign judgment” under  CPLR § 5401. According to the Plaintiff, pursuant to NY CPLR § 5402, if filed in New York within ninety (90) days of its authentication, the Judgment may be enforced by this Court in the same manner as though it were a domestic judgment. The Plaintiff argued that because she filed the authenticated Judgment with the Nassau County Clerk’s Office within this ninety (90) day period, it must be recognized and enforced by the Court.
            Supreme Court observed that FCA § 580-601 provides that “a support order ... issued in another state or a foreign support order may be registered in this state for enforcement.” Once registered, the procedure is provided for in FCA § 580-602. FCA § 580-603 (b) provides that “[a] registered support order issued in another state or a foreign country is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this state.” Here, the Agreement specifically excluded child support “in light of” the unallocated support provision and, as such, clearly fell under the definition of a “support order” in FCA § 580-102. Supreme Court held that the Judgment, which incorporated the Agreement, was entitled to be registered and enforced in this State in the same manner as a domestic judgment.
 
            The Court noted that General Business Law § 11, entitled “Serving civil process on Sunday”, provides that: All service or execution of legal process, of any kind whatever, on the first day of the week is prohibited, except in criminal proceedings or where service or execution is specially authorized by statute. Service or execution of any process upon said day except as herein permitted is absolutely void for any and every purpose whatsoever. The Defendant was a non-resident and was domiciled in Colorado. He was personally served with “the Order to Show Cause and accompanying papers” in Colorado on a Sunday. Under CPLR § 313, the Plaintiff was required to serve the Defendant in accordance with New York State laws. Thus, the service was defective and the order to show cause was dismissed for improper service.




August 16, 2021

 Appellate Division, Second Department
 
 A determination to impute income will be rejected where the amount imputed was not supported by the record, or the imputation was an improvident exercise of discretion.

            In Weiss v Nelson, --- N.Y.S.3d ----, 2021 WL 3177791, 2021 N.Y. Slip Op. 04573 (2d Dept.,2021) the parties were married on June 14, 1987. There were three emancipated children of the marriage. The plaintiff commenced this action for a divorce on April 27, 2015. After a nonjury trial the court issued a judgment of divorce, which among other things, imputed an annual income to the plaintiff of $80,000, directed the defendant to pay taxable maintenance to the plaintiff of $1,500 per month until the plaintiff reaches the age of 62, directed the posttrial valuation of Feng Shui Institute, LLC, the plaintiff’s business, and awarded the defendant 50% of that value, awarded the defendant 50% of the value of the plaintiff’s LVMHF stock, and directed the defendant to pay 70% of the plaintiff’s counsel fees.
 
            The Appellate Division observed that while a court is afforded considerable discretion in determining whether to impute income to a party, a determination to impute income will be rejected where the amount imputed was not supported by the record, or the imputation was an improvident exercise of discretion. Here, the Supreme Court improvidently exercised its discretion by imputing an annual income of $80,000 to the plaintiff when calculating her maintenance award. During this 28–year marriage, notwithstanding her college degree and various certifications, the plaintiff, who was 55 years old at the time of trial, had been a stay at home mother and homemaker for almost 10 years and had never earned more than $19 per hour from employment upon returning to work outside the home, while the defendant was the primary wage earner for the family and earned a substantial income. Moreover, the plaintiff’s business was not a financial success. Based upon the record, there was no evidence that the plaintiff’s past income or demonstrated future earning potential amounted to $80,000 annually. It held that under the facts of this case, the court should have imputed an annual income to the plaintiff in the amount of $35,000 .
 
            The Appellate Division held that Supreme Court improvidently exercised its discretion in awarding maintenance to the plaintiff of only $1,500 per month until she reaches 62 years of age. Considering the relevant factors, an award of taxable maintenance in the sum of $3,500 per month until the earliest of the plaintiff’s attainment of the age at which she becomes eligible for full Social Security retirement benefits, her remarriage, or the death of either party was appropriate. This was a long-term marriage of 28 years, where the plaintiff and the defendant were 55 and 56 years old, respectively, at the time of trial. The defendant was the primary wage earner throughout the marriage, earning well over $200,000 annually at the time of commencement of the action, while the plaintiff had not earned any significant income upon returning to the work force, having been a stay at home mother with the parties’ three children for almost 10 years. The defendant disagreed with the plaintiff’s excessive spending and testified to examples of it. The defendant claimed that the plaintiff did not significantly contribute to the parties’ finances which caused stress during the marriage. However, this was the lifestyle of the parties during their marriage; economic decisions made during their marriage should not be second guessed by the Supreme Court.
 
            The Supreme Court also erred in directing the posttrial valuation of the plaintiff’s business and awarding the defendant 50% of that value. The defendant, as the party seeking an interest in the business, failed to submit evidence as to the value of the business. Therefore, the court should not have directed a posttrial valuation, and should not have awarded the defendant any portion of the value of the plaintiff’s business.
 
 
 
No valid marriage where defendant and his witness were credible, and only written evidence of marriage was ketubah which defendant denied he signed, and testified that  signature in Hebrew could not be his because he did not write in Hebrew.
 
            In Yusupov v Baraev, --- N.Y.S.3d ----, 2021 WL 3378803 (2d Dept., 2021) the plaintiff commenced this action for a divorce and alleged that the parties had married on November 24, 1998, at a Jewish ceremony performed by a rabbi. The defendant moved to dismiss the complaint, arguing that the parties were never married. The Supreme Court held a hearing. At the hearing, the plaintiff testified and presented testimony from the rabbi who performed the ceremony, her mother, and her cousin. Their testimony indicated that the parties were married at a ceremony on November 24, 1998, at the apartment of the plaintiff’s mother, and that the defendant signed, in Hebrew, a religious marriage contract, referred to as a ketubah. There were no photographs of the wedding, and the plaintiff never indicated on her tax returns that she was married. The defendant and his mother each testified that there was no wedding ceremony. The defendant  testified that he never signed the ketubah, and that his purported signature on the ketubah was not made by him because he only wrote in Russian or English. No marriage certificate was issued by any governmental agency, and there was no other document referring to a marriage. Supreme Court granted the defendant’s motion to dismiss the complaint on the ground that there was no valid marriage between the parties. The Appellate Division affirmed. It held that a marriage is solemnized where the parties “solemnly declare in the presence of a clergyman or magistrate and the attending witness or witnesses that they take each other as husband and wife” (Domestic Relations Law § 12). Under New York law, the marriage between parties will be valid, even without a marriage license, in instances where it is solemnized. Pursuant to Domestic Relations Law § 12, “[n]o particular form or ceremony is required when a marriage is solemnized as herein provided by a clergyman or magistrate, but the parties must solemnly declare in the presence of a clergyman or magistrate and the attending witness or witnesses that they take each other as husband and wife”. In every case, at least one witness beside the clergyman or magistrate must be present at the ceremony. The Supreme Court determined that the defendant and his witness were credible, and the only written evidence of a marriage was the ketubah in the plaintiff’s possession, which the defendant denied he ever signed, and further testified that the signature in Hebrew could not be his because he did not write in Hebrew. Based upon the evidence the determination was proper.
 
 
Family Court
 
Documents and body camera footage from related sealed criminal cases are not admissible in Family Court Article 10 proceedings
 
          In  Matter of Joshua F., Kanan O., --- N.Y.S.3d ----, 2021 WL 3359827, 2021 N.Y. Slip Op. 21205 (Fam Ct.,2021) although the written police reports related to the arrest were now sealed and cannot be used at this fact-finding neglect hearing, ACS sought to admit the domestic incident reports (”DIRs”) and body camera footage from this incident, contending that these items were not sealed. The Court, among other Family Courts, had previously held that documents from related sealed criminal cases are not admissible in Family Court Article 10 proceedings pursuant to CPL § 160.50(1). See In re T.P., 51 Misc 3d 738 [Fam Ct 2016] (arrest documents & DIR were sealed & inadmissible though officer’s memo book was not document intended to be sealed under sealing statute; striking testimony was warranted based on officer’s simultaneous review of both memo book and much more detailed documents); In re Carolina K., 55 Misc 3d 352 [Fam Ct 2016] (911 recording sealed); In re Samantha R., 55 Misc 3d 338 [Fam Ct 2016] (holding that documents, DIR and photographs that officer reviewed were legally sealed, photographs were inadmissible, but striking of officer’s testimony was not required because officer had credible independent recollection); Matter of T/R, Fam. Ct. Kings County, May 19, 2016, Barnett, J. Docket nos. NN-22206-9/15(DIRs, photographs, criminal complaint, arrest report, memo book, and Criminal Court temporary order of protection are sealed); Matter of B/L Children, Fam. Ct., Kings County, Feb. 22, 2011, Gruebel, J., Docket nos. NN-30879-80/10(DIRs are sealed); In re J G 2009 WL 7292304 [Fam Ct, Bronx County 2009] (DIR sealed). In Matter of Carolina K., supra and Matter of Diyorhjon K., 65 Misc 3d 788 [Fam Ct 2019], this Court applied the same rationale to 911 recordings sought to be introduced by ACS in those cases and In Matter of Samantha R. and In re T.P., supra, to excluding domestic incident reports when they result in an arrest that is later sealed.
 
            The Court noted that CPL § 160.50(1)(c) states in pertinent part, “all official records or papers relating to the arrest or prosecution including all duplicates and copies thereof, on file with the division of criminal justice services, any court, police agency, or prosecutor’s office shall be sealed and not made available to any person or public or private agency.” CPL § 160.60 states that an arrest terminated in favor of an accused “shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution.” Thus, when a criminal case is dismissed and sealed, ALL documents or other official records relating to that arrest must be sealed as well or the protection applied to these individuals by the sealing statute is rendered meaningless, especially in the age of internet searches where even one unsealed document can be enough to negatively impact the future of the arrested individual. The language of CPL § 160.50(1)(c) is mandatory and unequivocal in precluding the provision of “all official records” to any public agency, the only exceptions being contained in paragraph (d), none of which applied here. Domestic incident reports (”DIRs”), which are required to be completed whenever the police respond to a domestic dispute are clearly “official records relating to the arrest or prosecution on file with the division of criminal justice services, any court, police agency, or prosecutor’s office.” CPL 160.50(1)(c). Family Court held that as to the body camera footage, the plain language of the Criminal Procedure Law mandates that the footage cannot be used when the underlying criminal case is sealed.
 

August 1, 2021

 Appellate Division, Second Department
 
 Respondent responsible for support of non-biological children not seen since 2011 where parties planned jointly for children’s conception, participated jointly in process of conceiving the children, planned jointly for their birth, and planned to raise them together

            In Matter of Scott v Adrat, --- N.Y.S.3d ----, 2021 WL 2944297, 2021 N.Y. Slip Op. 04361 Ileana Adrat and Jasmin Scott entered into a same-sex relationship in November 2008. The parties agreed to conceive and raise children together in December 2008 or January 2009. They began attempting to conceive through artificial insemination. In April 2010, Scott learned that she was pregnant with twins, and the children were born later that year. In April 2011, the parties terminated whatever relationship they had at the time. Adrat last saw the children at a court appearance in May or June 2011 and had not supported the children since that time. Family Court found that Adrat was the non-biological parent of the children, and, responsible for financially support them. The Support Magistrate, inter alia, in effect, directed Adrat to pay child support of $1,727 per month. The Appellate Division affirmed. It found that the credible evidence adduced at the hearing established that the parties planned jointly for the children’s conception, participated jointly in the process of conceiving the children, planned jointly for their birth, and planned to raise them together.  The credible evidence demonstrated that both parties attended appointments with two fertility specialists, Adrat injected the sperm into Scott at one such appointment, Adrat paid for half of the out-of-pocket fertility treatment expenses, Adrat selected the location of the baby shower and distributed the invitations, Adrat paid for most of the baby shower, friends and family members of both parties attended the baby shower, Adrat attended prenatal appointments, Adrat was present for the birth of the children and cut the umbilical cord of at least one of them, Adrat assisted in selecting the name of one of the children, and Adrat purchased items for the children and shared in caring for them. Adrat also held herself out as the children’s mother during Scott’s pregnancy, called Scott her “baby mama,” and told friends and family that she was expecting babies with Scott. On the day of the children’s birth, Adrat signed Scott’s hospital admission documents voluntarily and without hesitation. After their birth, Adrat referred to the children as “my girls.” Accordingly, the Family Court properly found that Adrat was a parent of the children (see Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d at 14). Contrary to Adrat’s contention, it was not error for the Family Court to consider post-conception behavior in determining the existence of a preconception agreement. Also contrary to Adrat’s contention, the fact that the parties broke up in late 2009 did not require a finding that Adrat did not agree to conceive and raise the children together. The parties’ break-up was brief, and after the parties reconciled, Adrat actively took part in the in vitro fertilization process at a new fertility clinic.
  
Agreement regarding testamentary provisions, will be valid and enforceable only if it is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded 
            In Prestigiacomo v Prestigiacomo, 2021 WL 2944415 (2d Dept.,2021) in 1997, Joseph Prestigiacomo, Sr. and Katie Prestigiacomo, who had married in 1987, and who both had children from prior marriages, entered into a postnuptial agreement to delineate the inheritance rights of their respective children. The 1997 agreement provided that any modification of the agreement must be “in writing, witnessed and acknowledged and executed simultaneously by both parties.” The Appellate Division held that an agreement between the parties to a marriage, including an agreement regarding testamentary provisions, will be valid and enforceable only if it is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded (see Domestic Relations Law § 236[B][3]; Galetta v. Galetta, 21 N.Y.3d 186, 191, 969 N.Y.S.2d 826, 991 N.E.2d 684; Matter of Koegel, 160 A.D.3d 11, 21, 70 N.Y.S.3d 540). It also held that the agreement was effectively revoked.

July 14, 2021
Appellate Division, Second Department

Mother had no obligation to provide the father with notice of her expert witness where no CPLR 3101(d)(1)(I) demand served.

        In Matter of Pena v Chadee, --- N.Y.S.3d ----, 2021 WL 2672745 (Mem), 2021 N.Y. Slip Op. 04140 (2d Dept.,2021) the mother was ordered to pay child support to the father. The father commenced a proceeding against the mother alleging a violation of the child support order and the mother commenced a proceeding against the father seeking a downward modification of her child support obligation. The Appellate Division held, inter alia, that the Family Court did not err in permitting the mother’s expert witness to testify at the hearing in the absence of notice to the father. CPLR 3101(d)(1)(I) provides, in pertinent part, “[u]pon request, each party shall identify each person whom the party expects to call as an expert witness at trial”. Here, the father’s demand for discovery that was in effect at the time failed to request any information concerning expert witnesses and, accordingly, the mother had no obligation to provide the father with notice of her expert witness.
 
Renewal judgment must be sought  by commencing separate action, rather than by motion in the original action

In Handakas v Handakas, --- N.Y.S.3d ----, 2021 WL 2816695 (Mem), 2021 N.Y. Slip Op. 04217(2d Dept.,2021) Supreme Court, inter alia, determined that the parties’ marital assets included the marital home valued at $1,105,695.70, $950,000 in marital funds that the plaintiff attempted to secret from the defendant by wire transfers to Greece, $100,082 seized from the plaintiff when he was arrested at the airport while attempting to leave the country, $350,000 that the plaintiff forfeited to the federal government in connection with his criminal conviction, and$60,000 from the sale of a boat. The court determined that the defendant was entitled to 50% of these marital assets, less $310,000 for sums she had already received, for a total distributive award of $972,888.80. After the trial but before an amended judgment of divorce was entered, the Supreme Court, inter alia, granted the defendant’s motion, made by order to show cause dated December 12, 2017, for a renewal judgment in favor of the defendant and against the plaintiff in the principal sum of $359,491.84 for pendente lite arrears. An amended judgment of divorce was entered on April 10, 2018. On the same date, the Supreme Court also entered four money judgments in favor of the defendant and against the plaintiff representing, inter alia, the distributive award to the defendant, in the principal sums of $34,000, $10,000, $497,888.80, and $475,000, respectively. The Appellate Division affirmed the awards. However, it held that the Supreme Court erred in granting the defendant’s motion for a renewal judgment. The defendant was required to seek such relief by commencing a separate action, rather than by motion in the original action, and her failure to do so required denial of her motion for the renewal judgment (see CPLR 5014; Guerra v. Crescent St. Corp., 120 A.D.3d 754, 991 N.Y.S.2d 343).
 

Matter of Bennett v. Jeffreys applies where parent opposes petition of nonparent seeking guardianship.

      In Matter of Madelyn E.P. v Kevin O, 2021 WL 2816167 (2d Dept.,2021) the Appellate Division pointed out that as between a parent and a nonparent, the parent has the superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other like extraordinary circumstances” (Matter of Bennett v. Jeffreys, 40 N.Y.2d 543). It applies this standard where, as here, a parent opposes the petition of a nonparent seeking guardianship.

Appellate Division, Third Department

CPLR 211(e) inapplicable to postjudgment motion to enforce the terms of the separation agreement brought under index number of the original divorce action 

In Sangi v Sangi, --- N.Y.S.3d ----, 2021 WL 2828544, 2021 N.Y. Slip Op. 04270 (3d Dept.,2021) the parties 1992 separation agreement which was incorporated but not merged into a 1995 judgment of divorce. In December 1995, the court converted the obligation into a lump-sum payment, imposing a fine in the amount of $130,694.77. In 2005, the wife filed a motion seeking to reaffirm and recalculate the 1995 order based upon the husband’s additional defaults. In August 2005, Supreme Court granted the application and ordered the husband to pay the sum of $129,893.43 directly to the wife. In July 2018, the wife moved for an order directing the County Clerk to enter a money judgment in the amount of $129,893.43, plus statutory interest from the date of the 2005 order. The husband opposed the motion claiming that the wife’s motion was time-barred. Supreme Court granted the wife’s motion for a money judgment, based on the obligations under the separation agreement. The Appellate Division affirmed. It rejected the argument that the wife’s motion was an attempt to enforce his obligations under the separation agreement and, therefore, not subject to the six-year statute of limitations applicable to contract actions (see CPLR 213[2]) or to the 20–year statute of limitations applicable to actions brought to enforce an order of support (see CPLR 211[e]). A motion to enforce the terms of [a] separation agreement is not an action and thus not subject to the statute of limitations set forth in CPLR 213(2). Meanwhile, CPLR 211(e) provides that “[a]n action or proceeding to enforce any temporary order, permanent order or judgment of any court of competent jurisdiction which awards support, alimony or maintenance, regardless of whether or not arrears have been reduced to a money judgment, must be commenced within [20] years from the date of a default in payment.” Thus, as Supreme Court correctly determined, CPLR 211 governs the timeliness of actions upon a contractual obligation. Inasmuch as the present application was not an action, but rather a postjudgment motion to enforce the terms of the separation agreement brought under the index number of the original divorce action, CPLR 211(e) was inapplicable to, and did not bar the motion.
 
Appellate Division, Fourth Department

Where mother’s decision to relocate without permission was prompted by the father’s violent conduct relocation permitted nunc pro tunc.

In Ferris v Ferris, --- N.Y.S.3d ----, 2021 WL 2883199, 2021 N.Y. Slip Op. 04306 (4th Dept., 2021) the Appellate Division affirmed an order which allowed the mother to relocate with the child nunc pro tunc. A prior order of custody and visitation awarded the mother sole custody of the child with visitation to the father. That order included a provision prohibiting either parent from permanently removing the child from Monroe County without the written consent of the other parent or a court order. Despite that provision, the mother unilaterally relocated to Arizona with the five-year-old child. Approximately one year later, the father discovered the mother’s whereabouts and commenced this proceeding by way of petition seeking custody of the child. The mother filed a cross petition seeking permission to relocate nunc pro tunc. Therein, she asserted that she relocated due to a “continuous and relentless cycle of domestic violence” perpetrated by the father. The Appellate Division found a sound and substantial basis in the record for the determination. In observed that  Courts place considerable weight on the effect of domestic violence on the child, particularly when a continuing pattern of domestic violence perpetrated by the child’s father compels the mother to relocate out of legitimate fear for her own safety, or where the father minimized the past incidents of domestic violence., Where domestic violence is alleged in a petition for custody, “the court must consider the effect of such domestic violence upon the best interests of the child”.  Here, in making its determination, the court appropriately considered the fact that the mother unilaterally removed the child from the jurisdiction, determining that the mother “did not relocate to separate the father from the child, but instead acted in good faith to escape the threat of domestic violence.” Although the court did not countenance the mother’s decision to relocate without permission, “it was the father’s [violent] conduct that prompted [her] move to [Arizona] in the first instance and triggered the resulting disruption of his relationship with his daughter.”

Reduction for extended visitation permitted by FCA  §  413 (1) (f) (9) applies only where the child is not on public assistance.

In  Matter of Livingston County Department of Social Services on Behalf of Davis v Hyde, --- N.Y.S.3d ----, 2021 WL 2885671 (Mem), 2021 N.Y. Slip Op. 04316(4th Dept., 2021) the Appellate Division reversed the order, granted petitioner’s objections, granted the petition, and direct the father to pay child support in the amount of $74 per week retroactive to August 5, 2019. Petitioner commenced a proceeding on behalf of the mother of the child seeking an upward modification of respondent father’s child support obligation. The father and the mother shared legal and physical custody of the child, and the mother received public assistance to help support the child. A prior order directed him to pay $50 per month in child support. The Support Magistrate determined that the father’s support obligation based on his income was $74 per week, and further determined that the amount was unjust, and granted a variance by setting the father’s support obligation at $50 per week. The Appellate Division held that “the CSSA must be applied to all child support orders, regardless of a child’s receipt of public assistance” .The Support Magistrate purported to reduce the father’s obligation pursuant to Family Court Act § 413 (1) (f) (10) because the father made additional expenditures to maintain his house to permit the child to stay there during the time that he stayed with the father. Such a reduction for extended visitation is permitted by section 413 (1) (f) (9), however, and that subdivision of the statute applies only where “the child is not on public assistance”. A determination to grant a downward deviation from the presumptive support obligation on the ground that the noncustodial parent incurred expenses while the child was in his or her care “is merely another way of improperly applying the proportional offset method,’ and the proportional offset method of calculating child support has been explicitly rejected by the Court of Appeals (see Bast v. Rossoff, 91 N.Y.2d 723, 732, 675 N.Y.S.2d 19, 697 N.E.2d 1009 [1998]).


June 30, 2021
  
 Appellate Division, First  Department
 
 In determining  length of the order of protection to impose, court not required to consider the length of time temporary order of protection had been in effect

            In Matter of Sophia M v James M, --- N.Y.S.3d ----, 2021 WL 2545204 (1st Dept.,2021) the Appellate Division held that in determining the length of the order of protection to impose, the court was not required to consider the fact that a temporary order of protection had been in effect for about two years (see Family Court Act § 842; Matter of Sheila N. v. Rudy N., 184 AD3d 514, 514–515 [1st Dept 2020] ).
 
            The Appellate Division also held that  the provision of the order of protection prohibiting him from discussing petitioner or the case with anyone familiar with petitioner did not violate his First Amendment right to freedom of speech. Respondent’s repeatedly sending petitioner emails articulating his unwanted opinions about her, her mother and their family dynamic or making petitioner aware of the emails he sent to several third parties broadcasting those opinions by blind-copying her on those messages was not protected by the First Amendment, because those repeated and unwanted communications served no legitimate purpose.
 
  
Family Court was required to confirm foreign child support order, and dismiss  petition to vacate registration where he failed to establish lack of personal jurisdiction over him by Swiss Court, a defense under Family Court Act § 580–607(a).
 
            In Alava v Caceres, --- N.Y.S.3d ----, 2021 WL 2459350 (Mem), 2021 N.Y. Slip Op. 03903 (1st Dept., 2021) the Appellate Division affirmed an order which dismissed the petition to vacate registration of a foreign child support order. It held that the father failed to meet his burden in proving that the Swiss court, a signatory to UIFSA, failed to establish personal jurisdiction over him, a defense under Family Court Act § 580–607(a). He admitted that he was advised by the Swiss court of the support proceedings pending against him and asked to provide a Swiss contact for further notifications in lieu of service via publication, which he failed to do, even though he was engaged in custody litigation in Switzerland at the time and was represented by counsel in those proceedings. It found hat the Swiss methods of service are consistent with our notions of procedure and due process in that he was given meaningful notice” of the foreign proceeding against him. Since the Swiss court properly exercised personal jurisdiction over the father, Family Court was required to confirm the foreign child support order, and the petition to vacate was properly dismissed.
 
 
Appellate Division, Second Department
 
 
Court may determine which parent is custodial parent based on  reality of the situation. Reality of the situation, despite permitted parental access set forth in stipulation, was that  plaintiff was custodial parent for child support purposes.
 
            In Sexton v Sexton, --- N.Y.S.3d ----, 2021 WL 2558103 (Mem), 2021 N.Y. Slip Op. 04049 (2d Dept.,2021) the plaintiff commenced the action for a divorce  on May 14, 2013. On October 18, 2016, the parties entered into a so-ordered stipulation that awarded the defendant legal custody of all three children and the plaintiff residential custody of all three children. The oldest child was to have parental access with the defendant at a minimum of alternating weekends. The other two children were to have parental access with the defendant on Fridays after school “until after Scouts,” every other weekend from Friday after school until Monday morning, and every Monday after school until Wednesday morning. The stipulation contained a clause that read as follows: “Given the ages of the children, even in light of the above schedule, should the children desire to not exercise the full parenting time, the children’s wishes should and must be respected.”  At trial, the plaintiff testified that only the middle child was following the parental access schedule, while the other two children were not seeing the defendant at all. The plaintiff conceded that the defendant paid for certain expenses for the children. Supreme Court determined that the plaintiff was entitled to child support from the defendant because the plaintiff had residential custody of the children. The court utilized the Child Support Standards Act ( CSSA) calculation to determine that the defendant was responsible for 37.5% of the basic child support obligation, or the sum of $243 per week. However, the court concluded that there was a basis to deviate downward because the defendant readily incurred additional expenses for the children and directed the defendant to pay the sum of $175 per week in basic child support. The Appellate Division held that the Supreme Court correctly determined that the plaintiff was the custodial parent for child support purposes. The ‘custodial parent’ within the meaning of the [CSSA] is the parent who has physical custody of the child for the majority of the time (Matter of Conway v. Gartmond, 144 A.D.3d 795, 796, 41 N.Y.S.3d 90). The court may determine which parent is the custodial parent based on the reality of the situation (Riemersma v. Riemersma, 84 A.D.3d 1474, 1476, 922 N.Y.S.2d 616. Because the stipulation gave great weight to the children’s wishes, and because there was undisputed testimony that two of the three children were not following the parental access schedule, the reality of the situation, despite the permitted parental access as set forth in the stipulation, was that the plaintiff was the custodial parent for child support purposes.
 
 
Even though spouse changed character of the property from separate  to marital by placing title to marital residence in both names, separate property credit not precluded when separate property transmuted into marital property.
      
 
            In Philogene v Philogene, --- N.Y.S.3d ----, 2021 WL 2558027 (Mem), 2021 N.Y. Slip Op. 04045 (2d Dept.,2021) the plaintiff and the defendant were married on August 5, 2005. There were no children of the marriage. The defendant purchased the marital residence in 1993, and transferred the property into both parties’ names in 2006. On or about November 12, 2013, the plaintiff commenced the action for a divorce. Supreme Court, inter alia, awarded the plaintiff  half of the stipulated appreciation in the value of the marital residence, in effect, determining that the defendant was entitled to a separate property credit for her contribution of separate property towards the creation of the marital residence as marital property. The Appellate Division affirmed. It held that Supreme Court providently exercised its discretion in awarding the defendant a credit, equal to the stipulated valuation of the marital residence as of March 2006, for her contribution of separate property towards the creation of marital property Even though the defendant changed the character of the property from separate property to marital property by placing the marital residence in both parties’ names, a separate property credit is not precluded as a matter of law when separate property has been transmuted into marital property.
 
 
Property acquired during marriage is presumed to be marital and party seeking to overcome presumption has burden of proving property in dispute is separate. Self-serving testimony, without more, is insufficient.
 
            In Parkoff v Parkoff, --- N.Y.S.3d ----, 2021 WL 2558022, 2021 N.Y. Slip Op. 04025 (2d Dept.,2021) the parties were married on August 29, 1965, and had one emancipated child. At the time the trial commenced in 2015, both parties were 71 years old. In 1989, the defendant told the plaintiff that she wanted a divorce, and the plaintiff proceeded to unilaterally divide the parties’ bank accounts. However, no divorce action was commenced, and the parties continued to reside together. From that time forward, the plaintiff gave the defendant $1,400 per month to pay for food expenses, dry cleaning, and household expenses. The defendant used funds from her individual accounts for additional household expenses, including her clothing and psychotherapy, for which the plaintiff did not pay, and some of the expenses for the parties’ daughter. On October 23, 2012, after more than 47 years of marriage, the plaintiff commenced the action for a divorce. After the trial, Supreme Court, inter alia, equitably distributed the parties’ marital property equally, determined that the plaintiff’s shares of Verizon and Exxon Mobil stock were not his separate property, valued the parties’ investment accounts as of the commencement date of the action, and failed to award the defendant statutory interest on the funds held in the plaintiff’s investment accounts.
 
            The Appellate Division affirmed. It  held that there was no basis for an unequal distribution of marital assets. Supreme Court properly considered the relevant factors and took into consideration its findings that the defendant was credible, while the plaintiff’s testimony lacked credibility (see Greenberg v. Greenberg, 162 A.D.3d at 873, 81 N.Y.S.3d 58). While the plaintiff contended that the parties’ economic partnership terminated in 2001, mandating an unequal division of the marital assets, there was no merit to this contention. From 2001 until the commencement of the action, the parties continued to reside together, the plaintiff continued to provide the defendant with $1,400 monthly to pay for certain household expenses, the plaintiff continued to prepare and file the parties’ joint tax returns, the defendant prepared dinners for the plaintiff and took care of the household, and the plaintiff accompanied the defendant to two work-related award ceremonies, celebrated holidays with the defendant’s family, and attended some concerts with the defendant. Moreover, the defendant was the primary caretaker for the parties’ daughter and worked for all but approximately four years during this 47–year marriage, during which the parties amassed a substantial marital estate. While the parties maintained separate finances, under these circumstances, the economic decisions made by the parties should not be second-guessed by the court (see Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415, 421, 881 N.Y.S.2d 369, 909 N.E.2d 62; Achuthan v. Achuthan, 179 A.D.3d at 757, 117 N.Y.S.3d 667).
 
            The Appellate Division held that Supreme Court providently exercised its discretion in determining that the plaintiff’s shares of Verizon and Exxon Mobil stock that were acquired during the marriage were marital property. Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property. The plaintiff’s self-serving testimony, without more, was insufficient.
 
 
A finding of parental interference or alienation does not justify applying a per se rule requiring a change of custody, or even a rebuttable presumption that custody should be changed. It constitutes one fact, albeit an important one, in determining the best interests of the child.
 
            In Matter of Brown v Simon, --- N.Y.S.3d ----, 2021 WL 2447400, 2021 N.Y. Slip Op. 03831(2d Dept.,2021) the Appellate Division observed that a child’s preference for a particular parent, while a factor to be considered, cannot be determinative. In weighing a child’s expressed custody preference, “the court must consider the age and maturity of the child and the potential for influence having been exerted on the child. This is particularly true where there is evidence that the child’s feelings were fostered by the custodial parent’s hostility towards the noncustodial parent. The desires of young children, capable of distortive manipulation by a bitter, or perhaps even well-meaning, parent, do not always reflect the long-term best interest of the children.
 
            The record demonstrated that the child’s view of her mother was the result of her father’s negative influence. The child’s relationship with her mother plainly deteriorated during the periods when she was in the father’s custody, and the child has become strongly invested in pleasing solely her father. As the Family Court determined, the record was replete with examples of alienating behavior engaged in by the father. The record indicated that the father discussed these court proceedings with the child, and there was evidence that the child was actually instructed by her father to make false allegations against her older sister. The weight of the evidence established that the father’s numerous unfounded allegations of sexual assault undermined the mother’s attempts to form and maintain a relationship with the child. Given the father’s overt and public hostility towards the mother, it would be surprising indeed if the child was eager after her enforced separation to return to her mother. Under the circumstances, the expressed wishes of the child were, without more, insufficient to warrant the heavy restrictions imposed on the mother’s parental access award. The Family Court’s decision to formally restrict the mother’s legal right of access to supervised parental access with the child lacked a sound and substantial basis in the record. The record demonstrates that it is in the child’s best interest to have liberal, unsupervised parental access with the mother.
 
            The Appellate Division rejected the mother’s argument that Family Court should have awarded her physical custody of the child. It held that a finding of parental interference or alienation does not justify applying a per se rule requiring a change of custody, or even a rebuttable presumption that custody should be changed. Rather, such a finding constitutes one fact, albeit an important one, in determining the best interests of the child. The record supported the mother’s contention that the father had been unable to place the needs of the child before his own need to express anger and hostility toward the mother, and that he was unable to foster a continuing relationship between the mother and the child. However, it agreed with the Family Court that physical custody of the child should nevertheless remain with the father. The record, including the expert evidence, established that it would be traumatic for the child to have the stability of her home life disrupted after so many years by transferring custody to the mother while the child still deeply mistrusts her. The award of joint legal custody to the parties was appropriate under the circumstances of this case
 
 
A person has right to assistance of counsel in any matter before Supreme Court, under circumstances where, if  proceeding was pending in Family Court, the court would be required by FCA §262, to appoint counsel. The standard for effective assistance of counsel is whether, viewed in its totality, there was meaningful representation.
 
            In Winter v Winter, --- N.Y.S.3d ----, 2021 WL 2447437, 2021 N.Y. Slip Op. 03865 (2d Dept.,2021) the Appellate Division reversed an order which held the plaintiff in contempt for wilful violation of a 2013 support order. It held that the plaintiff was denied effective assistance of counsel. Under Judiciary Law § 35(8), a person has the right to the assistance of counsel in any matter before the Supreme Court, under circumstances whereby, if the proceeding was pending in the Family Court, the court would be required, by section 262 of the Family Court Act, to appoint counsel, such as the matter here in which the defendant sought to hold the plaintiff in contempt for wilful violation of the 2013 order and sought his incarceration (see Judiciary Law § 35[8]; Family Ct Act § 262). The standard for effective assistance of counsel in such cases is whether, viewed in its totality, there was meaningful representation. Here, the plaintiff’s attorney failed to present any medical evidence, whether in the form of admissible medical records or testimony of medical witnesses, to support the plaintiff’s defense that his failure to pay child support in accordance with the 2013 order was not wilful, but rather due to his medical condition which rendered him unable to work. The failure of the plaintiff’s attorney to obtain the relevant medical information that may have supported the plaintiff’s defense constituted a failure to meaningfully represent the plaintiff, and the plaintiff was therefore entitled to a new hearing.
 
 
 
In determining a motion to dismiss in a family offense proceeding for failure to establish a prima facie case the evidence must be accepted as true and credibility is irrelevant.

            In Matter of Prince v Ford,  --- N.Y.S.3d ----, 2021 WL 2345917 (Mem), 2021 N.Y. Slip Op. 03591(2d Dept.,2021) the petitioner filed an amended family offense petition against the respondent, her adult son, alleging, inter alia, that on certain dates between 2015 and 2019, the respondent had struck and slapped her, causing her pain and injury, cursed at her, taken her belongings, and collected her mail and her tenants’ rent without her permission. The Family Court held a hearing, and at the close of the petitioner’s case, granted the respondent’s motion to dismiss for failure to establish a prima facie case. The Appellate Division reversed. It held that in a family offense proceeding, the petitioner has the burden of establishing that the charged conduct was committed as alleged in the petition by a fair preponderance of the evidence (Family Ct Act § 832). In determining a motion to dismiss for failure to establish a prima facie case, the evidence must be accepted as true and given the benefit of every reasonable inference which may be drawn therefrom. The question of credibility is irrelevant, and should not be considered. Family Court failed to properly apply this standard. Viewing the petitioner’s evidence in the light most favorable to her, and accepting the evidence as true, it established a prima facie case. It held that respondent’s motion to dismiss the amended petition for failure to establish a prima facie case should have been denied.
 
 
 
Father neglected child where he falsely reported on multiple occasions that mother was sexually abusing child, allegations were made in presence of  child, and he encouraged child to corroborate  false allegations.
 
            In Matter of Isabela P v Jacob P, --- N.Y.S.3d ----, 2021 WL 2345995, 2021 N.Y. Slip Op. 03590 (2d Dept.,2021) the Appellate Division affirmed the Family Court’s determination, made after an evidentiary hearing, that the father neglected the child. The evidence supported the court’s determination that the father falsely reported on multiple occasions in 2015 and 2017 that the mother was sexually abusing the child, that these allegations were made in the presence of the child, and that the father encouraged the child to corroborate these false allegations. The false reports resulted in the child being interviewed by detectives, social workers, and attorneys, and exposed her to the possibility of intrusive physical examinations. The evidence further supported the court’s determination that the father knew the allegations to be false when he made them, and that he intended to continue making false reports of sexual abuse against the mother. Overall, the father’s repeated allegations, which he made in an effort to damage the mother’s relationship with the child, presented an imminent danger of emotional impairment to the child and did not meet the minimum degree of care required of a reasonable and prudent parent.
 
           
Court not required to release child to father after permanency hearing where no showing that he was unfit or other extraordinary circumstances. Determinations following permanency hearing must made in accordance with best interests and safety of  child.
 
            In Matter of Savrina M.A. v Yana A, --- N.Y.S.3d ----, 2021 WL 2345963 (Mem), 2021 N.Y. Slip Op. 03583 (2d Dept.,2021) an  abuse and neglect proceeding, the Appellate Division affirmed a permanency hearing order which, inter alia, continued the child’s placement until the completion of the next permanency hearing or pending further order of the Family Court and approved the continued permanency goal of reunification with parent(s). It rejected the father’s argument that there was no showing that he was unfit or other extraordinary circumstances and the court should have immediately released the child to his care. The Appellate Division observed that at the conclusion of each permanency hearing, Family Court enters an order of disposition, schedules a subsequent hearing, and may also consider whether the permanency goal should be approved or modified (Matter of Jamie J. [Michelle E.C.], 30 N.Y.3d 275, 283). The court may direct that the placement of the child be terminated and the child returned to the parent, place the child in the custody of a fit and willing relative or other suitable person, or continue the placement of the child until the completion of the next permanency hearing. (Family Ct Act § 1089[d]). The court’s determinations following a permanency hearing must made in accordance with the best interests and safety of the child, including whether the child would be at risk of abuse or neglect if returned to the parent. The court must begin by weighing past and continued foster care against discharge to the biological parent (Matter of Michael B., 80 N.Y.2d 299). The fitness of the biological parent must be a primary factor. The court must also consider the agency’s plan for the child, what services have been offered to strengthen and reunite the family, what reasonable efforts have been made to make it possible for the child to return to the natural home, and if return home is not likely, what efforts have been or should be made to evaluate other options. Finally, the court should consider the more intangible elements relating to the emotional well-being of the child, among them the impact on the child of immediate discharge versus an additional period of foster care. The child’s emotional well-being must be part of the equation, parental rights notwithstanding. Great deference is accorded the Family Court, which saw and heard the witnesses, and its findings will not be disturbed unless they lack a substantial basis in the record.
 
 
 
Appellate Division, Third Department
 
 
Not abuse of  discretion to award $20,000 to the wife as wasteful dissipation credit based upon husband’s expenditures for  escort services, exotic massage parlors, hotel and spa expenses. DRL § 236(B)(5)(d) factors do not have to be specifically cited when findings of court adequately articulate  they were considered.
 

            In Ramadan v Ramadan, --- N.Y.S.3d ----, 2021 WL 2367686, 2021 N.Y. Slip Op. 03636(3d Dept.,2021) Plaintiff (wife) and defendant ( husband) were married in February 2010 and had two children (born in 2011 and 2014). In August 2016, the wife commenced the action for divorce. Following trial Supreme Court, granted the wife a divorce, equitably distributed the parties’ marital property, awarded child support to the wife and denied the parties’ respective requests for counsel fees. A judgment of divorce was entered in December 2018. The court thereafter entered a qualified domestic relations order (QDRO).
 
            The Appellate Division rejected he husband’s assertion that reversal was required because Supreme Court’s decision did not reflect that the court considered the factors set forth in Domestic Relations Law § 236(B)(5)(d). The court’s findings revealed that the court considered the trial testimony and documentary evidence, as well as the relevant statutory factors. To the extent that the court did not cite to each factor in its decision, they do not have to be specifically cited when the factual findings of the court otherwise adequately articulate that the relevant statutory factors were considered.
 
            The husband argued that he should have been awarded a credit based upon monies used to pay some of the wife’s separate debts. If marital assets are used to reduce one party’s separate indebtedness, the other spouse can recoup his or her equitable share of the expended marital funds. The Appellate Division held that he was entitled to a credit for marital funds used to pay the wife’s student debt, and a mortgage related to real property which was the wife’s separate property.
 
            The wife testified that she discovered financial records and statements that caused her to conclude that the husband had contacted escort services and went to exotic massage parlors. When confronted about these expenses, his explanations consisted mainly of an inability to recall them. The husband also attempted to justify his hotel and spa expenses as family vacations, needing to get away due to marital difficulties or hosting friends, but Supreme Court apparently did not credit his testimony The Appellate Division held that the court did not abuse its discretion in awarding $20,000 to the wife as a wasteful dissipation credit based upon the husband’s expenditures.
 
 
 
Supreme Court may, either before or after the appeal is resolved, award  appellate counsel fees to enable a spouse to defend an appeal. Court should review financial circumstances of both parties with all other circumstances of the case, which may include the relative merit of the parties’ positions.
 
            In Curley v Curley, --- N.Y.S.3d ----, 2021 WL 2367679, 2021 N.Y. Slip Op. 03638 (3d Dept.,2021) in 2013, plaintiff (wife) obtained a judgment of divorce against defendant (husband). The husband appealed (first appeal), and the Court reversed, in part, and remitted the matter for further proceedings. While the first appeal was pending, the husband moved, inter alai,  to restrain the distribution of funds held in escrow from the sale of the marital residence contending that the wife fraudulently withdrew funds from that account. The wife argued that the motion  was frivolous, and cross-moved for sanctions. Supreme Court  denied the motion, finding it to be frivolous, and, as a sanction, granted the wife counsel fees. The husband appealed and the Court affirmed. In September 2015, the wife moved for an order, inter alia, directing him to pay for  storage and disposal of personal property. Supreme Court granted the motion, and the husband appealed. The Court affirmed. After the husbands second appeal had been decided and while his third appeal was pending, the wife moved for counsel fees incurred in defending the second and third appeals. The husband opposed the motion and cross-moved for counsel fees. Supreme Court granted the wife’s motion, denied the husband’s cross motion and determined to impose a sanction upon the husband for bringing his cross motion for counsel fees. Following a hearing, Supreme Court awarded the wife $21,450 in counsel fees and disbursements associated with defending the second and third appeals and related motion practice and imposed a $1,500 sanction upon the husband.
 
            The Appellate Division affirmed. It held that Supreme Court may, either before or after the appeal is resolved, award  appellate counsel fees to enable a spouse to defend an appeal. In exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties’ positions.” The order appealed from reflected that Supreme Court largely based its award of counsel fees to the wife upon its assessment that the appeals were frivolous and wholly without merit, an assessment that was supported by the record. The order also reflected that Supreme Court properly considered the parties’ respective financial circumstances, including the amount of legal services billed in connection with the appeals and related motion practice, and reasonably concluded that the parties’ relative net worth’s supported an award of counsel fees to the wife. Although the husband did not challenge the amount of counsel fees awarded, the record demonstrated that, in crafting its award, Supreme Court thoroughly and carefully examined the billing records and testimony received from the wife’s attorney. It discerned no abuse of discretion in Supreme Court’s determination.
 
 
 
Appellate Division, Fourth Department
 
 
Akin to abatement rule that applies in divorce action,  support action, including any related claim for attorneys’ fees,  abates upon decedent’s death
 
            In Bomer v Dean, --- N.Y.S.3d ----, 2021 WL 2471033, 2021 N.Y. Slip Op. 03937(4th Dept.,2021) the Appellate Division agreed with defendant that, under the circumstances of this case, a 2014 support action and a 2016 divorce action abated upon decedent’s death, precluding the court from taking any further measures in either action. It is well settled that a divorce action abates upon the death of either party to the action because the marital relationship ceases to exist at that time (see Cornell v. Cornell, 7 N.Y.2d 164 [1959]. When abatement occurs, the court lacks jurisdiction to act. The abatement rule also typically applies to ancillary issues, such as maintenance and attorneys’ fees sought in a divorce action, which are “necessarily dependent on the existence of a divorce action” and, with respect to those issues, applies regardless of which spouse, payee or payor, has died. There are, however, some exceptions to the rule that divorce actions abate upon the death of a party. Specifically, courts have recognized that abatement does not occur when a party’s rights have vested prior to the death or when all that remains to be done in the action following a party’s death is for the court to effectuate a ministerial act. Here, neither exception applied with respect to the 2016 divorce action inasmuch as decedent had not acquired any vested rights with respect to maintenance or attorneys’ fees, nor were only ministerial acts remaining in that action.
 
            The Appellate Division concluded that the 2014 support action, including any related claim for attorneys’ fees, also abated upon decedent’s death and should have been dismissed. Akin to the abatement rule that applies in the context of a divorce action, it noted that any order of support terminates upon the death of either party (see Family Ct Act § 412 [10] [d]). Inasmuch as no order of support was ever entered on decedent’s behalf with respect to the 2014 support action, it concluded that decedent did not acquire any vested rights to spousal support or any other ancillary relief in that action prior to her death, and therefore that action fully abated upon decedent’s death.
 
           
 
 Failure to include transcripts and relevant papers related to ruling in record on appeal precludes review by Appellate Division
 
            In Lapoint v Claypoole, --- N.Y.S.3d ----, 2021 WL 2471012 (Mem), 2021 N.Y. Slip Op. 03947(4th Dept.,2021) the Appellate Division rejected defendant’s contention that the court erred in failing to award him credits for certain carrying costs and expenses relating to the repair and sale of the marital home. To the extent that defendant challenged the court’s ruling that documentary evidence regarding those expenses was inadmissible, defendant failed to include the transcripts and relevant papers related to that ruling in the record on appeal, and therefore he, as the appellant, must suffer the consequences of having submitted an incomplete record.
           
 
 
 AFC properly  informed court of child’s wishes and advocate for a result different from the child’s position where mother’s persistent and pervasive pattern of alienating  child from father was likely to result in a substantial risk of imminent, serious harm to the child. 
 
 
            In Matter of Vega v Delgado, --- N.Y.S.3d ----, 2021 WL 2471097 (Mem), 2021 N.Y. Slip Op. 03956 (4th Dept., 2021) the Appellate Division affirmed an order which awarded sole custody and primary physical residency of the child born in 2009 to respondent father, with visitation to the mother. It held that contrary to the mother’s contention, the Attorney for the Child (AFC) did not improperly substitute her judgment for that of the child by advocating a position that was contrary to the child’s express wishes. An AFC must zealously advocate the child’s position (22 NYCRR 7.2 [d]) and, if the child is capable of knowing, voluntary and consider] believes that what the child wants is not in the child’s best interests (22 NYCRR 7.2 [d] [2]; see Matter of Viscuso v. Viscuso, 129 A.D.3d 1679, 1680, 12 N.Y.S.3d 684 [4th Dept. 2015]). Where, however, the AFC is convinced 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, the AFC is justified in advocating a position that is contrary to the child’s wishes” (22 NYCRR 7.2 [d] [3]). The record supported the determination that the mother’s persistent and pervasive pattern of alienating the child from the father was likely to result in a substantial risk of imminent, serious harm to the child. It concluded that the AFC acted in accordance with her ethical duties by informing the court of the child’s wishes and then advocating for a result different from the child’s position.
 
 
 
Supreme Court
 
Notary’s completion of the certificate of acknowledgment to separation agreement within 4 days of execution was sufficiently timely so as to be legally valid under Executive Order No. 202.7.
 
            In Ryerson v Ryerson, --- N.Y.S.3d ----, 2021 WL 2656884, 2021 N.Y. Slip Op. 21172 (Sup Ct, 2021) Supreme Court denied defendants motions to declare a March 29, 2020 separation agreement between the parties to be null and void for lack of a proper acknowledgment. The parties engaged McCoskery, who was a notary,  to act as a mediator in assisting them in resolving matters attendant to their divorce. McCoskery prepared a separation agreement and emailed it to both parties for their review. Because the Governor had declared a state of emergency on March 7, 2020 and authorized the provision of notarial services by audio-video technology in Executive Order No. 202.7, McCoskery and the parties arranged for the separation agreement to be executed by them under his supervision via Zoom video conferencing and McCoskery would complete the acknowledgment of their signatures in accordance with Executive Order No. 202.7. The defendant contended that the signed agreement had to be electronically sent to McCoskery on the day the parties signed it in order for the acknowledgment to be legally valid under Executive Order No. 202.7. According to that Order, once the agreement was signed during the video conference a legible copy of the signed agreement was to be “transmit[ted] by fax or electronic means . . .directly to the Notary on the same date it was signed.” Here, because the agreement was mailed on the date it was signed and McCoskery completed the acknowledgment on a different date, the defendant asserted that the entire agreement must be declared legally invalid. Supreme Court held that McCoskery’s completion of the certificate of acknowledgment to the separation agreement within four days of the parties’ execution of that agreement was sufficiently timely so as to be legally valid and the agreement was not rendered invalid or void by that lapse of time.
 
 
When  Judge acts as a fact finder Judiciary Law § 21 precludes a successor Judge from continuing a hearing or trial or rendering a determination on the issues involved when the testimony of these witnesses was only heard by the initial Judge
 
            In Gary G., v. Elena A.G., 2021 WL 2546596 (Sup Ct., 2021) the action was commenced in 2015 and during the trial the Court recused herself from the case and in  2019, the case was transferred Queens County to this Justice in his capacity as the Statewide Coordinating Judge for Matrimonial Cases. Supreme Court observed that Judiciary Law § 21 provides that, except in appellate courts, a Judge “shall not decide or take part in the decision of a question which was argued orally in the court, when he was not present and sitting therein as a judge.” In interpreting this provision, the Court of Appeals and Appellate Divisions of the First and Second Department have ruled that the statute does not preclude a successor Judge from determining a motion argued before another Judge so long as purely legal questions are involved (People v Hampton, 85 AD3d 1055, 1056 [2011], affd 21 NY3d 277 [2013]; Plunkett v Emergency Med. Serv. of NY City, 234 AD2d 162, 163 [1996]). Similarly, Judiciary Law § 21 “does not prevent the substitution of a Judge in a jury trial since the ultimate determination of guilt or innocence belongs to the jury and not the Trial Judge” (People v Thompson, 90 NY2d 615, 621 [1997]). However, it necessary follows from these rulings that when a Judge acts as a fact finder and is required to weigh the credibility of witnesses, Judiciary Law § 21 precludes a successor Judge from continuing a hearing or trial or rendering a determination on the issues involved when the testimony of these witnesses was only heard by the initial Judge (People v Massey, 191 AD3d 1488 [2021]; People v Banks, 152 AD3d 816, 818 [2017]; Matter of Connelly-Logal v West, 272, AD2d 920 [2000]; Matter of Fellows v Fellows, 25 AD2d 865 [1966]). In such cases, a new hearing or trial before the successor Judge is required.  Here, the issues before the Court during the hearing that she presided over were not purely legal in nature. The Court was acting as a fact finder and was required to weigh the credibility of the witnesses who testified before her. Under the circumstances, the court was precluded by Judiciary Law § 21 from taking judicial notice of the prior testimony before and continuing on with the hearing. Instead, a de novo hearing had to be conducted before this court.

Recent Decisions June 2, 2021

 

Appellate Division, Second Department

 

 

Party claiming an investment account was actively managed has the burden of proof with respect to the claim.  Expenses of leisure, extracurricular and enrichment activities are encompassed within the basic child support award. A court can order a parent to pay these expenses over and above basic child support, but it is a deviation from the basic statutory formula and requires an analysis under the factors set forth in Domestic Relations Law § 240(1–b)(f).

            In Sinnott v Sinnott, --- N.Y.S.3d ----, 2021 WL 1901679, 2021 N.Y. Slip Op. 03073 (2d Dept,2021) the parties were married in 1989, and were the parents of one child born in 2003, as well as two emancipated children. The plaintiff commenced this action on February 16, 2016, by filing a summons and complaint. Pursuant to a so-ordered custody and parenting stipulation, the plaintiff had sole legal and residential custody of the child. The defendant appealed from so much of the judgment as denied him a separate property credit of $937,000, (2) directed him to pay child support and add-on expenses until the child reached the age of 22 years and six months under stated circumstances, (3) directed him to pay 80% of the child’s private high school tuition, fees, books, supplies, materials, class trips, enrichment activities, and all school-related expenses, and (4) directed that certain investment accounts be equally divided between the parties without specifying a date of valuation for those accounts or limiting distribution only to marital property. The plaintiff cross-appealed from so much of the judgment as (1) directed the defendant to pay child support of only $4,281.44 per month and only 80% of add-on expenses for the child, (2) declined to make the award of maintenance and child support retroactive to the date of commencement of the action, (3) declined to direct the defendant to pay the cost of health insurance for the plaintiff, and (4) declined to direct the defendant to obtain or maintain life insurance in an amount sufficient to secure his support obligations.

 

            The defendant contended on appeal that the Supreme Court erred by failing to direct that the plaintiff’s investment accounts should be valued as of the date of commencement of the action, and that only marital property in those accounts should be subject to equitable distribution. The valuation date of a marital asset may be set “anytime from the date of commencement of the action to the date of trial. The court failed to set forth the valuation date for the investment accounts . The party claiming that an account was actively managed, or contained separate property not subject to equitable distribution, has the burden of proof with respect to those claims. The defendant failed to provide evidence as to whether the accounts in question were actively managed or passive. The Supreme Court therefore did not improvidently exercise its discretion in treating those accounts, in effect, as passive accounts, by its direction that the accounts be liquidated within 30 days from the entry of the decision after trial and that the resulting proceeds be divided 50–50. However, since assets must be valued at a date not earlier than an action’s commencement nor later than the trial it modified modify the judgment to the extent of directing that the accounts be valued as of August 28, 2018, the first date of trial.

 

            The Appellate Division held that the Supreme Court made numerous errors when calculating the defendant’s basic child support obligation under the Child Support Standards Act (CSSA). Supreme Court incorrectly calculated his gross income for 2017. The defendant’s gross (total) income as should have been ... reported in the most recent federal income tax return was $1,037,044, and, the defendant’s gross income for CSSA purposes was $1,061,044.25. The defendant’s income for CSSA purposes was $975,399.57. The plaintiff’s income for CSSA purposes was $78,000 per year. The defendant’s share of the basic annual support obligation was 92.6% of $25,160 or the annual sum of $23,298.16. It modified the judgment of divorce to direct the defendant to pay the plaintiff $4,591.42 per month in basic child support.

 

            Regarding the add-on for uncovered, unreimbursed medical and related expenses, responsibility for future reasonable unreimbursed health care expenses shall be prorated in the same proportion or percentage as each parent’s income bears to the combined parental income. It modified the judgment of divorce to provide that the defendant’s pro rata share of the child’s uncovered, unreimbursed medical and related expenses was 92.6%, the same proportion as his income was to the combined parental income

 

            The Appellate Division noted that education expenses are not directly connected to the basic child support calculation” and are not necessarily prorated in the same proportion or percentage as each parent’s income bears to the combined parental income. Supreme Court did not improvidently exercise its discretion by directing the defendant to pay 80% of the child’s tuition at Marymount High School of New York, or a similar private high school, nor by requiring the defendant to pay 80% of the child’s fees, books, supplies, and materials.

 

            The Appellate Division held that Supreme Court improvidently exercised its discretion by directing the defendant to pay 80% of the child’s class trips, enrichment activities, and all other school related expenses. Basic child support, when calculated properly, is presumed to meet all the child’s basic needs. Thus, the expenses of leisure, extracurricular and enrichment activities, such as after-school clubs, sporting activities, etc., are usually not awarded separately, but are encompassed within the basic child support award. A court can order a parent to pay these expenses over and above basic child support. However, if it does so, it is a deviation from the basic statutory formula and requires an analysis under the factors set forth in Domestic Relations Law § 240(1–b)(f). Although all the factors do not have to present, the court needs to articulate its reasons for making such a deviation from basic child support and relate those reasons to the statutory paragraph (f) factors. Here, the Supreme Court did not provide a benchmark for what class trips, enrichment activities, and all other school related expenses could include and there was no cap on the total cost. In any event, under the circumstances of this case, it found that the award of basic child support was sufficient to meet these needs.

 

            The Appellate Division held that  Supreme Court improperly defendant to pay basic child-support and add-on expenses for the child after she reaches the age of 21. A parent has no legal obligation to provide for or contribute to the support of a child over the age of 21.

 

            The Appellate Division held that Supreme Court should not have directed the defendant to pay maintenance and child support commencing on the first day of the first month following its decision after trial. A party’s maintenance and child support obligations commence, and are retroactive to, the date the applications for maintenance and child support were first made, which, in this case, was February 16, 2016. However, the party is also entitled to a credit for any amount of temporary maintenance and child support already paid. Here, the defendant may be entitled to credit for voluntary child support payments which were made prior to a pendente lite order dated August 16, 2017, and for voluntary maintenance payments made during the pendency of the action. In addition, he was entitled to a credit for any amount of temporary maintenance and child support which was paid pursuant to the pendente lite order. It remitted the matter to the Supreme Court, for a determination as to the amount of retroactive child support, including add-ons, and maintenance arrears from February 16, 2016, giving the defendant appropriate credits

 

            The Appellate Division held that under the circumstances of this case, the Supreme Court should have directed the defendant to pay the plaintiff’s health insurance costs during the period the defendant is obligated to pay maintenance, and should have directed the defendant to obtain or maintain a policy of life insurance for the benefit of the plaintiff and the child in an amount sufficient to secure his maintenance, child support, and health insurance obligations.

 

 

 

Under UIFSA Florida retained exclusive jurisdiction over his child support obligation to the daughter, where mother died, and father remained in Florida although daughter moved to New York and under Florida law, his obligation to support the daughter ceased when she turned 18

 

            In Matter of Nassau County Department of Social Services v Ablog, 2021 WL 1899886 (2d Dept.,2021) pursuant to a 2009 Florida judgment of divorce, the father was obligated to pay child support for the daughter “until the child attains the age of eighteen years or graduates from high school, as long as the child is progressing in school and will graduate before attaining the age of nineteen years.” The daughter resided with her mother following the judgment of divorce until February 2018, when the mother died and the father became the custodial parent. The daughter turned 18 years of age in September 2018. She moved to New York in 2019. The father continued to reside in Florida. The daughter applied for and began receiving public assistance in Nassau County. In July 2019, the Nassau County Department of Social Services filed a petition for support on behalf of the daughter. The father moved to dismiss the petition for lack of subject matter jurisdiction pursuant to the Uniform Interstate Family Support Act (UIFSA), arguing that Florida retained exclusive jurisdiction over his child support obligation to the daughter, and that under Florida law, his obligation to support the daughter ceased when she turned 18. The Support Magistrate denied the motion, finding that the subject application was not seeking to modify the father’s existing child support obligation in Florida, but, instead, was a de novo application for support. The Appellate Division reversed. It held that under the [Full Faith and Credit for Child Support Orders Act] and UIFSA, the state issuing a child support order retains continuing, exclusive jurisdiction over its child support orders so long as an individual contestant continues to reside in the issuing state” (Matter of Spencer v. Spencer, 10 N.Y.3d 60, 66, 853 N.Y.S.2d 274; see 28 USC § 1738B[d]; cf. Family Ct Act § 580–205). Accordingly, a state may modify the issuing state’s order of child support only when the issuing state has lost continuing, exclusive jurisdiction. The federal statute defines a “modification” to mean “a change in a child support order that affects the amount, scope, or duration of the order and modifies, replaces, supersedes, or otherwise is made subsequent to the child support order” (28 USC § 1738B[b][8]). Under the plain language of the federal statute, the New York order of support was a “modification” of the Florida judgment. Since the father still resided in Florida, that state had continuing, exclusive jurisdiction of the child support order, despite the termination of his obligations under that order, and New York did  not have subject matter jurisdiction to modify that order.

 

 

 

There is a rebuttable presumption that interim counsel fees shall be awarded to less monied spouse, and courts should normally grant a request made by the nonmonied spouse, in the absence of good cause to deny the request 

 

            In Tomassetti v Tomassetti, --- N.Y.S.3d ----, 2021 WL 1897796 (Mem), 2021 N.Y. Slip Op. 03075 (2d Dept.,2021) the plaintiff commenced an action for a divorce against the defendant in 2017. In April 2018, the Supreme Court awarded the plaintiff interim counsel fees of $200,000. In August 2018, the plaintiff filed a motion seeking additional interim counsel fees of $376,524. The court granted the plaintiff’s motion to the extent of directing the defendant to pay$165,000 to the plaintiff’s counsel. The Appellate Division observed that there is a rebuttable presumption that interim counsel fees shall be awarded to the less monied spouse, and courts should normally exercise their discretion to grant such a request made by the nonmonied spouse, in the absence of good cause to deny the request. It found that the significant disparity between the financial circumstances of the defendant, a real estate investor and developer with considerable disposable income and a net worth approaching $200 million, and those of the plaintiff could not seriously be disputed. It held that, the Supreme Court improvidently exercised its discretion in limiting, without good cause, the plaintiff’s award of additional interim counsel fees to $165,000, which was far less than the amount of legal fees the plaintiff had already incurred. It found that an award of additional interim counsel fees of $370,000 was appropriate.

 

 

Supreme Court

 

 

Contract for Preservations and Disposition of Embryos not violative of Domestic Relations Law §236(B)(3)

 

            In K.G., v. J.G.,--- N.Y.S.3d ----, 2021 WL 2021873, 2021 N.Y. Slip Op. 21140 (Sup Ct, 2021)  an action for a divorce, the plaintiff  moved for declaratory judgment regarding her rights under a contract with her husband and Reproductive Medical Associates of New York (“RMA”) containing an agreement entitled “Consent for Cryopreservation of Embryo(s) by Couples with Joint Custody.” Plaintiff argued that pursuant to this specific contract, she had the right to dispositional control of the embryos created by RMA with the parties’ genetic material. Defendant  cross moved for summary judgment, arguing that the contract was unenforceable. The Consent agreement provided for of the embryos, and the procedures for using the embryos or for transferring the embryos should the parties wish another facility to preserve them. The contract  was made with RMA’s pre-printed forms and was signed by the plaintiff and the defendant, but was not notarized or subscribed and acknowledged in the form required for a deed to be recorded. Supreme Court held that Domestic Relations Law §236(B)(3) which requires agreements between married couples to be subscribed and acknowledged in the form required for a deed to be recorded, was not applicable to this contract which included services from and benefits to a third party. The Court of Appeals in Kass v. Kass, 91 N.Y.2d 554, 673 N.Y.S.2d 350, 696 N.E.2d 174 (1998) unequivocally stated that “agreements between progenitors, or gamete donors, regarding disposition of their pre-zygotes should generally be presumed valid and binding and enforced in any dispute between them.” Furthermore, IVF contracts such as this one are not violative of public policy and are specifically encouraged by the Kass decision. Plaintiff’s motion to declare that the post-marital dispositional election in the Consent agreement executed on May 18, 2016 was enforceable was  granted; the defendant’s cross motion was denied.

Recent Decisions May 18, 2021

 May 16, 2021

Appellate Division, Second Department

Supreme Court had authority to modify child support under DRL § 236[B][9][b][2][i] upon showing substantial change in circumstances despite provision of agreement restricting modifications of child support

In Park v Park, --- N.Y.S.3d ----, 2021 WL 1653674, 2021 N.Y. Slip Op. 02536 (2d Dept., 2021) the parties were married in June 2000, and had two children, born in 2002 and 2008. On November 14, 2014, the parties entered into a stipulation of settlement in which they agreed to share joint legal custody of the children, with the plaintiff having primary residential custody. In an agreement dated March 24, 2016, the parties agreed that the defendant would pay maintenance to the plaintiff for a period of 18 months, and the defendant would also pay child support. A judgment of divorce dated September 16, 2016, incorporated but did not merge the stipulation of settlement and the maintenance and support agreement. The Appellate Division held, inter alia, that Supreme Court had the authority to modify the parties’ child support obligations upon a showing of a substantial change in circumstances despite the provision of the maintenance and support agreement restricting modifications of the child support obligation during the first 18 months following the parties’ divorce (citing Domestic Relations Law § 236[B][9][b][2][i]; Bishop v. Bishop, 170 A.D.3d 642, 644, 95 N.Y.S.3d 317) 

Comment:  

Domestic Relations Law § 236[B][9][b][2][i] provides, in part:  The court may modify an order of child support, including an order incorporating without merging an agreement or stipulation of the parties, upon a showing of a substantial change in circumstances. 

In Bishop v. Bishop, 170 A.D.3d 642, 644, 95 N.Y.S.3d 317 (2d Dept.,2019) the parties' stipulation of settlement, which set forth the plaintiff's child support obligation, was executed after the effective date of the 2010 amendments to Domestic Relations Law § 236 (B) and Family Court Act § 451. Since the parties' stipulation of settlement post-dated the 2010 amendments, the defendant was not required to demonstrate a substantial and unanticipated change in circumstances resulting in a concomitant need, or that the stipulation of settlement was not fair and equitable when entered into, to establish her entitlement to an upward modification of the plaintiff's child support obligation. Additionally, the parties specifically opted out of those provisions of the Domestic Relations Law which allow for modification when “three years have passed since the order was entered, last modified or adjusted” or “there has been a change in either party's gross income by fifteen percent or more since the order was entered, last modified, or adjusted” (Domestic Relations Law § 236 [B] [9] [b] [2] [ii] [A], [B]). Thus, in order to establish her entitlement to an upward modification of the plaintiff's child support obligation, the defendant had the burden of establishing “a substantial change in circumstances” (Domestic Relations Law § 236 [B] [9] [b] [2] [i]; Family Ct Act § 451 [3] [a]). A substantial change in circumstances may be measured by comparing the parties' financial situation at the time of the application for modification with that existing at the time the order or judgment sought to be modified was issued. 

Where habeas corpus proceeding is brought pursuant to DRL§ 70, and children resided outside of this State, reference must be made to the UCCJEA to determine if this state has “home state” jurisdiction 

  In Matter of Kassim v Al-Maliki, --- N.Y.S.3d ----, 2021 WL 1774145 (Mem), 2021 N.Y. Slip Op. 02800 (2d Dept.,2021) the parties lived with their children in New York until approximately the spring of 2016, when they traveled together to Yemen. The mother alleged that the family traveled to Yemen for the Ramadan and Eid holidays with the intention of returning to New York at the end of the holidays. The father alleged that the parties jointly agreed to relocate the family to Yemen. According to the mother, after the family arrived in Yemen, the father confiscated the passports of the mother and the children, such that they could not return to New York. The mother alleged that she was not able to return to the United States until 2019, after she signed a divorce agreement in the presence of the father and several other men, all of whom were carrying weapons, including firearms and traditional swords. In exchange for signing the agreement, the father returned the mother’s passport to her. The mother returned to New York in 2019 and commenced a proceeding, seeking a writ of habeas corpus to compel the father to produce the children before the Family Court and custody of the children. On October 9, 2019, the court directed the father, who was in New York at the time, to return the children to the court’s jurisdiction, to surrender his passport, and to remain in the court’s jurisdiction. The father moved to dismiss the petition for lack of subject matter jurisdiction. Subsequently, the father returned to Yemen, and the mother moved to hold the father in civil and criminal contempt and to issue a warrant for the father’s arrest and to compel his appearance in court. The court, without a hearing, granted the father’s motion, dismissed the petition, and denied the mother’s motion, based on its finding that it lacked subject matter jurisdiction over the proceeding. The Appellate Division noted that pursuant to Domestic Relations Law § 70, “[w]here a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court, on due consideration, may award ... custody of such child to either parent.” Since the children resided outside of this State, reference must necessarily be made to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which provides, inter alia, that “a court of this state has jurisdiction to make an initial child custody determination only if: (a) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state” (Domestic Relations Law § 76[1][a]). The UCCJEA defines “home state” as “the state in which a child lived with a parent ... for at least six consecutive months immediately before the commencement of a child custody proceeding” (Domestic Relations Law § 75–a [7]). It found that the Family Court was required to hold a hearing as to the issue of whether New York or Yemen was the children’s home state, as there were disputed issues of fact regarding the circumstances under which the parties moved with the children from New York to Yemen. The court erred in concluding that it lacked subject matter jurisdiction to determine the mother’s petition without conducting a hearing. The petition was reinstated and the matter was remitted to the Family Court, for a hearing and new determination.

At dispositional stage of a proceeding to terminate parental rights, Family Court must make its determination based solely on the best interests of the child. The court has to either dismiss the petition, suspend judgment for up to one year, or terminate parental rights

In Matter of Grace G, --- N.Y.S.3d ----, 2021 WL 1774163, 2021 N.Y. Slip Op. 02795(2d Dept.,2021) a proceeding pursuant to Social Services Law § 384–b to terminate parental rights, the mother appealed from an order which upon a finding that the mother had permanently neglected the child, terminated the mother’s parental rights. The Appellate Division reversed and remitted for entry of a suspended judgment. It observed that at the dispositional stage of a proceeding to terminate parental rights, the Family Court must make its determination based solely on the best interests of the child (see Family Ct Act § 631). Depending on the best interests of the child, the court has to either dismiss the petition, suspend judgment for up to one year, or terminate parental rights (see Family Ct Act §§ 631, 633[b]; Social Services Law § 384–b[8][f]). A dispositional order suspending judgment provides a brief grace period to give a parent found to have permanently neglected a child a second chance to prepare for reunification with the child (see Family Ct Act § 633; Matter of Michael B., 80 N.Y.2d 299, 311, 590 N.Y.S.2d 60). Here, the Family Court’s determination to terminate the mother’s parental rights rather than to enter a suspended judgment was not in the child’s best interests. Although the child had been in foster care for several years, it was undisputed that the mother engaged in regular phone conversations with the child at least once a week; that, since March 2019, following a difficult pregnancy with her younger child which impeded her ability to travel from her apartment in upper Manhattan to the agency in Jamaica, Queens, where visitation occurred, she had been regularly visiting the child; that the child continued to refer to the mother as her mother and her foster parent as her auntie; and that there was a strong bond between the mother and the child and between the child and the mother’s younger child, who resided with the mother. In addition, the mother had completed a drug treatment program and was drug free, attended a parenting class with intentions to attend additional classes, underwent a mental health evaluation, and was receiving therapy and preventive services. Further, following the child’s placement in foster care, the mother, who, at the time that she gave birth to the child, was 20 years old and living in a group home, having entered foster care herself at the age of 17, obtained an associate’s degree and secured an apartment. Moreover, in a related derivative neglect proceeding filed with respect to the mother’s younger child, the mother was granted a suspended judgment which expired in July 2020. Consequently, under these circumstances, after the dispositional hearing, the court should have entered an order of disposition suspending judgment as requested by the mother and the attorney for the child, since the record demonstrated that such a disposition would have been in the child’s best interests.

Appellate Division, Third Department

Eight-year-old victim could testify as a sworn witness in juvenile delinquency proceeding despite preliminary questioning indicating his lack of knowledge of an oath where subsequent questioning established he understood difference between the truth and lie.

In Matter of Alexander CC, 191 A.D.3d 1113, 142 N.Y.S.3d 223, 2021 N.Y. Slip Op. 01101 (3d Dept.,2021) a juvenile delinquency proceeding, the Appellate Division held that the eight-year-old victim could testify as a sworn witness despite preliminary questioning indicating his lack of knowledge of an oath. Pursuant to Family Ct Act § 343.1, “[a] witness less than nine years old may not testify under oath unless the court is satisfied that he or she understands the nature of an oath” (Family Ct Act § 343.1[2]). Although preliminary questioning of the victim indicated that he did not know what an oath is, this fact was not determinative particularly where, as here, subsequent questioning of the victim by petitioner and Family Court established that he understood the difference between the truth and lie, understood that he was required to testify truthfully at the fact-finding hearing and promised that he would so testify. The victim also evinced an understanding that, if he were to tell a lie, he could “get in trouble” and be punished by the court.

Literal compliance with terms of the suspended judgment will not suffice to prevent finding a violation. Must also show progress has been made to overcome specific problems which led to the removal. 

In Matter of Nahlaya MM., 2021 WL 1673597 (3d Dept.,2021) the Appellate Division affirmed an order pursuant to Social Services Law § 384–b, which granted petitioner’s motions to revoke a suspended judgment, and terminated respondent’s parental rights. It held that a suspended judgment is intended to provide a parent who has permanently neglected his or her children with a brief period within which to become a fit parent so that the children can be returned to him or her in safety. A parent’s noncompliance with the terms of the suspended judgment during this grace period, if established by a preponderance of the evidence, may end with revocation of the suspended judgment and termination of his or her parental rights. Literal compliance with the terms of the suspended judgment will not suffice to prevent a finding of a violation. A parent must also show that progress has been made to overcome the specific problems which led to the removal of the children. While a parent’s failure to comply with the conditions of a suspended judgment does not automatically compel termination of parental rights, that noncompliance constitutes strong evidence that termination is, in fact, in the best interests of the child.

Although father’s modification petition not technically a relocation application as he was not primary custodian “the practical effect of granting his request would be the relocation of the child, relocation must be considered within that framework

In Matter of Jelani PP v Melissa QQ, --- N.Y.S.3d ----, 2021 WL 1675714, 2021 N.Y. Slip Op. 02577(3d Dept.,2021) Petitioner (father) resided in Florida. Pursuant to a July 2016 custody order, entered on consent, Family Court granted the parents joint legal custody of the child, the mother primary physical custody of the child and the father specified parenting time. In July 2018, the father commenced a custody modification proceeding seeking primary physical custody of the child, alleging that the mother failed to, among other things, adequately provide for the child’s educational well-being. Following a fact-finding hearing, Family Court continued the award of joint legal custody, with the mother maintaining primary physical placement of the child, but modified the order to provide for, among other things, expanded parenting time for the father during the child’s summer vacation. The Appellate Division affirmed. Initially, it noted that, despite being treated as such by Family Court, the father’s modification petition was not technically a relocation application inasmuch as he was not the primary custodian of the child pursuant to the July 2016 custody order. However, inasmuch as “the practical effect of granting the father’s request for modification of custody would be the relocation of the child relocation must be considered within that framework. Therefore, the father was required to demonstrate a change in circumstances, which would then warrant an inquiry into whether modification of the existing custody order was necessary to further the best interests of the child, with the proposed relocation being one of the factors for the court to consider in making its best interests determination.

 

 Lincoln hearing will not be conducted if it will have a potential negative impact on the child

In Matter of Ellen H v Joseph H, --- N.Y.S.3d ----, 2021 WL 1676661, 2021 N.Y. Slip Op. 02567(3d Dept.,2021) the Appellate Division affirmed an order which modified the joint custody, shared physical custody order entered on consent and awarded the mother sole legal and physical custody. It rejected the fathers argument on appeal that Family Court erred for failing to conduct a Lincoln hearing. The determination of whether to hold a Lincoln hearing lies within Family Court’s discretion and such a hearing will not be conducted if it will have a potential negative impact on the child. The father’s attorney requested that Family Court conduct a Lincoln hearing at the conclusion of the fact-finding hearing. The court denied the request, agreeing with the AFC that a Lincoln hearing would only cause more unnecessary stress for the children, particularly since the relevant and available facts were already before the court. Although a Lincoln hearing is the preferred manner for ascertaining the children’s wishes, such a hearing is not mandatory, particularly where, as here, the record reflects that the hearing itself may do more harm than good.

There is no requirement that a notice of motion list the statute or regulation that is the basis of the motion as long as some grounds are mentioned. Where there is no misunderstanding or prejudice, a court may grant relief that is warranted by the facts plainly appearing on the motion papers.

In Rosenheck v Schachter, 2021 WL 1795298 (3d Dept.,2021) the wife moved in Supreme Court for counsel fees related to certain post judgment motions made by the husband in the Court of Appeals. The husband argued on appeal that the wife’s notice of motion was defective because it failed to specify the grounds on which the motion was based, thus prejudicing the husband. The Appellate Division observed, citing CPLR 2214[a], a “notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor, but there is no requirement that the notice of motion list the statute or regulation that is the basis of the motion as long as some grounds are mentioned. (Shields v. Carbone, 99 A.D.3d 1100, 1102 [2012]). In practice, the notice of motion specifies the time and place of the hearing as well as the relief requested while the affidavits, affirmations, and memorandum of law state the grounds for the relief. Where there is no misunderstanding or prejudice, a court may grant relief that is warranted by the facts plainly appearing on the motion papers on both sides. In support of her motion, the wife submitted the Court’s 2018 order, finding that the wife was entitled to appellate counsel fees based on the agreement, as well as various correspondence exchanged between the parties’ attorneys, one of which communicated to the husband’s counsel that the wife would be seeking judicial intervention if the counsel fees were not rendered pursuant to the agreement. Although the husband contended that he was prejudiced by the wife’s alleged failure to provide the grounds of her motion, it noted that the husband provided Supreme Court with a timely and detailed reply with various exhibits, including a copy of the agreement. Given the clear lack of prejudice or misunderstanding, it found that the court properly rendered a determination after examining all of the motion papers submitted.

 

Where child of mixed race continued presence of confederate flag painted on a rock near her driveway would constitute a change in circumstances and factor in any future best interests analysis

In Christie BB v Isaiah CC, --- N.Y.S.3d ----, 2021 WL 1795373, 2021 N.Y. Slip Op. 02847 (3d Dept.,2021) following a fact-finding hearing, Family Court determined that the parties should continue to have joint legal and physical custody of the child, with parenting time on alternating weeks. However, the court expanded upon the prior order by adding a provision that the mother’s home shall be considered the child’s primary residence for the purpose of schooling. The Appellate Divison modified this portion of Family Court’s order. Although not addressed by Family Court or the attorney for the child, the Appellate Division pointed out that mother’s testimony at the hearing, as well as an exhibit admitted into evidence, revealed that she had a small confederate flag painted on a rock near her driveway. It stated, given that the child was of mixed race, it would seem apparent that the presence of the flag is not in the child’s best interests, as the mother must encourage and teach the child to embrace her mixed race identity, rather than thrust her into a world that only makes sense through the tortured lens of cognitive dissonance. Further, and viewed pragmatically, the presence of the confederate flag is a symbol inflaming the already strained relationship between the parties. As such, while recognizing that the First Amendment protects the mother’s right to display the flag, if it is not removed by June 1, 2021, its continued presence would constitute a change in circumstances and Family Court shall factor this into any future best interests analysis.

 

Appellate Division, Fourth Department

Error to award maintenance for period of time in excess of recommendation in the advisory schedule in DRL § 236 (B) (6) (f) (1) without adequately demonstrating reliance on relevant statutory factors enumerated in DRL § 236 (B) (6) (e)

In Gutierrez v Gutierrez, --- N.Y.S.3d ----, 2021 WL 1711367 (Mem), 2021 N.Y. Slip Op. 02662 (4th Dept.,2021) the defendant husband appealed from a judgment of divorce that, inter alia, directed him to pay plaintiff wife $750 a week in maintenance for a period of 17 years. The Appellate Division agreed with his argument that Supreme Court erred in awarding maintenance for a period of time in excess of the recommendation set forth in the advisory schedule in Domestic Relations Law § 236 (B) (6) (f) (1) without adequately demonstrating its reliance on the relevant statutory factors enumerated in Domestic Relations Law § 236 (B) (6) (e) (see § 236 [B] [6] [f] [2]). The Appellate Division also concluded that the court erred in awarding plaintiff maintenance without sufficiently setting forth the relevant factors enumerated in Domestic Relations Law § 236 (B) (6) (e) that it relied on in reaching its determination. Although the court need not specifically cite the factors enumerated in that section, its analysis must show that it at least considered the relevant factors in making its determination. The determination must also reflect an appropriate balancing of the wife’s needs and the husband’s ability to pay. The court stated that it awarded plaintiff $750 per week, an amount deviating from the statutory guidelines, for a duration in excess of the statutory guidelines based on the length of the marriage, the parties’ disproportionate earning capacities, and defendant’s tax debt. However, although the statutory guidelines use the length of the marriage to calculate the duration of the maintenance award, the length of the parties’ marriage is not a factor enumerated in Domestic Relations Law § 236 (B) (6) (e). Further, the court did not state what factors it considered, in addition to actual earnings, in determining the parties’ earning capacities. Moreover, the court did not determine whether defendant’s substantial tax debt would impede his ability to pay plaintiff’s maintenance award. Thus, the court failed to show that it considered any of the factors enumerated in Domestic Relations Law § 236 (B) (6) (e) (1) in making its determination of both the amount and duration of the maintenance award. It vacated the maintenance award and remitted the matter to Supreme Court to determine the amount and duration of maintenance, if any, after setting forth all relevant factors that it considered in making its decision.

 

May 1, 2021

A defect in subject matter jurisdiction may be raised at any time by any party

In Hook v Snyder, --- N.Y.S.3d ----, 2021 WL 1567049 (Mem), 2021 N.Y. Slip Op. 02458 (1st Dept.,2021) the Appellate Division reversed an order which denied respondent mother’s motion to dismiss the custody modification petition on the ground of lack of subject matter jurisdiction, and granted the motion. It held among other things that contrary to petitioner’s contention, respondent’s prior appearances and execution of a stipulation in Family Court in New York did not constitute a waiver of her lack of subject matter jurisdiction defense; a defect in subject matter jurisdiction may be raised at any time by any party or by the court itself, and subject matter jurisdiction cannot be created through waiver, estoppel, laches, or consent (Matter of Nemes v. Tutino, 173 A.D.3d 16, 23, 101 N.Y.S.3d 538 [4th Dept. 2019]

 

Where a prior action for a divorce is discontinued, and the parties reconcile or continue the marital relationship, and receive the benefits of the relationship, property acquired after the discontinuance may be deemed marital property. To determine whether this standard has been met, inquiry must be made into the nature of the marital relationship within the context of the statutory scheme for equitable distribution.

In Potvin v Potvin, --- N.Y.S.3d ----, 2021 WL 1556056, 2021 N.Y. Slip Op. 02429(2d Dept.,2021) the parties were married in 1974 and had two adult children. On July 9, 2015, the plaintiff commenced this action for a separation, and the defendant counterclaimed for a divorce. At trial, testimony was elicited that the parties previously separated in 1991. The plaintiff commenced a prior action for a divorce in 1996, and the defendant agreed to pay child support in the sum of $1,200 per month. The plaintiff discontinued the prior divorce action in 1998. The defendant then moved back into the marital residence. The plaintiff testified, however, that the parties entered into an oral agreement that they were not reconciling and that each waived any right to the other’s assets. The defendant denied entering into such an agreement and claimed it was his understanding that the parties had reconciled. However, the defendant continued to pay the plaintiff $1,200 per month as his contribution toward household expenses until 2012. In a decision and order dated November 22, 2017, made after the trial, the Supreme Court, inter alia, denied the defendant’s motion for an award of counsel fees. The court also found that there was no “economic partnership” between the parties at any time following their separation in 1991, and that “each party shall retain ownership of the assets under his or her dominion and control,” including cash accounts, stocks, stock options, pension and retirement accounts, life insurance policies, and deferred compensation plans. In a judgment of divorce dated December 19, 2017, the court, among other things, directed that each party shall retain sole ownership of the assets in their own names, and awarded the plaintiff the marital residence, with a directive that the plaintiff pay the defendant 25% of the appraised value of the marital residence, less the $25,500 interim award and the sum of $1,972.60 advanced by the plaintiff for the cost of the trial transcript. The court also directed the plaintiff to pay the defendant maintenance of $1,414 per week for one year, and directed that each party shall bear the cost of their own counsel fees.  

The Appellate Division observed that where a prior action for a divorce is withdrawn or discontinued, and the parties “either reconcile or continue the marital relationship, and continue to receive the benefits of the relationship,” property acquired after the withdrawal or discontinuance of the prior divorce action may be deemed marital property (Iwanow v. Iwanow, 39 A.D.3d 471, 474, 834 N.Y.S.2d 247). “[I]n order to determine whether this standard has been met, inquiry must be made into the nature of the marital relationship within the context of the statutory scheme for equitable distribution. The parties resided together in the marital residence from 1998 until the commencement of the subject action in 2015, and for most of that time, shared the marital residence with the children. During that time, the parties visited relatives and attended social functions together, went on vacations together, and periodically engaged in sexual relations. Although the parties maintained separate bank accounts and credit cards, the parties filed joint tax returns and shared many of the family’s expenses, including the children’s college tuition and home renovations. Moreover, the parties named each other as executors and beneficiaries in their wills. Thus, the evidence demonstrated that the parties functioned as an “economic partnership” after the discontinuance of the prior divorce action, and the Supreme Court improperly found that the parties “ceased functioning as an economic partnership” and “lived separate financial lives” starting in 1991. Consequently, the court improvidently exercised its discretion in directing that the parties retain sole ownership of certain assets in their own names. Moreover, there was no written agreement to keep the parties’ finances separate. Marital partners may agree that property they acquire during the marriage will be divided in a particular manner, but that agreement must be in writing. Here, the alleged oral agreement between the parties did  not constitute such an agreement. Thus, the distribution of marital property must be based upon the equitable consideration and application of  enumerated factors and the court is required to set forth the factors it considered and the reasons for its decision (Domestic Relations Law § 236[B][5][g]). Here, the Supreme Court failed to set forth the factors it considered in making its decision as to equitable distribution, since the court only indicated that it relied upon the parties’ alleged oral agreement. It remitted the matter to the Supreme Court for a new determination of the issue of equitable distribution based upon findings of fact in compliance with Domestic Relations Law § 236(B).

  Furthermore, the Supreme Court erred in denying that branch of the defendant’s motion which was for an award of counsel fees. Since the defendant was the less monied spouse, the rebuttable presumption was applicable, and the plaintiff did not rebut that presumption. It remitted remit the matter to the Supreme Court for a hearing and determination as to the appropriate amount of counsel fees incurred by the defendant.

Parental access determinations should generally be made only after a full and plenary hearing and inquiry

In Matter of Vazquez v Bahr, --- N.Y.S.3d ----, 2021 WL 1556199 (Mem), 2021 N.Y. Slip Op. 02397 (2d Dept.,2021) the Appellate Division held that parental access determinations should generally be made only after a full and plenary hearing and inquiry (S.L. v. J.R., 27 N.Y.3d 558, 563, 36 N.Y.S.3d 411.) While the general right to a hearing in parental access cases is not absolute, where facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a hearing is required. Here, the record showed that there were disputed factual issues regarding the finding of the children’s best interests such that a hearing on parental access was required.