New York Divorce and Family Law Blog

NYC Litigation Support Professional Sought

2012-05-03T15:25:00.001-04:00

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Important New Decisions - April 27, 2012

2012-04-27T09:05:00.001-04:00

Decision to Impose a Suny Cap on Cost of Child’s College Education must Be Determined on a Case-by-case Basis, Considering Parties' Means and Child's Educational Needs.

In Tishman v Bogatin,--- N.Y.S.2d ----, 2012 WL 1392995 (N.Y.A.D. 1 Dept.) the Appellate Division affirmed an order which directed defendant to pay 40% of the cost of the parties' older child's college education. It held that the motion court properly rejected defendant's contention that a so-called SUNY cap should be imposed on his obligation to contribute to the costs of the child's college education-that is, that his contribution should be based on the cost of an education at a college in the State University of New York system, because plaintiff failed to show that the child's needs cannot be met adequately at a SUNY college. Whether to impose a SUNY cap is determined on a case-by-case basis, considering the parties' means and the child's educational needs. A rule that, absent unusual circumstances, a parent's obligation is limited to the maximum SUNY tuition would be inconsistent with Domestic Relations Law 240(1-b)(c)(7), which provides that a court may award educational expenses where it determines, "having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires," that the education sought to be paid for is appropriate. The record supported the court's direction that defendant pay 40% of the costs of the parties' older child's education at a private college. The child attended an elite public high school, his reasons for preferring the private college over SUNY schools were sound, both parties attended private college and private law school, and both parties had the resources to pay the tuition at the private college where the child was enrolled

Where Judgment Does Not Accurately Incorporate the Provisions of a Stipulation of Settlement the Stipulation Prevails

In Ayrovainen v Ayrovainen, --- N.Y.S.2d ----, 2012 WL 1322433 (N.Y.A.D. 2 Dept.) the Appellate Division observed that when a party alleges that a judgment does not accurately incorporate the provisions of a stipulation of settlement, the preferred remedy is to move in the trial court to resettle or vacate the judgment, rather than to appeal. Nevertheless, this Court may address the issue and, upon examining the stipulation and the judgment appealed from in this matter, it found that the latter did not conform to the former in several key respects including: the percentage of the college expenses of the parties' children for which the defendant was responsible, the date upon which the defendant's obligation to maintain the former marital residence would cease, under what conditions the defendant's maintenance obligation would terminate, and the manner in which the parties would claim their youngest child as a tax exemption. In addition, the judgment conflicted with the stipulation with respect to the defendant's responsibility to maintain a life insurance policy with the plaintiff as a beneficiary, whether the parties agreed that there would be a cost of living increase for the defendant's child support obligation, and whether the defendant was to assist the plaintiff with a potential sale of certain real property located in Livingston Manor. It remitted the matter to the Supreme Court to issue a corrected judgment which accurately reflects the terms of the parties' stipulation entered on the record in open court. .

Supreme Court Permits Amendment of Complaint to Add Irretrievable Breakdown Ground under DRL § 170 (7) Rejecting Strack and Schiffer Decisions

In Palermo v Palermo, 2011 WL 7711557 (N.Y.Sup.), 2011 N.Y. Slip Op. 52506(U), the couple were married in 1977. In September 2000, the wife moved out of the marital residence. In 2001, the wife commenced a divorce action against the husband on grounds of cruel and inhuman treatment and a jury returned a verdict of no cause for action. In February 2011, the wife again filed a verified complaint, this time on the grounds that the marital relationship had broken down for a period in excess of six months. The husband answered, denying the allegations, and asserting an affirmative defense that the couple had lived separate and apart for a period of at least 10 years. The husband moved to dismiss the wife's complaint, arguing that the statute of limitations had expired on her claims, that they were barred by res judicata, and that the complaint failed to state a cause of action. The wife cross-moved to replead the claim under DRL § 170(7) to include the specific allegation that the marriage was irretrievably broken for a period of greater than six months. Because amendments to pleadings at the early stages of litigation are widely favored, the motion to amend and serve the complaint was granted. CPLR 3025(b). The Court held that the verified statement of "irretrievable breakdown" of a marriage, in itself, without a trial, provided the necessary predicate to granting a divorce under the Domestic Relations Law. It examined the history of New York’s no fault divorce law. It observed that in Gleason v. Gleason, 26 N.Y.2d 28 (1970) the Court of Appeals pointed out that the legislature recognized "that it is socially and morally undesirable to compel a couple whose marriage is dead to remain subject to its bond." The Gleason decision is important to the current question because it recognizes that the state legislature could fashion divorce remedies based on both parties consent to end their marriage without further testimony or evidence as to their private intentions. In this case, the question was whether the state legislature provided the same relief-divorce-based on the intentions of just one of the two partners to the marriage, without any inquiry into their intent or conduct by enacting DRL 170(7). It pointed out that under this statute the legislature no longer requires evidence of the "mutual contemporaneous intention" as required by the two previous no-fault grounds. Under DRL 170(7), one partner alone can declare the marriage is "dead" if sworn to under oath, in accordance with the statutory language. While a strict reading of the statute suggests that the declaration alone provides the basis for a divorce, the husband contended that he was entitled to a trial on this provision relying on Strack v. Strack, 31 Misc.2d 258 (Sup.Ct. Essex Cty.2011), where, citing the Domestic Relations Law provision for a right to trial by jury, the court concluded that te legislature failed to include anything in the Domestic Relations Law 170(7) to suggest that the grounds contained therein are exempt from this right to trial. Had it intended to abolish the right to a trial for the grounds contained in the Domestic Relations Law, it would explicitly have done so. The court concluded that the question of whether a breakdown is irretrievable is a question of fact to be determined at trial. In view of the Strack decision, there was an apparent collision of the no-fault entitlement under DRL 170(7), and the trial right under DRL 173. The court resolved the statutory contradiction in light of the history and object of the enactment, in light of the facts which were found by the legislature to prompt its enactment. Malkin v. Wilkins, 22 A.D.2d 497 (4th Dep't 1965). The legislative history of New York's newest no-fault statute demonstrates the legislature's recognition of this "evil" and the proposed "remedy." It is apparent that the legislature intended to provide estranged couples a simple and incontestable basis for ending their marriage, and avoid the squabbling over issues that flow from the other objective grounds in DRL 170. In view of this intent, the court declined to follow the logic or holding of Strack. The court concurred with A.C. v. D.R., 32 Misc.3d 293 (Sup. Cty. Nassau Cty.2011) that there is "no defense to the no-fault grounds." This court also considered the opinion in Schiffer v. Schiffer, 33 Misc.3d 795 (Sup.Ct. Duchess Cty.2011), which followed the logic of Strack, holding that the no-fault assertion under DRL § 170(7) was subject to the trial requirement. This court finds little in Schiffer that differed from the analysis in Strack and declines to follow it. The Schiffer court suggested that what is required, as a matter of fact finding under DRL 170(7), is that the relationship be irretrievably broken and a statement under oath by the party seeking the divorce. However, there is no "and" connecting the sworn statement provision and the " "irretrievable breakdown for six months" assertion. The legislature used another connector: "provided." The use of this word-" "provided"-rather than "and" means that the "irretrievable breakdown for six months" must be accepted as true "provided" one party swears that it is true. The court in Schiffer also raised a "due process" argument, claiming that the courts should not deprive a spouse of the right to trial on irretrievable breakdown and that to hold otherwise reduces the court to a "rubber stamp" when presented with a claim under DRL 170(7). This suggestion ignores the Court of Appeals directive in Gleason: [R]ights growing out of the [marriage] relationship may be modified or abolished by the Legislature without violating the provisions of the Federal or State Constitution which forbid the taking of life, liberty or property without due process of law. Gleason v. Gleason, 26 N.Y.2d 28 (1970); see also A.C. v. D.R., 32 Misc.3d 293, 306 (Sup. Cty. Nassau Cty.2011) (reasserting compelling conclusion of Gleason that there is no due process right to any defense in matters involving the dissolution of marriages).For these reasons, this court declined to follow Schiffer.
For these reasons, the defendant's motion to dismiss the complaint, because it
failed to state a cause of action, was denied. The court also denied the motion to dismiss for violation of the statute of limitations. There is no statute of limitations under DRL s 170(7) because the cause of action only arises at the time the party swears that the marriage has been irretrievably broken for a period in excess of six months. A cause does not accrue until there is "a legal right" to be enforced. Hahn Automotive v. Amer. Zurish Ins. Co., 81 AD3d 1331 (4th Dep't 2011). The cause of action for divorce on the basis of irretrievable breakdown accrues at the time of the attestation by one partner and not sooner. The statute of limitations has no pertinence to a cause of action that arises at the time of the filing of the complaint. Finally, the court denied the defendant's motion to dismiss based on res judicata. Res judicata does not preclude the claim under DRL 170(7) because it is based on a different theory and cause of action. The jury finding that no cause of action for cruel and inhuman treatment existed a decade ago only applies to the facts before the jury at that time. It does not preclude this claim for a divorce on the grounds that one party has sworn that the marriage has been irretrievably broken for a period of excess six months.

Supreme Court Permits Amendment of Complaint to Add Irretrievable Breakdown Ground under DRL § 170(7) Even Though Amendment States That the Act
Shall Apply to Matrimonial Actions Commenced after the Effective Date

In G.C v G.C., 2012 WL 1292729 (N.Y.Sup.), 2012 N.Y. Slip Op. 50653(U) Supreme Court permitted an amendment to a divorce complaint to add new causes of action under the Domestic Relations Law which arose after the filing of the complaint. The plaintiff brought a divorce action prior to October 10, 2010. He alleged that his wife had engaged in cruel and inhuman treatment toward him. The wife answered the complaint, denying the specific allegations. After the commencement, the parties lived apart. The wife moved to Ohio. During discussions over the status of the case, the wife made it clear that she would contest the grounds for the divorce. The husband moved to amend the complaint to assert two new grounds: a ground under Domestic Relations Law § 170(2) for abandonment and a claim under Domestic Relations Law § 170(7) for an "irretrievably broken" marriage. The wife opposed the abandonment amendment, arguing that the husband can not allege abandonment when it occurred during a year after the filing of complaint and that its assertion, now, after the action has been pending for more than two years, is untimely and prejudicial. She opposed he amendment on the grounds of under Domestic Relations Law § 170(7) because the complaint was filed prior to the effective date of the change.
Supreme Court observed that amendments were both made pursuant to CPLR 3025(b), which provides that amendments should be freely given or a complaint may be supplemented "by setting forth additional or subsequent transactions or occurrences, at any time by leave of court."CPLR 3025(b). An avalanche of authority directs that the leave to amend a complaint should be "freely granted" unless the proposed amendment is clearly and patently insufficient on its face. Williams v. Ludlow's Sand & Gravel Co., 122 A.D.2d 612 (4th Dep't 1986). A cause of action under Domestic Relations Law s 170(2) requires allegations that a spouse's actual physical departure from the marital residence for one year is unjustified, voluntary, without consent of the plaintiff spouse, and with the intention of the departing spouse not to return. The amended complaint, on its face, met this minimal pleading requirement: it alleged that the wife left the marital residence in 2009, has not returned and her leaving was
without justification. The pleading stated the cause of action. Under the weight of cases favoring "freely granting" amendments to complaint, the cause of action for abandonment, although it accrued while this action had been pending, was properly pleaded and did not lack merit.
The Court pointed out that in October, 2010, the Legislature added a statutory
change to the Domestic Relations Law which created "no-fault divorce" and permitted one party to be granted the divorce upon a sworn declaration that the marriage was "irretrievably broken for a period in excess of six months" and the parties had agreed on all the issues related to support and equitable distribution The wife correctly noted that the statutory amendment states that the "act ... shall apply to matrimonial actions commenced after the effective date."It was undisputed that the effective date was October 12, 2010. The clear intention of the Legislature, based on this language, was to not allow litigants to simply
amend their complaints, after the amendment took effect, and allow those claims to proceed to adjudication on the basis of the new "no-fault" allegations by claiming that the six months of "irretrievable breakdown" included time before the effective date of the amendment. Nevertheless, the court granted his motion noting that the husband was not seeking any relief other than that sought in the original complaint: a divorce and accompanying property distribution. By virtue of the statutory change, the husband, having waited six months after its effective date, could now meet the time requirement of six months because all of the time accrued after the amendment took effect. The court reasoned that the husbands motion did not violate the language of the statute or the intention of the Legislature. Instead, he sought to invoke what the Legislature extended to him: a cause of action that has ripened because more than six months have passed since the date of the amendment and during that time, the husband swears that his marriage has been irretrievably broken. It pointed out that in Gleason v. Gleason, 26 N.Y.2d 28 (1970), the Court held that a statutory amendment, which added subdivision (4) to Section 170 of the Domestic Relations Law, could be used to permit an uncontested divorce to incorporate a separation agreement signed before the effective date of the statutory change. The Court of Appeals, in resolving the issue of the application of a new ground for divorce to an agreement, signed before the effective date of new statute, could not ignore the beneficial aspect of the statute and its goal of reducing tensions in obtaining final judgments in matrimonial cases. In this case, the change created by the addition of Section 170(7) paralleled the statutory change in Gleason v. Gleason: it simply provides another ground for a divorce. The new statute does not create greater rights for a spouse in a divorce. The no-fault change provides a speedy method for establishing the grounds and does not obviate the wife's right to insist on a trial regarding any and all financial issues related to the couple. The new change gives neither party any greater property rights. For these reasons, the language of CPLR 3025(b), the lack of any prejudice to the wife's property rights and the judicial command to "freely grant" such applications weigh heavily in favor of granting this motion. The motion to amend to add claims under Section 170(4) and 170(7) was granted.

Important New Decisions - April 23, 2012

2012-04-23T09:04:00.001-04:00

First Department Holds Although Husband Retained All the Property, Court Will Not Set Aside Agreement on Ground of Unconscionability Where Inequitable Conduct Lacking

In Barocas v Barocas, --- N.Y.S.2d ----, 2012 WL 1293783 (N.Y.A.D. 1 Dept.) the Appellate Division rejected defendant's contention that the property division provisions of the parties prenuptial agreement were unconscionable. Defendant failed to establish that her execution of the agreement was the result of inequitable conduct on plaintiff's part. Rather, the parties fully disclosed their respective assets and net worth, and the agreement was reviewed by independent counsel, who defendant admitted had told her that the agreement was "completely unfair" and advised against signing it. The fact that plaintiff's attorney recommended defendant's counsel, and that plaintiff paid her counsel's fees, was insufficient to demonstrate duress or overreaching. Defendant's claim that she believed that there would be no wedding if she did not sign the agreement, that the wedding was only two weeks away and that wedding plans had been made, was insufficient to demonstrate duress. Although application of the provisions would result in plaintiff retaining essentially all the property, courts will not set aside an agreement on the ground of unconscionability where inequitable conduct was lacking and simply because, in retrospect, the agreement proves to be improvident or one-sided. The circumstances surrounding the execution of the agreement disclosed no issue of fact as to whether there was overreaching. It therefore adhered to the general rule that " '[i]f the execution of the agreement ... be fair, no further inquiry will be made' " (Levine v. Levine, 56 N.Y.2d 42, 47 [1982], citing Christian, 42 N.Y.2d at 73). Moreover, duly executed prenuptial agreements are accorded the same presumption of legality as any other contract" ( Bloomfield v. Bloomfield, 97 N.Y.2d 188, 193 [2001] ). The majority disagreed with the dissent's conclusion that there was an issue of fact as to whether the property division provisions of the instant agreement are unconscionable. They observed that an unconscionable contract is one "which is so grossly unreasonable as to be unenforcible because of an absence of meaningful choice on part of one of the parties together with contract terms which are unreasonably favorable to the other party" ( King v. Fox, 7 NY3d 181, 191 [2006] ). Here, meaningful choice was not an issue inasmuch as defendant knowingly entered into the agreement against the advice of her counsel.
The majority also held that although defendant's waiver of spousal support was not unfair or unreasonable at the time she signed the agreement, given her knowing and voluntary execution thereof with benefit of counsel, factual issues existed as to whether the waiver would be unconscionable as applied to the present circumstances (Domestic Relations Law 236[B][3][3] ). A Child support award for the parties' two children had not been established, and it was unclear whether defendant would become a public charge without spousal support. It was also unclear whether waiver of all spousal support would result in inequality "so strong and manifest as to shock the conscience and confound the judgment of any [person] of common sense" ( Christian, 42 N.Y.2d at 71). The evidence showed that, despite the 15-year marriage, under the agreement, plaintiff would be entitled to retain property valued at about $4,600,000, while defendant would be entitled to only an IRA account valued at approximately $30,550. She claimed that she had no other assets or sources of income, and could no longer work, given that she was now 50 years old and that plaintiff had thwarted her efforts to get a college education and pursue a career during the marriage. Plaintiff, contends that defendant chose not to get a college degree or pursue a career, and that, while he supported her various business projects, the projects failed or she would quit after losing interest. The majority found that issues of fact existed as to whether the maintenance waiver would be unconscionable as applied to the current circumstances. Justices Freedman and Manzanet-Daniels dissented in part in separate memoranda.

Finding of neglect does not require actual injury but, rather, an imminent threat that such injury or impairment may result.

In Matter of Lamarcus E.,--- N.Y.S.2d ----, 2012 WL 1211389 (N.Y.A.D. 3 Dept.) Respondent, the father of the child (born in 2002), was granted custody in 2008 in a contested proceeding against the child's mother. In August 2009, while under petitioner's supervision, respondent informed petitioner that he intended to relocate to Connecticut in October 2009 to obtain employment and live with his girlfriend, but that he would not be taking his then seven-year-old son with him. Petitioner rejected respondent's request to accept the child into a voluntary placement. After Family Court and petitioner rejected three different plans proposed by respondent for the future care of the child, petitioner filed a neglect petition against him alleging that he intended to imminently implement his plan to permanently relocate to Connecticut without the child and without any viable plan for the child's care. Upon receipt of the petition, the court immediately removed the child and placed him in the temporary custody of petitioner, and respondent relocated to Connecticut as planned. Following a fact-finding hearing, respondent, who remained living out of state, was found to have neglected the child and, after a dispositional hearing, the court continued the child's placement with petitioner in foster care. The Appellate Division affirmed. It observed that a finding of neglect does not require actual injury but, rather, an imminent threat that such injury or impairment may result. In addition, the impairment "must be a consequence of the parent's failure to exercise a minimum degree of parental care" ( Matter of Afton C. [James C.], 17 NY3d at 9; Nicholson v. Scoppetta, 3 NY3d at 368, 370). Parental behavior, in turn, is evaluated by asking whether, under the circumstances, a reasonable and prudent parent would have so acted. Family Court based its determination of neglect upon respondent's plan to effectively abandon the care and custody of his child which, absent the intervention of petitioner, the court found would "certainly" have led to the impairment of the child's physical, mental or emotional condition. Upon learning of his plan to leave his child behind without a viable caretaker, petitioner's caseworkers had multiple discussions with respondent regarding the child's future. One caseworker testified that, during these discussions, respondent told her that he did not want to take the child along because he was "too much to handle" and he did not want to be responsible for facilitating, from Connecticut, visitation with the child's mother; he persistently requested that the child be placed in foster care. Significantly, although Family Court had previously ordered respondent not to relocate with the child out of state, he told a caseworker that he would not be taking his child with him even if granted the court's permission to do so and he did not file a petition to modify that restriction. While respondent implied in his brief that petitioner's refusal to permit him to voluntarily place his child in foster care is the basis for the neglect finding against him, a voluntary placement is appropriate only where a parent is unable to care for his or her child, and not where a parent is simply unwilling to do so, as here (see Social Services Law 384-a). Respondent's knowledge that his child would be placed in foster care upon his refusal to take him to Connecticut, fully aware that this placement would result in a charge of neglect against him, reflected his clear intention to abdicate his parental obligations, including his responsibility to adequately plan for his child's needs, thereby placing the child at risk. Respondent's suggested alternatives to placing his child in foster care reflected a glaring and fundamental misunderstanding of his responsibilities as a parent. Respondent's blatant unwillingness to provide proper care and supervision for his child placed the child in imminent danger of impairment.

Supreme Court Holds Agreement Provision Prohibiting Divorce until Apartment Sold Violated Public Policy Governing Divorces in New York

In Filstein v Bromberg, --- N.Y.S.2d ----, 2012 WL 1167458 (N.Y.Sup.) the parties were married in 1989. They parties purchased the marital residence, a three-bedroom condominium located on West 23rd Street in Manhattan ("the apartment") in 1998. In October 2007 the wife brought an action for separation. On February 15, 2008, the parties entered into the separation agreement that settled the wife's action for separation. The separation agreement, at Article IV, Paragraph 4(G), provides, in relevant part: “ Prior to the sale of the Apartment, (i) the parties' attorneys shall prepare a package of documents for the parties and counsel to sign, pursuant to which the Husband will be able to obtain an uncontested divorce based upon the Wife's having abandoned the Husband more than one year prior to the commencement of this action; and (ii) neither party shall file any papers to obtain a judgment of divorce.” More than four years after the parties entered the separation agreement resolving the 2007 action for separation, the apartment remained unsold and the parties remained married. The husband commenced an action in March 2011 for divorce and for a declaratory judgment determining that the no-divorce clause of the separation agreement was unenforceable. The husband moved pursuant to CPLR 3212 for partial summary judgment on his cause of action for declaratory judgment. He argued that conditioning the ability to obtain a judgment of divorce on the parties' ability to sell the apartment violated public policy. The wife argued in opposition that the clause is an enforceable contractual provision and that striking it would amount to the court finding that there is an absolute right to divorce. The wife also argues that if the no-divorce clause is held to be unenforceable, then she is entitled to have the entire separation agreement invalidated.
Supreme Court held that Article IV, Paragraph 4(G) of the parties' separation agreement violated public policy governing divorces in this state. In Gleason v. Gleason, 26 N.Y.2d 28 (1970), the Court of Appeals laid out New York's public policy position: “Implicit in the statutory scheme is the legislative recognition that it is socially and morally undesirable to compel couples to a dead marriage to retain an illusory and deceptive status and that the best interests not only of the parties but of society itself will be furthered by enabling them "to extricate themselves from a perpetual state of marital limbo." He observed that in P.B. v. L.B., 19 Misc.3d 186 (Sup Ct, 2008), the trial court applied the policy enunciated in the Gleason case to a party's challenge of a separation agreement clause preventing the husband from filing for divorce for five years after the parties signed the agreement. The court found that the clause was unenforceable, stating that "no waiver of a person's right to seek a divorce for longer than the statutory one year after execution of a separation agreement will be enforced by the court." Subsequently, another trial court found that a separation agreement preventing either spouse from commencing a divorce action for five years was void for the same reasons. Corso v. Corso, 21 Misc.3d 1102(A) (Sup Ct, 2008). The husband's motion for partial summary judgment was granted.
Supreme Court rejected the wife’s argument that if the court strikes the provision, then it must strike the entire agreement. The agreement contained a severability clause. Case law makes clear that when a clause in a separation agreement is voided, it can be severed and the rest of the agreement may stand. The court found the rest of the agreement was valid and remained enforceable.

Supreme Court Holds That Breach of the Collaborative Law Participation Agreement Does Not Require Finding That Husband Overreached During Collaborative Law Process.

In H.K. v A. K., 2012 WL 1232970 (N.Y.Sup.), 2012 N.Y. Slip Op. 50639(U) (Table, Text in WESTLAW), Unreported Disposition, the parties were married in 1980 and had three children, two of whom were emancipated. They encountered marital problems and entered into a collaborative law process, each retaining attorneys experienced in collaborative law, and signed a participation agreement. The participation agreement executed by the parties and their attorneys, on September 8, 2009, stated that the collaborative process "relies on honesty, co-operation, integrity, and professionalism" and that the parties will deal in good faith and "shall provide all relevant and reasonable information" which includes "sworn statement of net worth and supporting documentation of their income, assets and debts ." The parties acknowledge that they are setting aside "certain procedures" including "formal discovery proceedings." To assist in handling the couple's complicated finances, the parties retained a financial specialist who also signed the agreement. A lengthy collaborative process ensued. It was undisputed that the husband was in charge of the couple's finances. He had significant assets, traceable to his family, which provided the backbone of their income, and held senior titles in various real estate based entities. The wife was a part-time college professor. Once the collaborative process commenced, the husband provided significant financial disclosure. He averred, without contradiction, that he provided income tax returns, financial statements, and detailed financial records to the attorneys and the retained financial specialist.
The couple signed a separation agreement on June 10, 2010. In it they acknowledged the role of the collaborative process, that they had "applied their individual standards of reasonableness and acceptability to the agreement," and that they believed the agreement "to be fair, just, adequate, and reasonable." In the final paragraphs, the parties acknowledged that they had full and complete discovery and they "unequivocally waive" any further disclosure. The attorneys oversaw the preparation of the agreement and notarized their respective clients' signatures.
After signing the agreement, the wife learned from a third-party that the husband had a girlfriend and allegedly used marital funds to finance that relationship during the time he was negotiating the separation agreement. According to the wife, she raised this issue with her counsel and the attorney probed the husband on it. The wife alleged that the husband then refused to negotiate and was unwilling to fully disclose his involvement in the alleged relationship. When the issue boiled over, the wife changed counsel and the collaborative process ended. Shortly thereafter, this action was commenced and the competing motions for summary judgment were filed.
The wife argued that the husband breached the collaborative agreement and such a breach constituted fraud or overreaching under the principles established by the Court of Appeals in Christian v. Christian, 42 N.Y.2d 63 (1977). The wife argued that the husband breached the collaborative law agreement by misrepresenting the status of his EMA asset and requiring his wife to transfer it to their children's trusts. The wife's argument that the collaborative agreement sets a standard of conduct, which when breached by the husband constituted overreaching, was an issue of first impression in New York. The Court observed that the "collaborative law" process is a relatively new concept in matrimonial practice. New York courts have never considered its application. Collaborative law attempts to foster an amiable rather than an adversarial atmosphere by creating a "four-way" agreement between each party and their attorneys "in which all are expected to participate actively". The question of the scope of the participant's voluntary disclosure, which commentators have suggested is at the "hallmark" of the collaborative process, remains somewhat unsettled. A party can unilaterally terminate collaborative law at any time and for any reason, including failure of another party to produce requested information. Thus, if a party wishes to abandon collaborative law in favor of litigation for failure of voluntary disclosure, the party is free to do so and to engage in any court sanctioned discovery that might be available. In this case, the wife did not terminate the process prior to executing the agreement, nor did either attorney. Only after the agreement was signed, when the wife was told that the husband had financed his relationship with his girlfriend, did the wife terminate. For most intents and purposes the process had already reached its goal: the separation agreement was signed. Under these circumstances, the court declined to consider whether the husband's alleged breach of the collaborative agreement would subject the husband to a finding of overreaching under Christian v. Christian. The Court pointed out that if the wife or her attorneys suspected the husband was guilty of overreaching, they could have discontinued the process, but they chose not to. The Court held that a breach of the participation agreement did not require a finding that the husband overreached during the collaborative law process.

In Valuing Wife’s Law Decree Any Reliable Analysis of the Wife's Potential Earning Capacity Had to Assume That If She Had Not Attended Law School, She Would Have Sought Employment Commensurate with Her Education and Bachelor's Degree.

In Shea v Shea, --- N.Y.S.2d ----, 2012 WL 1124582 (N.Y.A.D. 3 Dept.) after the parties married in 1991, defendant (husband) completed his studies in psychology and obtained his Ph.D. degree. During the marriage, plaintiff (wife), in addition to having two children, attended law school and earned a law degree. After this divorce action was commenced in December 2006, the wife passed the bar exam and received her license to practice law. After a trial, Supreme Court awarded the husband $12,600, 10% of the value it placed on the wife's law degree. The court also directed the husband to pay $1,200 a month in child support and decreed that he owed $17,363.51 in child support arrears dating back to when the divorce action was commenced. In addition, the court denied applications by the wife that she be awarded a distributive share of the husband's Ph.D. degree, and by the husband that the wife be removed as custodian of bank accounts held in trust for their children.
On appeal the husband challenged Supreme Court's decision which adopted the opinion offered by the wife's expert that placed the value on her law degree at $126,000. He argued that since his expert's analysis was based in large measure on the wife's actual employment history, that analysis was more reliable, and the value of $252,617.82 that his expert placed on the degree should have been adopted by the court. The Appellate Division observed that in analyzing the value of the law degree, both experts compared what they believed the wife should have been able to earn during the relevant time period with and without a law degree and then factored the wife's work-life expectancy into the difference between these two figures to determine the extent to which the degree served to enhance her earning capacity. The principal difference in the evaluations offered by both experts revolved around what each believed the wife's earning capacity would have been had she not obtained a law degree. The wife's expert focused on her actual employment history, as well as statistical data on what an individual with a Bachelor's degree could have earned in the area where she lived during the relevant time period, and concluded that, without a law degree, the wife would have had an annual earning capacity of $44,500. The husband's expert arrived at a significantly lower figure primarily because of the emphasis he placed on the wife's actual employment history in the period prior to obtaining her law degree. He assumed in his analysis that the wife would not have entered the work force until 2006, or after she was admitted to practice law, and that she would have continued to work as a clerk throughout this entire period, even though before attending law school she had obtained a Bachelor's degree and had been accepted into a doctoral program at Indiana University. He concluded, given this history and based on these assumptions, that the wife's potential earning capacity, even with a Bachelor's degree, would not have exceeded $22,827 per year. Supreme Court rejected the opinion of the husband's expert and concluded, as did the wife's expert, that any reliable analysis of the wife's potential earning capacity had to assume that if she had not attended law school, she would have sought employment commensurate with her education and Bachelor's degree. The Appellate Division found that the decision to adopt the opinion of the wife's expert as to the value of her law degree was supported by credible evidence introduced at trial.
The Appellate Division rejected the husbands argument that he was entitled to a greater degree of the value of the wife's law degree because he was the family's primary wage earner during the parties' marriage and arranged his work schedule so that he could care for their children while the wife attended law school. It observed that a nontitled spouse seeking a portion of the enhanced earning potential attributable to a professional license or degree of a titled spouse is required to establish that a substantial contribution was made to the acquisition of the degree or license". Where only modest contributions are made by the nontitled spouse toward the other spouse's attainment of a degree or professional license, and the attainment is more directly the result of the titled spouse's own ability, tenacity, perseverance and hard work, it is appropriate for courts to limit the distributed amount of that enhanced earning capacity". His sacrifices represented overall contributions to the marriage rather than an additional effort to support the wife in obtaining her license. In addition, the wife's own efforts in obtaining her law degree could not be minimized. For example, she worked in part-time positions throughout the marriage and was employed during the summer months while attending law school. She earned merit scholarships and paid a significant part of her law school tuition with an inheritance she received during the marriage. It reached a similar conclusion as to the wife's claim that she should share in the value of the husband's Ph.D. degree. The husband had satisfied most of the requirements he needed to obtain this degree before the parties married and paid for it while providing financial support for his family. What assistance the wife may have provided in aiding him in acquiring this degree was simply not so significant or unique as to warrant awarding her a distributive share of its value.

Bonus Which Was Compensation for Future Services That Were Not Performed Prior to the Commencement of the Action Was Separate Property Not Subject to Equitable Distribution

In Ropiecki v Ropiecki, --- N.Y.S.2d ----, 2012 WL 1109179 (N.Y.A.D. 2 Dept.) the Appellate Division held that Supreme Court properly exercised its discretion in directing that the husbands maintenance obligations be retroactive to the date the action was commenced and properly awarded the defendant credit toward the maintenance arrears for voluntary payments he had made of $180,179.28. The defendant was not entitled to any further credit for voluntary payments, as the expenses from his net worth statement included payments made on behalf of himself and his emancipated children, payments for which the wife was not responsible (see Horne v. Horne, 22 N.Y.2d 219, 224; LiGreci v. LiGreci, 87 AD3d 722, 724). The Appellate Division found that Supreme Court properly considered the relevant statutory factors in fashioning the distribution. The parties were married for 27 years, and the plaintiff's very limited earning potential was a result of her staying home and taking care of the parties' four children, including their daughter, who suffered from Retts Syndrome and was severely disabled. The defendant, by contrast, acquired considerable earning potential. Under the circumstances, the Supreme Court providently exercised its discretion in awarding the plaintiff 100% of the equity in the marital home. Similarly, the Supreme Court properly required the defendant to pay the remaining mortgage debt on the marital home in full before transferring title to the plaintiff.
The Appellate Division agreed with the defendant that the Supreme Court improperly awarded the plaintiff a portion of his bonus in the sum of $200,000 as part of the equitable distribution of marital assets. The defendant's bonus, awarded in 2006, after the commencement of the action, was provided as an incentive for future services. Based on the defendant's testimony at trial, as well as the Executive Incentive Bonus Plan, the bonus plan was adopted by the defendant's employer in October 2006 as an incentive for certain employees, including the defendant, to meet certain goals and to ensure the successful sale of the company in the future. Accordingly, the bonus was compensation for future services that were not performed prior to the commencement of the action and, thus, was separate property not subject to equitable distribution. In light of the foregoing, the distributive award had to be reconsidered to ensure that the plaintiff was awarded her equitable share of the marital property, and the matter was remitted to Supreme Court for further review and a recalculation, if warranted, of the equitable distribution of marital property other than the marital residence.
The Appellate Division held that under the circumstances of this case, including the monthly amount of the defendant's maintenance obligation and the ages of the parties, the $1,500,00 of life insurance the defendant was required to carry, as ordered by the Supreme Court, was excessive, and was reduced by substituting a provision directing the defendant to maintain a life insurance policy naming the plaintiff as an irrevocable beneficiary in the sum of $1,200,000 until the plaintiff reaches the age of 65, and in the sum of $600,000 thereafter for as long as the defendant is obligated to pay maintenance. It also held that Supreme Court improvidently directed the defendant to pay 90% of the plaintiff's unreimbursed health care expenses, as such open-ended obligations have been consistently disfavored by the Court. It held that Supreme Court should have directed the defendant to pay 90% of the plaintiff's unreimbursed health care expenses only for as long as he is obligated to pay maintenance.

Argument, That Child Should Have Attended less Expensive College, Without Merit Where Parties Stipulation Did Not Require Parental Consent to Child's College Choice, and Did Not Place Limit on Tuition Amount
In Matter of Filosa v Donnelly, --- N.Y.S.2d ----, 2012 WL 1109332 (N.Y.A.D. 2 Dept.) the Appellate Division found that the father failed to establish, in accordance with the terms of the parties' stipulation of settlement of divorce, that he was financially unable to pay for the child's college tuition or that the mother did not comply with her obligation to encourage the child's use of financial aid, scholarships, and available student loans. Thus, Family Court did not improvidently exercise its discretion in granting the mother's petition and apportioning 50% of those expenses to him. It found his argument, that the child should have attended a less expensive college, without merit. The parties' stipulation did not mandate parental consent to the child's college choice, and it did not place a limit on the tuition amount for which the parties were responsible. Similarly, the father was not entitled to a credit toward his child support payment by virtue of the room-and-board component of the child's tuition, as no such credit was contemplated by the parties' stipulation of settlement.

Default must Be Vacated Once Movant Demonstrates Lack of Personal Jurisdiction, and Movant Is Relieved of Obligation to Demonstrate a Reasonable Excuse for Default and Meritorious Defense

In Matter of Anna M, 940 N.Y.S.2d 121, 2012 N.Y. Slip Op. 01676 (2d Dept 2012) in an order dated October 24, 2008, the Family Court appointed the petitioner, the uncle of the subject children, as guardian of the children. The father had failed to appear in these proceedings. Almost two years later, the father moved, inter alia, to vacate the order of guardianship, arguing that the Family Court lacked personal jurisdiction over him. The father argued, among other things, that he was not served with the order to show cause or petitions in this matter. In addition, his attorney argued that the affidavit of service stated that the father was served on September 28, 2008, which was a Sunday, rendering service void (see General Business Law 11). Family Court denied the father's motion without addressing the issue of personal jurisdiction. It found that the father had notice of the petitioner's request for guardianship but failed "to take action" and "explain his delay" in moving to vacate the order of guardianship and opposing the petitions. The Family Court therefore determined that even if there was a defect in service," the doctrine of laches operated to bar the father from vacating the guardianship order. The Appellate Division held that this was error. CPLR 5015 provides that "[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just," upon the ground of, inter alia, "excusable default" (CPLR 5015[a][1]) or "lack of jurisdiction to render the judgment or order" (CPLR 5015[a][4] ). A court may not rule on the excusable nature of a defendant's default under CPLR 5015(a)(1) without first determining the jurisdictional question under CPLR 5015(a)(4). Where want of jurisdiction is the ground for a motion to vacate pursuant to CPLR 5015, a default must be vacated once the movant demonstrates a lack of personal jurisdiction, and the movant is relieved of any obligation to demonstrate a reasonable excuse for the default and a potentially meritorious defense. Family Court failed to determine whether personal service was properly effected, or whether any defect in service could be disregarded as an irregularity under CPLR 2001 . The matter was remitted to the Family Court for a hearing to determine the issue of personal jurisdiction and thereafter for a new determination of the motion to vacate the order dated October 24, 2008.

Important New Decisions - April 16, 2012

2012-04-16T18:06:00.000-04:00

Court of Appeals Rejects Husbands Argument That Intention to Equally Divide Marital Estate Was Frustrated Because Both Parties Operated under "Mistake" or Misconception as to Existence of a Legitimate Madoff Investment Account
In Simkin v Blank, --- N.E.2d ----, 2012 WL 1080295 (N.Y.) Plaintiff Steven Simkin (husband) and defendant Laura Blank (wife) married in 1973 and had two children. The Husband was a partner at a New York law firm and the wife, also an attorney, was employed by a university. After almost 30 years of marriage, the parties separated in 2002 and stipulated in 2004 that the cut-off date for determining the value of marital assets would be September 1, 2004. The parties, represented by counsel, spent two years negotiating a detailed 22-page settlement agreement, executed in June 2006. In August 2006, the settlement agreement was incorporated, but not merged, into the parties' final judgment of divorce. The settlement agreement set forth a comprehensive division of marital property. The Husband agreed to pay the wife $6,250,000 "[a]s and for an equitable distribution of property ... and in satisfaction of the Wife's support and marital property rights."In addition, wife retained title to a Manhattan apartment (subject to a $370,000 mortgage), an automobile, her retirement accounts and any "bank, brokerage and similar financial accounts in her name."Upon receipt of her distributive payment, the wife agreed to convey her interest in the Scarsdale marital residence to husband. The Husband received title to three automobiles and kept his retirement accounts, less $368,000 to equalize the value of the parties' retirement accounts. He also retained "bank, brokerage and similar financial accounts" that were in his name, two of which were specifically referenced-his capital account as a partner at the law firm and a Citibank account. The agreement also contained a number of mutual releases between the parties. Each party waived any interest in the other's law license and released or discharged any debts or further claims against the other. Although the agreement acknowledged that the property division was "fair and reasonable," it did not state that the parties intended an equal distribution or other designated percentage division of the marital estate. The only provision that explicitly contemplated an equal division was the reference to equalizing the values of the parties' retirement accounts. The parties further acknowledged that the settlement constituted: "an agreement between them with respect to any and all funds, assets or properties, both real and personal, including property in which either of them may have an equitable or beneficial interest wherever situated, now owned by the parties or either of them, or standing in their respective names or which may hereafter be acquired by either of them, and all other rights and obligations arising out of the marital relationship."

At the time the parties entered into the settlement, one of husband's unspecified brokerage accounts was maintained by Bernard L. Madoff Investment Securities (the Madoff account). According to husband, the parties believed the account was valued at $5.4 million as of September 1, 2004, the valuation date for marital assets. The Husband withdrew funds from this account to pay a portion of his distributive payment owed wife in 2006, and continued to invest in the account subsequent to the divorce. In December 2008, Bernard Madoff's colossal Ponzi scheme was publicly exposed and Madoff later pleaded guilty to federal securities fraud and related offenses. As a result of the disclosure of Madoff's fraud, in February 2009, about 2 ½ years after the divorce was finalized, the husband commenced an action against wife alleging two causes of action: (1) reformation of the settlement agreement predicated on a mutual mistake and (2) unjust enrichment. The amended complaint asserted that the settlement agreement was intended to accomplish an "approximately equal division of [the couple's] marital assets," including a 50-50 division of the Madoff account. To that end, the amended complaint stated that $2,700,000 of wife's $6,250,000 distributive payment represented her "share" of the Madoff account. The Husband alleged that the parties' intention to equally divide the marital estate was frustrated because both parties operated under the "mistake" or misconception as to the existence of a legitimate investment account with Madoff which, in fact, was revealed to be part of a fraudulent Ponzi scheme. The amended complaint admitted, however, that funds were previously " 'withdrawn' from the 'Account' " by husband and applied to his obligation to pay wife.

In his claim for reformation, the husband requested that the court "determine the couple's true assets with respect to the Madoff account" and alter the settlement terms to reflect an equal division of the actual value of the Madoff account. The second cause of action sought restitution from wife "in an amount to be determined at trial" based on her unjust enrichment arising from husband's payment of what the parties mistakenly believed to be wife's share of the Madoff account. Supreme Court granted the Wife’s motion to dismiss the amended complaint. The Appellate Division, with two Justices dissenting, reversed and reinstated the action ( 80 AD3d 401 [1st Dept 2011] ).

The Court of Appeals observed that on a motion to dismiss under CPLR 3211, the pleading is to be given a liberal construction, the allegations contained within it are assumed to be true and the plaintiff is to be afforded every favorable inference. At the same time, however, "allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration" . Moreover, a claim predicated on mutual mistake must be pleaded with the requisite particularity necessitated under CPLR 3016(b). The Court, in an opinion by Judge Graffeo, noted that marital settlement agreements are judicially favored and are not to be easily set aside. Nevertheless, in the proper case, an agreement may be subject to rescission or reformation based on a mutual mistake by the parties. Similarly, a release of claims may be avoided due to mutual mistake. The mutual mistake must exist at the time the contract is entered into and must be substantial". Put differently, the mistake must be "so material that ... it goes to the foundation of the agreement". Court-ordered relief is therefore reserved only for "exceptional situations". The premise underlying the doctrine of mutual mistake is that "the agreement as expressed, in some material respect, does not represent the meeting of the minds of the parties". After reviewing Appellate mutual mistake cases in the context of marital settlement agreements the Court was of the view that the amended complaint failed to adequately state a cause of action based on mutual mistake. As an initial matter, the husband's claim that the alleged mutual mistake undermined the foundation of the settlement agreement, a precondition to relief under the Court’s precedents, was belied by the terms of the agreement itself. The Court pointed out that in True v. True (63 AD3d 1145 [2d Dept 2009] ), the settlement agreement provided that the husband's stock awards from his employer would be "divided 50-50 in kind" and recited that 3,655 shares were available for division between the parties. After the wife redeemed her half of the shares, the husband learned that only 150 shares remained and brought an action to reform the agreement, arguing that the parties mistakenly specified the gross number of shares (3,655) rather than the net number that was actually available for distribution. The Second Department agreed and reformed the agreement to effectuate the parties' intent to divide the shares equally, holding that the husband had established "that the parties' use of 3,655 gross shares was a mutual mistake because it undermined their intent to divide the net shares available for division, 50-50 in kind" (id. at 1148). Unlike the settlement agreement in True that expressly incorporated a "50-50" division of a stated number of stock shares, the settlement agreement here, on its face, did not mention the Madoff account, much less evince an intent to divide the account in equal or other proportionate shares. To the contrary, the agreement provided that the $6,250,000 payment to wife was "in satisfaction of [her] support and marital property rights," along with her release of various claims and inheritance rights. Despite the fact that the agreement permitted husband to retain title to his "bank, brokerage and similar financial accounts" and enumerated two such accounts, his alleged $5.4 million Madoff investment account was neither identified nor valued. Given the extensive and carefully negotiated nature of the settlement agreement, the Court did not believe that this presented one of those "exceptional situations") warranting reformation or rescission of a divorce settlement after all marital assets have been distributed.

Even putting the language of the agreement aside, the core allegation underpinning the husband's mutual mistake claim, that the Madoff account was "nonexistent" when the parties executed their settlement agreement in June 2006, did not amount to a "material" mistake of fact as required by case law. The amended complaint contained an admission that husband was able to withdraw funds from the account in 2006 to partially pay his distributive payment to wife. Given that the mutual mistake must have existed at the time the agreement was executed in 2006 the fact the husband could no longer withdraw funds years later was not determinative. This situation, however sympathetic, was more akin to a marital asset that unexpectedly loses value after dissolution of a marriage; the asset had value at the time of the settlement but the purported value did not remain consistent. The Court found this case analogous to the Appellate Division precedents denying a spouse's attempt to reopen a settlement agreement based on post-divorce changes in asset valuation. The Court held that the husband's unjust enrichment claim likewise failed to state a cause of action. It is well settled that, where the parties executed a valid and enforceable written contract governing a particular subject matter, recovery on a theory of unjust enrichment for events arising out of that subject matter is ordinarily precluded. Accordingly, the order of the Appellate Division was reversed, the order of Supreme Court reinstated, and the certified question answered in the negative.

QDRO Based on a Stipulation Can Convey Only Those Rights to Which the Parties Stipulated as a Basis for the Judgment
In Gursky v Gursky, --- N.Y.S.2d ----, 2012 WL 1033543 (N.Y.A.D. 3 Dept.) after plaintiff commenced an action for divorce, the parties entered into a partial written stipulation in which they agreed upon the total present value of the marital portion of the defined benefits component of plaintiff's pension. They did not reach any agreement as to the division of this asset. Instead, they specifically reserved their rights with respect to its equitable distribution. When they appeared for trial, they entered into an oral stipulation in which they agreed that the pension "will be divided pursuant to the Majauskas [f]ormula" (Majauskas v. Majauskas, 61 N.Y.2d 481 [1984] ). The stipulation was incorporated but not merged into the judgment of divorce, and defendant then moved for an order directing entry of his proposed qualified domestic relations order. Plaintiff objected, arguing that the proposed order exceeded the terms of the parties' stipulation because it created a separate pension interest for defendant by providing that he could elect to receive payment from the pension plan when plaintiff reached the plan's early retirement age of 55, regardless of whether she had yet retired. Supreme Court rejected plaintiff's objections and granted the motion. The Appellate Division reversed and denied the motion. It observed that a qualified domestic relations order based on a stipulation "can convey only those rights to which the parties stipulated as a basis for the judgment" ( McCoy v. Feinman, 99 N.Y.2d 295, 304 [2002]). Where the language of the stipulation is unambiguous, the intent of the parties must be ascertained from within its four corners and the Court will not add language that the parties did not include. Here, there was no ambiguity. The parties agreed to divide the pension by applying the Majauskas formula. To interpret that agreement, Supreme Court was required to look to Majauskas, where the formula entitled the nonemployee spouse to receive a proportionate share of one half of each pension check received by the employee spouse, with the denominator of the fraction based on the length of the employee spouse's employment prior to his or her retirement. By invoking the Majauskas formula, without more, the parties stipulated that distribution of the pension would take effect upon plaintiff's retirement, as in Majauskas, resulting in a shared payment. Thus, Supreme Court's distribution of a separate pension interest to defendant prior to plaintiff's retirement improperly expanded the terms of the parties' stipulation.

Wife Did Not Waive Right to Challenge Husband's Claims Regarding Income Because She Signed Joint Tax Returns That Listed His Annual Income.
In Harrington v Harrington, --- N.Y.S.2d ----, 2012 WL 1033451 (N.Y.A.D. 3 Dept.) Plaintiff (husband) and defendant (wife) were married in 1991 and had two children (born in 1989 and 1991). The husband was a self-employed contractor who operated his own construction business while the wife, who was permanently disabled, devoted herself to the care of the parties' children and was not otherwise employed. The husband commenced this action for a divorce in December 2008. After a trial, Supreme Court granted the wife's counterclaim for divorce, distributed certain marital assets, and directed the husband to pay maintenance for 15 years and approximately $10,000 towards the wife's counsel fees. The Appellate Division affirmed. It rejected the husbands challenge to Supreme Court's decision to impute an additional $30,000 to the income he claimed to earn each year. The Appellate Division held that Supreme Court is not bound by representations made by a party in a matrimonial action regarding his or her annual income and may increase that figure where the record establishes, as it did here, that a party routinely paid "personal expenses from business accounts" and had access to other income to offset such expenses. In support of his claim regarding his annual income, the husband submitted tax returns for a four-year period beginning in 2005 in which he claimed annual adjusted gross income between $13,802 and $33,689. Supreme Court found, and the record established, that despite the husband's claims regarding his limited income, he paid, in addition to other expenses, $559 per month in child support and $2,000 each month to his girlfriend to live at her residence and for bookkeeping services she provided his contracting business. Also, the husband admitted using the business checking account for personal expenses and paying for numerous vacations he had taken with his girlfriend, plus $950 a month in rent for a residence in which he did not reside. This evidence provided ample support for Supreme Court's determination that additional income should be imputed to the husband to reflect an annual income of $60,000 per year. Supreme Court was not bound by a determination previously rendered by Family Court in a child support proceeding that his annual income was $30,000. Here, evidence was presented that the husband's claims in this regard were not accurate or credible, and provided a rational basis for Supreme Court's decision placing his annual income at $60,000. In addition, the wife did not waive her right to challenge the husband's claims regarding his annual income simply because she had previously signed joint tax returns that listed his annual income as $30,000.

Supreme Court conducted a hearing at which the wife's counsel testified to the legal services she provided during the course of these proceedings. Given the wife's need for these legal services, and the parties' respective financial conditions, the Appellate Division held that court did not abuse its discretion by directing the husband to contribute $9,816 to the payment of the legal expenses that the wife incurred in these proceedings. While the wife's counsel did not, as required, bill the wife every 60 days for her services, she did provide her with a copy of a retainer agreement, as well as a statement of client's rights and responsibilities pursuant to 22 NYCRR 1400.3. Counsel's failure to bill the wife for these services every 60 days was not a ground upon which the husband can rely to avoid paying a share of her legal expenses. The court noted that the action was commenced prior to the amendment to Domestic Relations Law 237(a) (see L 2010, ch 329, s 1 ).

Error in Failing to Afford Father Opportunity to Make Closing Statement Does Not Require Reversal Where Court Familiar with the Facts of Case and Parties' Arguments
In Matter of Bond v Bond, --- N.Y.S.2d ----, 2012 WL 1033469 (N.Y.A.D. 3 Dept.) Petitioner (father) and respondent (mother) were the parents of six children. The three youngest children, two daughters (born in 1994 and 1995) and a son (born in 2001), were the subject of the proceeding on appeal. In November 2004, the parties stipulated to a custody arrangement by which the mother had sole legal and primary physical custody of the three children, with extended alternate weekend visitation with the father. This agreement was later incorporated into a custody order in January 2005 and the judgment of divorce in March 2007. In April 2010, the father filed a petition for modification seeking joint legal and primary physical custody of the younger daughter and joint legal and shared physical custody of the son. Following trial, Family Court dismissed the petition on the ground that the father had failed to establish a sufficient change in circumstances. The Appellate Division affirmed. It observed that the father's petition alleged that the two younger children wished to spend more time with him, that the mother was verbally and physically abusive, and that the mother disappointed the younger daughter by failing to bring her to an out-of-state award ceremony. As the allegations of abuse were unsubstantiated and the children's preferences standing alone did not establish a sufficient change in circumstances, there was a sound and substantial basis in the record supporting Family Court's determination. The Appellate Division observed that the trial testimony and decision referenced events occurring prior to the existing custody order. As the father argued, relying upon those prior events would be improper in assessing whether there had been a change in circumstances. However, it did not find that the Courts analysis relied upon these extraneous references. It rejected that the father's contention that Family Court's error in failing to afford him the opportunity to make a closing statement required reversal (see CPLR 4016[a] ). At the conclusion of the fact-finding hearing, the father's counsel stated that he wished to make a short closing statement only if the mother did so, and the court indicated that arrangements would be made following the Lincoln hearing. The mother subsequently submitted a written closing statement; the father neither responded to this submission nor requested a further appearance, and more than four weeks passed before the decision was rendered. Considering these circumstances, and that the court was fully familiar with the facts of the case as well as the parties' arguments, no reversible error occurred (See Matter of Saggese v. Steinmetz, 83 A.D.3d 1144, 1145 [2011; Lohmiller v. Lohmiller, 140 A.D.2d 497, 498 [1988] ).

On Motion to Dismiss Family Offense Petition Pursuant to CPLR 3211(a) (7) Court Should Wade Through Allegations and Dismiss Only Those Which Do Not Sufficiently Allege Conduct That Constitutes a Family Offense
In Matter of Pamela N v Neil N, --- N.Y.S.2d ----, 2012 WL 1033487 (N.Y.A.D. 3 Dept.), Petitioner (mother) and respondent (father) were married in 2003 and had twins in 2005. The father was awarded custody by order of August 20, 2010. In December 2010, the mother filed two family offense petitions against the father, and filed a third such petition in February 2011, as well as a modification of custody petition. Family Court granted the father's motions to dismiss the two December 2010 family offense petitions, and also dismissed the custody petition given that a divorce action was then pending in Supreme Court. The court also dismissed the February 2011 family offense petition, on the father's motion, for failure to state a cause of action (CPLR 3211[a][7] ), without a hearing. The Appellate Division observed that presented with a motion to dismiss pursuant to CPLR 3211(a)(7), which is proper here in that family offense proceedings under Family Ct Act article 8 are civil in nature a court may freely consider affidavits submitted by the petitioner to remedy any defects in the petition, and the criterion is whether the proponent of the pleading has a cause of action, not whether he or she has stated one. ( Guggenheimer v. Ginzburg, 43 N.Y.2d at 275). A family offense proceeding is originated by filing a petition alleging that the respondent committed one of the enumerated offenses against, among others, a spouse, former spouse or child. In her pro se February 2011 petition, the mother checked all boxes on the petition form listing those enumerated offenses. Her attached affidavit and handwritten answers contained many conclusory, irrelevant, ambiguous and insufficiently specific allegations, including claims against individuals who were not "members of the same family or household". However, liberally construing the petition and giving it the benefit of every favorable inference (Leon v. Martinez, 84 N.Y.2d at 87-88), the Court found that while it was inartfully drafted, it adequately alleged, at the very least, that the father had stalked and harassed her. For example, the mother alleged in her affidavit that on November 23, 2008, the father came to her house while she had the children and threatened and harassed her, making excuses for his presence; he then called her three times that evening and continued to make excuses for coming to her house, leading her to file a domestic incident report with police the next day. These allegations described the type of conduct required to originate a family offense proceeding (Family Ct Act 821[1] ) in that they adequately allege, so as to survive a motion to dismiss for failure to state a cause of action (CPLR 3211 [a][7] ), that the father, acting with the requisite intent that is inferable from the alleged circumstances, engaged in a course of conduct which alarmed or seriously annoyed the mother, which served no legitimate purpose, thereby committing the offense of harassment in the second degree (Penal Law 240.26 [3]) Additionally, the allegations, if credited, were sufficient to allege that respondent committed the offense of stalking in the fourth degree (Penal Law 120.45[1], [2] ). The Appellate Division agreed with the mother and attorney for the children that Family Court should not have dismissed the petition in its entirety but, rather, should have waded through the myriad allegations and dismissed with specificity only those which did not sufficiently allege conduct that constituted harassment, stalking or any other act listed in Family Ct Act 821(1). The order granting respondent's motion to dismiss the February 18, 2011 petition was reversed, the motion denied and matter remitted to the Family Court for further proceedings not inconsistent with the Court's decision.

Family Court Lacks Subject Matter Jurisdiction to Enforce Purported Modification Agreement Not Incorporated into Judgment
In Hirsch v Schwartz, --- N.Y.S.2d ----, 2012 WL 1033520 (N.Y.A.D. 3 Dept.) Petitioner (mother) and respondent ( father) were divorced in 2009 and had two children from the marriage (born in 2001 and 2003). The parties' 2007 separation agreement, which required the father to pay 96% of all child-care expenses, was incorporated but not merged into their 2009 judgment of divorce. Shortly thereafter, the mother sent the father a letter offer which proposed a reduction of the father's child-care expenses from 96% to 75%. Although the father did not sign and return the letter offer he made at least two full reimbursement payments and several partial payments in the months that followed. The mother subsequently commenced this proceeding seeking to enforce the child support provisions of the judgment of divorce. In response, the father argued that the mother's letter offer served to modify his support obligations and that the terms of this subsequent agreement should be enforced. Following a trial, a Support Magistrate found that the letter offer constituted a valid modification of the parties' separation agreement that reduced the father's child-care expenses to 75%, and ordered arrears in the amount of $2,625.25. Upon the mother's written objections, Family Court concluded that the Support Magistrate lacked the authority to enforce the terms of the purported modification agreement and, therefore, the provisions in the judgment of divorce concerning the father's child-care obligations controlled. The Appellate Division affirmed. It observed that Family Court, as a court of limited jurisdiction, may only enforce or modify child support provisions contained in a valid court order or judgment ( Family Ct Act 422, 461[b][I]; 466; Matter of Johna M.S. v. Russell E.S., 10 NY3d 364, 366 [2008]; Matter of Brescia v. Fitts, 56 N.Y.2d 132, 139 [1982]; Kleila v. Kleila, 50 N.Y.2d 277, 282 [1980] ). Thus, even assuming that the mother's letter offer constituted a valid modification of the parties' separation agreement, Family Court did not have subject matter jurisdiction to enforce the amended agreement which stands as an independent contract between the parties .

Important New Decisions - April 4, 2012

2012-04-04T09:58:00.001-04:00

Court of Appeals Rejects Husbands Argument That Intention to Equally Divide Marital Estate Was Frustrated Because Both Parties Operated under "Mistake" or Misconception as to Existence of a Legitimate Madoff Investment Account


In Simkin v Blank, --- N.E.2d ----, 2012 WL 1080295 (N.Y.) Plaintiff Steven Simkin (husband) and defendant Laura Blank (wife) married in 1973 and had two children. The Husband was a partner at a New York law firm and the wife, also an attorney, was employed by a university. After almost 30 years of marriage, the parties separated in 2002 and stipulated in 2004 that the cut-off date for determining the value of marital assets would be September 1, 2004. The parties, represented by counsel, spent two years negotiating a detailed 22-page settlement agreement, executed in June 2006. In August 2006, the settlement agreement was incorporated, but not merged, into the parties' final judgment of divorce. The settlement agreement set forth a comprehensive division of marital property. The Husband agreed to pay the wife $6,250,000 "[a]s and for an equitable distribution of property ... and in satisfaction of the Wife's support and marital property rights."In addition, wife retained title to a Manhattan apartment (subject to a $370,000 mortgage), an automobile, her retirement accounts and any
"bank, brokerage and similar financial accounts in her name."Upon receipt of her
distributive payment, the wife agreed to convey her interest in the Scarsdale marital
residence to husband. The Husband received title to three automobiles and kept his
retirement accounts, less $368,000 to equalize the value of the parties' retirement accounts. He also retained "bank, brokerage and similar financial accounts" that were in his name, two of which were specifically referenced-his capital account as a partner at the law firm and a Citibank account. The agreement also contained a number of mutual releases between the parties. Each party waived any interest in the other's law license and released or discharged any debts or further claims against the other. Although the agreement acknowledged that the property division was "fair and reasonable," it did not state that the parties intended an equal distribution or other designated percentage division of the marital estate. The only provision that explicitly contemplated an equal division was the reference to equalizing the values of the parties' retirement accounts. The parties further acknowledged that the settlement constituted: "an agreement between them with respect to any and all funds, assets or properties, both real and personal, including property in which either of them may have an equitable or beneficial interest wherever situated, now owned by the parties or either of them, or standing in their respective names or which may hereafter be acquired by either of them, and all other rights and obligations arising out of the marital relationship."
At the time the parties entered into the settlement, one of husband's unspecified brokerage accounts was maintained by Bernard L. Madoff Investment Securities (the Madoff account). According to husband, the parties believed the account was valued at $5.4 million as of September 1, 2004, the valuation date for marital assets. The Husband withdrew funds from this account to pay a portion of his distributive payment owed wife in 2006, and continued to invest in the account subsequent to the divorce. In December 2008, Bernard Madoff's colossal Ponzi scheme was publicly exposed and Madoff later pleaded guilty to federal securities
fraud and related offenses. As a result of the disclosure of Madoff's fraud, in February 2009, about 2 ½ years after the divorce was finalized, the husband commenced an action against wife alleging two causes of action: (1) reformation of the settlement agreement predicated on a mutual mistake and (2) unjust enrichment. The amended complaint asserted that the settlement agreement was intended to accomplish an "approximately equal division of [the couple's] marital assets," including a 50-50 division of the Madoff account. To that end, the amended complaint stated that $2,700,000 of wife's $6,250,000 distributive payment represented her "share" of the Madoff account. The Husband alleged that the parties' intention to equally divide the marital estate was frustrated because both parties operated under the "mistake" or
misconception as to the existence of a legitimate investment account with Madoff
which, in fact, was revealed to be part of a fraudulent Ponzi scheme. The amended
complaint admitted, however, that funds were previously " 'withdrawn' from the 'Account' " by husband and applied to his obligation to pay wife. In his claim for reformation, the husband requested that the court "determine the couple's true assets with respect to the Madoff account" and alter the settlement terms to reflect an equal division of the actual value of the Madoff account. The second cause of action sought restitution from wife "in an amount to be determined at trial" based on her unjust enrichment arising from husband's payment of what
the parties mistakenly believed to be wife's share of the Madoff account. Supreme Court granted the Wife’s motion to dismiss the amended complaint. The Appellate Division, with two Justices dissenting, reversed and reinstated the action ( 80 AD3d 401 [1st Dept 2011] ).
The Court of Appeals observed that on a motion to dismiss under CPLR 3211, the pleading is to be given a liberal construction, the allegations contained within it are assumed to be true and the plaintiff is to be afforded every favorable inference. At the same time, however, "allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration" . Moreover, a claim predicated on mutual mistake must be pleaded with the requisite particularity necessitated under CPLR 3016(b). The Court, in an opinion by Judge Graffeo, noted that marital settlement agreements are judicially favored and are not to be easily set aside. Nevertheless, in the proper case, an agreement may be subject to rescission or reformation based on a mutual mistake by the parties. Similarly, a release of claims may be avoided due to mutual mistake. The mutual mistake must exist at the time the contract is entered into and must be substantial". Put differently, the mistake must be "so material that ... it goes to the foundation of the agreement". Court-ordered relief is therefore reserved only for "exceptional situations". The premise underlying the doctrine of mutual mistake is that "the agreement as expressed, in some material respect, does not represent the meeting of the minds of the parties". After reviewing Appellate mutual mistake cases in the context of marital settlement agreements the Court was of the view that the amended complaint failed to adequately state a cause of action based on mutual mistake. As an initial matter, the husband's claim that the alleged mutual mistake undermined the foundation of the settlement agreement, a precondition to relief under the Court’s precedents, was belied by the terms of the agreement itself. The Court pointed out that in True v. True (63 AD3d 1145 [2d Dept 2009] ), the settlement agreement provided that the husband's stock awards from his employer would be "divided 50-50 in kind" and recited that 3,655 shares were available for division between the parties. After the wife redeemed her half of the shares, the husband learned that only 150 shares remained and brought an action to reform the agreement, arguing that the parties mistakenly specified the gross number of shares (3,655) rather than the net number that was actually available for distribution. The Second Department agreed and reformed the agreement to effectuate the parties' intent to divide the shares equally, holding that the husband had established "that the parties' use of 3,655 gross shares was a mutual mistake because it undermined their intent to divide the net shares available for division, 50-50 in kind" (id. at 1148). Unlike the settlement agreement in True that expressly incorporated a "50-50" division of a stated number of stock shares, the settlement agreement here, on its face, did not mention the Madoff account, much less evince an intent to divide the account in equal or other proportionate shares. To the contrary, the agreement provided that the $6,250,000 payment to wife was "in satisfaction of [her] support and marital property rights," along with her release of various claims and inheritance rights. Despite the fact that the agreement permitted husband to retain title to his "bank, brokerage and similar financial accounts" and enumerated two such accounts, his alleged $5.4 million Madoff investment account was neither identified nor
valued. Given the extensive and carefully negotiated nature of the settlement
agreement, the Court did not believe that this presented one of those "exceptional
situations") warranting reformation or rescission of a divorce settlement after all
marital assets have been distributed.
Even putting the language of the agreement aside, the core allegation underpinning the husband's mutual mistake claim, that the Madoff account was "nonexistent" when the parties executed their settlement agreement in June 2006, did not amount to a "material" mistake of fact as required by case law. The amended complaint contained an admission that husband was able to withdraw funds from the account in 2006 to partially pay his distributive payment to wife. Given that the mutual mistake must have existed at the time the agreement was executed in 2006 the fact the husband could no longer withdraw funds years later was not determinative. This situation, however sympathetic, was more akin to a marital asset that unexpectedly loses value after dissolution of a marriage; the asset had value at the time of the settlement but the purported value did not remain consistent. The Court found this case analogous to the Appellate Division precedents denying a spouse's attempt to reopen a settlement agreement based on post-divorce changes in asset valuation.
The Court held that the husband's unjust enrichment claim likewise failed to state a cause of action. It is well settled that, where the parties executed a valid and enforceable written contract governing a particular subject matter, recovery on a theory of unjust enrichment for events arising out of that subject matter is ordinarily precluded.
Accordingly, the order of the Appellate Division was reversed, the order of Supreme Court reinstated, and the certified question answered in the negative.

QDRO Based on a Stipulation Can Convey Only Those Rights to Which the Parties Stipulated as a Basis for the Judgment

In Gursky v Gursky, --- N.Y.S.2d ----, 2012 WL 1033543 (N.Y.A.D. 3 Dept.) after plaintiff commenced an action for divorce, the parties entered into a partial written stipulation in which they agreed upon the total present value of the marital portion of the defined benefits component of plaintiff's pension. They did not reach any agreement as to the division of this asset. Instead, they specifically reserved their rights with respect to
its equitable distribution. When they appeared for trial, they entered into an oral stipulation in which they agreed that the pension "will be divided pursuant to the Majauskas [f]ormula" (Majauskas v. Majauskas, 61 N.Y.2d 481 [1984] ). The stipulation was incorporated but not merged into the judgment of divorce, and defendant then moved for an order directing entry of his proposed qualified domestic relations order. Plaintiff objected, arguing that the proposed order exceeded the terms of the parties' stipulation because it created a separate pension interest for defendant by providing that he could elect to receive payment from the pension plan when plaintiff reached the plan's early retirement age of 55, regardless of whether she had yet retired. Supreme Court rejected plaintiff's objections and granted the motion. The Appellate Division reversed and denied the motion. It observed that a qualified domestic relations order based on a stipulation "can convey only those rights to which the parties stipulated as a basis for the judgment" ( McCoy v. Feinman, 99 N.Y.2d 295, 304 [2002]). Where the language of the stipulation is unambiguous, the intent of the parties must be ascertained from within its four corners and the Court will not add language that the parties did not include. Here, there was no ambiguity. The parties agreed to divide the pension by applying the Majauskas formula. To interpret that agreement, Supreme Court was required to look to Majauskas, where the formula entitled the nonemployee spouse to receive a proportionate share of one half of each pension check received by the employee spouse, with the denominator of the fraction based on the length of the employee spouse's employment prior to his or her retirement. By invoking the Majauskas formula, without more, the parties stipulated that distribution of the pension would take effect upon plaintiff's retirement, as in Majauskas, resulting in a shared payment. Thus, Supreme Court's distribution of a separate pension interest to defendant prior to plaintiff's retirement improperly expanded the terms of the parties' stipulation.

Wife Did Not Waive Right to Challenge Husband's Claims Regarding Income Because She Signed Joint Tax Returns That Listed His Annual Income.

In Harrington v Harrington, --- N.Y.S.2d ----, 2012 WL 1033451 (N.Y.A.D. 3 Dept.)
Plaintiff (husband) and defendant (wife) were married in 1991 and had two children (born in 1989 and 1991). The husband was a self-employed contractor who operated his own construction business while the wife, who was permanently disabled, devoted herself to the care of the parties' children and was not otherwise employed. The husband commenced this action for a divorce in December 2008. After a trial, Supreme Court granted the wife's counterclaim for divorce, distributed certain marital assets, and
directed the husband to pay maintenance for 15 years and approximately $10,000
towards the wife's counsel fees. The Appellate Division affirmed. It rejected the husbands challenge to Supreme Court's decision to impute an additional $30,000 to the income he claimed to earn each year. The Appellate Division held that Supreme Court is not bound by representations made by a party in a matrimonial action regarding his or her annual income and may increase that figure where the record establishes, as it did here, that a party routinely paid "personal expenses from business accounts" and had access to other income to offset such expenses. In support of his claim regarding his annual income, the husband submitted tax returns for a four-year period beginning in 2005 in which he claimed annual adjusted gross income between $13,802 and $33,689. Supreme Court found, and the record established, that despite the husband's claims regarding his limited income, he paid, in addition to other expenses, $559 per month in child support and $2,000 each month to his girlfriend to live at her residence and for bookkeeping services she provided his contracting business. Also, the husband admitted using the business checking account for personal expenses and paying for numerous vacations he had taken with his girlfriend, plus $950 a month in rent for a residence in which he did not reside. This evidence provided ample support for Supreme Court's determination that additional income should be imputed to the husband to reflect an annual income of $60,000 per year. Supreme Court was not bound by a determination previously rendered by Family Court in a child support proceeding that his annual income was $30,000. Here, evidence was presented that the husband's claims in this regard were not accurate or credible, and provided a rational basis for Supreme Court's decision placing his annual income at $60,000. In addition, the wife did not waive her right to challenge the husband's claims regarding his annual income simply because she had previously signed joint tax returns that listed his annual income as $30,000.
Supreme Court conducted a hearing at which the wife's counsel testified to the legal services she provided during the course of these proceedings. Given the wife's need for these legal services, and the parties' respective financial conditions, the Appellate Division held that court did not abuse its discretion by directing the husband to contribute $9,816 to the payment of the legal expenses that the wife incurred in these proceedings. While the wife's counsel did not, as required, bill the wife every 60 days for her services, she did provide her with a copy of a retainer agreement, as well as a statement of client's rights and responsibilities pursuant to 22 NYCRR 1400.3. Counsel's failure to bill the wife for these services every 60 days was not a ground upon which the husband can rely to avoid paying a share of her legal expenses. The court noted that the action was commenced prior to the amendment to Domestic Relations Law 237(a) (see L 2010, ch 329, s 1 ).

Error in Failing to Afford Father Opportunity to Make Closing Statement Does Not Require Reversal Where Court Familiar with the Facts of Case and Parties' Arguments

In Matter of Bond v Bond, --- N.Y.S.2d ----, 2012 WL 1033469 (N.Y.A.D. 3 Dept.) Petitioner (father) and respondent (mother) were the parents of six children. The three youngest children, two daughters (born in 1994 and 1995) and a son (born in 2001), were the subject of the proceeding on appeal. In November 2004, the parties stipulated to a custody arrangement by which the mother had sole legal and primary physical custody of the three children, with extended alternate weekend visitation with the father. This agreement was later incorporated into a custody order in January 2005 and the judgment of divorce in March 2007. In April 2010, the father filed a petition for modification seeking joint legal and primary physical custody of the younger daughter and joint legal and shared physical custody of the son. Following trial, Family Court dismissed the petition on the ground that the father had failed to establish a sufficient change in circumstances. The Appellate Division affirmed. It observed that the father's petition alleged that the two younger children wished to spend more time with him, that the mother was verbally and physically abusive, and that the mother disappointed the younger daughter by failing to bring her to an out-of-state award ceremony.
As the allegations of abuse were unsubstantiated and the children's preferences standing alone did not establish a sufficient change in circumstances, there was a sound and substantial basis in the record supporting Family Court's determination. The Appellate Division observed that the trial testimony and decision referenced events occurring prior to the existing custody order. As the father argued, relying upon those prior events would be improper in assessing whether there had been a change in circumstances. However, it did not find that the Courts analysis relied upon these extraneous references. It rejected that the father's contention that Family Court's error in failing to afford him the opportunity to make a closing statement required
reversal (see CPLR 4016[a] ). At the conclusion of the fact-finding hearing, the
father's counsel stated that he wished to make a short closing statement only if
the mother did so, and the court indicated that arrangements would be made
following the Lincoln hearing. The mother subsequently submitted a written closing
statement; the father neither responded to this submission nor requested a further
appearance, and more than four weeks passed before the decision was rendered.
Considering these circumstances, and that the court was fully familiar with the
facts of the case as well as the parties' arguments, no reversible error occurred
(See Matter of Saggese v. Steinmetz, 83 A.D.3d 1144, 1145 [2011; Lohmiller v. Lohmiller, 140 A.D.2d 497, 498 [1988] ).

On Motion to Dismiss Family Offense Petition Pursuant to CPLR 3211(a) (7) Court Should Wade Through Allegations and Dismiss Only Those Which Do Not Sufficiently Allege Conduct That Constitutes a Family Offense

In Matter of Pamela N v Neil N, --- N.Y.S.2d ----, 2012 WL 1033487 (N.Y.A.D. 3 Dept.), Petitioner (mother) and respondent (father) were married in 2003 and had twins in 2005. The father was awarded custody by order of August 20, 2010. In December 2010, the mother filed two family offense petitions against the father, and filed a third such petition in February 2011, as well as a modification of custody petition. Family Court granted the father's motions to dismiss the two December 2010 family offense petitions, and also dismissed the custody petition given that a divorce action was then pending in Supreme Court. The court also dismissed the February 2011 family offense petition, on the father's motion, for failure to state a cause of action (CPLR 3211[a][7]
), without a hearing. The Appellate Division observed that presented with a motion to dismiss pursuant to CPLR 3211(a)(7), which is proper here in that family offense proceedings under Family Ct Act article 8 are civil in nature a court may freely consider affidavits submitted by the petitioner to remedy any defects in the petition, and the criterion is whether the proponent of the pleading has a cause of action, not
whether he or she has stated one. ( Guggenheimer v. Ginzburg, 43 N.Y.2d at 275). A family offense proceeding is originated by filing a petition alleging that the respondent committed one of the enumerated offenses against, among others, a spouse, former spouse or child. In her pro se February 2011 petition, the mother checked all boxes on the petition form listing those enumerated offenses. Her attached affidavit and handwritten answers contained many conclusory, irrelevant, ambiguous and insufficiently specific allegations, including claims against individuals who were not "members of the same family or household". However, liberally construing the petition and giving it the benefit of every favorable inference (Leon v. Martinez, 84
N.Y.2d at 87-88), the Court found that while it was inartfully drafted, it adequately
alleged, at the very least, that the father had stalked and harassed her. For example, the mother alleged in her affidavit that on November 23, 2008, the father came to her house while she had the children and threatened and harassed her, making excuses for his presence; he then called her three times that evening and continued to make excuses for coming to her house, leading her to file a domestic incident report with police the next day. These allegations described the type of conduct required to originate a family offense proceeding (Family Ct Act 821[1] ) in that they adequately allege, so as to survive a motion to dismiss for failure to state a cause of action (CPLR 3211 [a][7] ), that the father, acting with the requisite intent that is inferable from the alleged circumstances, engaged in a course of conduct which alarmed or
seriously annoyed the mother, which served no legitimate purpose, thereby
committing the offense of harassment in the second degree (Penal Law 240.26
[3]) Additionally, the allegations, if credited, were sufficient to allege that respondent committed the offense of stalking in the fourth degree (Penal Law 120.45[1], [2] ).
The Appellate Division agreed with the mother and attorney for the children that Family Court should not have dismissed the petition in its entirety but, rather, should have waded through the myriad allegations and dismissed with specificity only those
which did not sufficiently allege conduct that constituted harassment, stalking or
any other act listed in Family Ct Act 821(1). The order granting respondent's motion to
dismiss the February 18, 2011 petition was reversed, the motion denied and matter remitted to the Family Court for further proceedings not inconsistent with the Court's decision.

Family Court Lacks Subject Matter Jurisdiction to Enforce Purported Modification Agreement Not Incorporated into Judgment

In Hirsch v Schwartz, --- N.Y.S.2d ----, 2012 WL 1033520 (N.Y.A.D. 3 Dept.) Petitioner (mother) and respondent ( father) were divorced in 2009 and had two children from the marriage (born in 2001 and 2003). The parties' 2007 separation agreement, which required the father to pay 96% of all child-care expenses, was incorporated but not merged into their 2009 judgment of divorce. Shortly thereafter, the mother sent the
father a letter offer which proposed a reduction of the father's child-care
expenses from 96% to 75%. Although the father did not sign and return the letter
offer he made at least two full reimbursement payments and several partial
payments in the months that followed. The mother subsequently commenced this proceeding seeking to enforce the child support provisions of the judgment of divorce. In response, the father argued that the mother's letter offer served to modify his support obligations and that the terms of this subsequent agreement should be enforced. Following a trial, a Support Magistrate found that the letter offer constituted a valid modification of the parties' separation agreement that reduced the father's child-care expenses to 75%, and ordered arrears in the amount of $2,625.25. Upon the mother's written objections, Family Court concluded that the Support Magistrate lacked the
authority to enforce the terms of the purported modification agreement and,
therefore, the provisions in the judgment of divorce concerning the father's
child-care obligations controlled. The Appellate Division affirmed. It observed that Family Court, as a court of limited jurisdiction, may only enforce or modify child support provisions contained in a valid court order or judgment ( Family Ct Act 422, 461[b][I]; 466; Matter of Johna M.S. v. Russell E.S., 10 NY3d 364, 366 [2008]; Matter of Brescia v. Fitts, 56 N.Y.2d 132, 139 [1982]; Kleila v. Kleila, 50 N.Y.2d 277, 282 [1980] ). Thus, even assuming that the mother's letter offer constituted a valid modification of the parties' separation agreement, Family Court did not have subject matter jurisdiction to enforce the amended agreement which stands as an independent contract between the parties .

2012-04-02T10:04:00.000-04:00

New Child Support Standards Chart released April 1, 2012

According to the Child Support Standards Chart, [LDSS 4515 (4/12)] released April 1, 2012, prepared by New York State Office of Temporary and Disability Assistance, Division of Child Support Enforcement, the 2012 poverty income guideline amount for a single person as reported by the United States Department of Health and Human Services is $11,170 and the 2012 self-support reserve is $15,080.

The combined parental income amount is $136,000. It will be adjusted every two years (effective January 31st for applicable years) based on the average annual percent changes to the federal Department of Labor’s Consumer Price Index for Urban Consumers. The adjusted combined parental income amount will be announced and available at January 31st until such time as this revised form is released. st for applicable years) based on the average annual percent changes to the federal Department of Labor’s Consumer Price Index for Urban Consumers. The adjusted combined parental income amount will be announced and available at www.childsupport.ny.gov until the revised Child Support Standards Chart is released.

The Child Support Standards Chart is released each year on or before April 1. The income tables are used to determine the annual child support obligation amount pursuant to the provisions of Chapter 567 of the Laws of 1989. The chart may be downloaded from https://newyorkchildsupport.com/dcse/pdfs/cssa_2012.pdf.

Res Judicata Bars Court from Considering Fathers Biological Parental Status Which Holds He Has No Standing to Seek Visitation with Child

In Matter of Weaver v Durfy--- N.Y.S.2d ----, 2012 WL 895497 (N.Y.A.D. 4 Dept.) Family Court dismissed the Petitioners prior petition seeking to establish paternity of the child. The court found that respondents were married when the child was born and at the time of the hearing on the paternity petition and that, based upon petitioner's admissions, he had acted as a friendly neighbor to the child, although he had regular and significant contact with the child with respondents' consent. The court therefore determined that it was not in the best interests of the child to disrupt her legitimate paternal relationship with respondent father. After he perfected his appeal from the prior order dismissing the paternity petition, petitioner discontinued that appeal based on his agreement with respondents that respondent mother and the child would participate in DNA testing, which revealed a probability of 99 .99% that petitioner was the child's biological father, and that respondents would permit petitioner to visit with the child. The child subsequently began to receive Social Security benefits as petitioner's biological child. Thereafter, respondents refused to permit petitioner to visit with the child, and he filed a petition seeking, inter alia, visitation based upon the DNA test results. Family Court determined that the petition was barred by res judicata and dismissed the petition. The Appellate Division affirmed. It observed that the resolution of the proceeding presented a coalescence of the various societal interests promoted by the doctrine of res judicata, particularly the need for finality, stability and consistency in family status determinations. Thus, the court properly determined that it was prohibited by the doctrine of res judicata from considering petitioner's biological parental status as a basis for determining his standing to seek visitation with the child and as petitioner has no legal standing to seek visitation with the child, the court properly dismissed the petition.

Where Agreement Required Decedent to Name Children as the "Joint Irrevocable Designated Beneficiaries" He Was Without Authority to Name Any Other Person as a Partial or Sole Beneficiary

In Johnson v New York State and Local Retirement System, --- N.Y.S.2d ----, 2012 WL 895707 (N.Y.A.D. 4 Dept.) Plaintiff Wendy Johnson and Dan Johnson (decedent) were divorced in 1998. During the divorce action, they executed a matrimonial settlement agreement, pursuant to which they were required to name their children, plaintiffs Dane Johnson and Danika Johnson, as "joint irrevocable designated beneficiaries" of, inter alia, the death benefits provided by their retirement plans. That agreement was subsequently incorporated but not merged into the judgment of divorce. In March 1998, shortly before executing the matrimonial settlement agreement, decedent had named his then girlfriend, defendant Kimberly Leone-Johnson, as a one-third beneficiary of his New York State Retirement Plan death benefit and each of his children as a one-third beneficiary. Leone was not removed as a beneficiary after the judgment of divorce was entered in May 1998 and, moreover, in June 1998 decedent purportedly designated Leone as the sole beneficiary of his retirement plan death benefit. In July 2000 decedent and Leone executed a prenuptial agreement and were married. Pursuant to that agreement, decedent and Leone expressly waived all rights and claims to each other's pensions and retirement plans. In June 2006, decedent and Leone executed a separation agreement, which contained clauses that, inter alia, reaffirmed the pension and retirement plan waivers contained in the prenuptial agreement and mutually released and waived all rights that decedent and Leone had to each other's estate. Decedent and Leone allegedly reconciled without divorcing just prior to decedent's death in October 2008. No beneficiary changes were made to decedent's retirement plan death benefit after Leone was allegedly named the sole beneficiary in 1998. After decedent died, however, defendant New York State and Local Retirement System (System) notified Leone that decedent's designation naming her as the sole beneficiary was invalid and that the System intended to disburse the death benefit to Leone and the children in accordance with decedent's March 1998 designation. Plaintiffs commenced an action seeking to designate the children as the joint irrevocable beneficiaries of decedent's retirement plan death benefit in compliance with the matrimonial settlement agreement and to remove Leone as a beneficiary thereof. They moved for summary judgment and Supreme Court determined that Leone and the children were each entitled to one-third of decedent's retirement plan death benefit. The Appellate Division held that Leone was not entitled to any part of decedent's retirement plan death benefit. The matrimonial settlement agreement clearly required decedent to name the children as the "joint irrevocable designated beneficiaries" of his retirement plan death benefit. As a result of that agreement, decedent was without authority to name any other person as a partial or sole beneficiary of such death benefit. Moreover, any right to that benefit that Leone would have acquired by virtue of being married to decedent was waived by the prenuptial and separation agreements. The court erred in determining that Leone's waiver of her interest in the retirement plan death benefit was not "explicit, voluntary and made in good faith" ( Silber v. Silber, 99 N.Y.2d 395, 404,cert denied 540 U.S. 817). The contention of Leone that decedent's obligation to name the children as beneficiaries of his retirement plan death benefit was solely to provide security for his child support obligation was contrary to a fair interpretation of the matrimonial settlement agreement. It rejected Leone's further contention that her separation agreement with decedent became void when they allegedly reconciled prior to his death. By its terms, the separation agreement could only be canceled in writing.

Improper for Court to Take Judicial Notice of Factual Material in Filed Net Worth Statement.

In Halse v Halse, --- N.Y.S.2d ----, 2012 WL 850604 (N.Y.A.D. 3 Dept.) Plaintiff commenced an action for divorce in September 2008 and, thereafter, a pendente lite order was entered which, among other things, directed the parties to submit to drug testing and prohibited the parties from selling or transferring any assets. In June 2010, plaintiff moved to have defendant held in contempt, alleging that she had sold various marital assets and was using drugs and alcohol. After a nonjury trial, Supreme Court issued a judgment of divorce, ordered the equitable distribution of marital assets, awarded maintenance to defendant and ordered plaintiff to pay child support for the parties' two children. In a separate order, the court adjudged defendant to be in contempt of the pendente lite order, but imposed no punishment.
The Appellate Division held that substantial deference is accorded to the trial court's determination regarding equitable distribution so long as the requisite statutory factors were considered. In this case, it was apparent that Supreme Court considered all of the relevant factors before equitably distributing the parties' marital assets; of particular note was the long duration of the marriage and the parties widely disparate future financial circumstances. Moreover, contrary to plaintiff's contention, the record reflected that Supreme Court adequately addressed defendant's dissipation of marital assets. Notably, the court awarded plaintiff adjustments to compensate him for the value of various items of marital property that had been improperly sold by defendant, including $12,500 representing half of the value of a backhoe. As for the marital residence, it was not persuaded by plaintiff's contention that he should have been awarded an adjustment based upon defendant's alleged dissipation of that asset. While the evidence did indicate that defendant had not maintained the residence in optimal condition, there was also evidence that the real estate market was overburdened with properties in the residence's price range and that market conditions, in general, had declined. As such, there was no definitive proof that the approximately $200,000 decline in the market value of the house was due solely to defendant's actions. Further, although plaintiff opined that the residence needed between $45,000 and $62,000 in repairs to become marketable, he submitted no proof to support these figures. In awarding defendant maintenance, Supreme Court considered the statutory factors and determined that a maintenance award to defendant in the amount of $3,000 per month for two years and then $2,500 per month for three years was appropriate. Although defendant did not offer a statement of net worth at trial, the record contained sufficient evidence regarding both parties' assets and liabilities to permit it to conclude that the durational maintenance award was a provident exercise of the court's discretion The Appellate Division pointed out in a footnote that although defendant filed a statement of net worth with Supreme Court in 2008, it was not proper for the court to take judicial notice of the factual material contained therein (citing Matter of Grange v. Grange, 78 A.D.3d 1253, 1255 [2010] ).

Failure to Disclose Financial Information and Lack of Counsel Insufficient to Set Aside Prenuptial Agreement

In Cohen v Cohen, --- N.Y.S.2d ----, 2012 WL 851206 (N.Y.A.D. 1 Dept.) the Appellate Division held that plaintiff's alleged threat to cancel the wedding if defendant refused to sign the agreement did not constitute duress ( Colello v. Colello, 9 A.D.3d 855, 858 [2004]). Nor did the absence of legal representation establish overreaching or require an automatic nullification of the prenuptial agreement, especially as the evidence showed that the agreement was prepared by an independent public official unaligned with either party. Plaintiff's alleged failure to fully disclose his financial situation was also insufficient to vitiate the prenuptial agreement ( Strong v. Dubin, 48 A.D.3d 232, 233 [2008] ). There was no evidence that plaintiff concealed or misrepresented any financial information or the terms of the agreement. To the extent the prenuptial agreement, to be enforceable in New York, must contain an acknowledgment sufficient to entitle a real property deed to be recorded, this requirement was satisfied by plaintiff's filing, at the direction of the court, of a certificate of conformity attesting to the credentials of the French official who drafted the agreement, and certifying that his proof of acknowledgment of the agreement conformed to the laws of France (Real Property Law 301-a).

Where Supreme Court Refers Issue to Family Court, it Has Jurisdiction to Determine Issue of Child Support During Divorce Action.

In Francois v Francois, --- N.Y.S.2d ----, 2012 WL 833185 (N.Y.A.D. 2 Dept.) the Appellate Division held that the Family Court had subject matter jurisdiction to hear and determine the issue of child support during the pendency of the divorce action. When an action for divorce is pending, the Family Court may exercise its jurisdiction only in certain situations, such as where the Supreme Court refers an application for support to it ... or where the Supreme Court has not acted concerning support and the spouse is likely to need public assistance" ( FCA 464). Here the Supreme Court referred all issues of child support to the Family Court for a hearing and determination .Accordingly, the Family Court properly exercised its jurisdiction over the child support proceeding.

Spouse generally obligated to pay 50% share of income tax liability if spouse benefits from use of funds or delay in paying tax liability. Imputation of income may be based upon testimony of expert. Provision for Future Modification Improper.

In Lago v Adrion,--- N.Y.S.2d ----, 2012 WL 833203 (N.Y.A.D. 2 Dept.), the parties were married on September 10, 1995, and had one child, born October 28, 1996. The plaintiff wife commenced the action by filing a summons and complaint on September 19, 2006, after 11 years of marriage. The parties agreed on joint custody of the child and the primary physical residence of the child with the plaintiff, and consented to a divorce on the ground of constructive abandonment. In March 2010 the parties proceeded to a nonjury trial on certain financial issues. At the conclusion of the trial, the Supreme Court found that the defendant was a tax attorney with a current income of $475,000 per year, that the plaintiff was not working, and that the plaintiff had a masters' degree in architecture from Harvard University and performed some doctoral work at the Massachusetts Institute of Technology. Based upon her educational qualifications and experience, and expert testimony, the Supreme Court imputed income of $80,000 per year to the plaintiff. The Supreme Court determined that the defendant was obligated to pay $2,041 per month in basic child support based on the plaintiff's imputed income of $80,000 per year, and a finding that the child support percentage should only be applied to the first $150,000 of the defendant's annual income. The supplemental findings of fact stated that "[t]o the extent that this court may have deviated from the guideline standards," it did so for the reasons that the child was "thriving" on the pendente lite child support of $2,041 per month, and the parties' standard of living during the marriage was that of a "middle-class" family. The judgment appealed from further provided that "should the Defendant lose his law license by suspension, revocation, or otherwise, and be unable to sustain his current level of income, such event shall constitute a sufficient change of circumstances warranting application for downward modification" of child support. With respect to the equitable distribution of property, the Supreme Court concluded that the parties incurred Federal tax liability of $430,476 for 2005 and 2006 up until September 19, 2006, and New York State tax liability of $38,000 for that same period, which constituted a marital debt which should be divided equally between the parties. This tax liability included interest and penalties. The Supreme Court held that the plaintiff's one-half share of that tax liability was $234,238.
The Appellate Division held that Supreme Court properly imputed $80,000 in annual income to the plaintiff based upon her education and experience, and the testimony of the defendant's expert. "In determining a child support obligation, a court need not rely on a party's own account of his or her finances", but may, in the exercise of its considerable discretion, impute income to a party based upon his or her employment history, future earning capacity, and educational background , and what he or she is capable of earning, based upon prevailing market conditions and prevailing salaries paid to individuals with the party's credentials in his or her chosen field . Further, imputation of income may be based upon the testimony of an expert regarding a party's ability to earn an income. Here, the Supreme Court's imputation of income was supported by unrefuted expert testimony and testimony regarding the plaintiff's education and experience.
The Court observed that effective January 31, 2010, the Child Support Standards Act provides that the applicable child support percentage should be applied to the first $130,000 of combined parental income (DRL 240[1-b] [c][2]; SSL111-i[2][b]). Where the parents' income exceeds the income cap, as in this case, the amount of child support in excess of the income cap is determined based upon a consideration of factors set forth in DRL 240 (1-b)(f) "and/or the child support percentage" (DRL 240 [1-b][c][3]). The factors set forth in Domestic Relations Law s 240(1-b)(f) include, in pertinent part, the financial resources of both parents, the needs of the child, the standard of living the child would have enjoyed had the marriage not been dissolved, nonmonetary contribution that the parents will make to the care and well-being of the child, and any other factor which the court determines to be relevant to the case. Here, the evidence at the trial supported the Supreme Court's conclusion that, during the marriage, the child enjoyed a "middle-class" lifestyle, and her needs were met by the pendente lite child support award of $2,041 per month. The application of the child support percentage to the first $150,000 of the defendant's annual income, and the amount of child support awarded was supported by the record.
The Appellate Division held that the provision of the judgment of divorce which stated that, "should the Defendant lose his law license by suspension, revocation, or otherwise, and be unable to sustain his current level of income, such event shall constitute a sufficient change of circumstances warranting application for downward modification" of child support, was improper. ( Matter of Knights v. Knights, 71 N.Y.2d 865). This provision of the judgment was deleted.
The Appellate Division observed that the income tax liability of the parties was subject to equitable distribution, but equitable distribution does not necessarily mean equal distribution. A spouse is generally obligated to pay his or her 50% share of income tax liability during the marriage if the spouse benefits from use of the funds or the delay in paying the tax liability. However, if one spouse makes the financial decisions regarding the income tax return, and earned virtually 100% of the parties' income during the period, the court, in its discretion, may direct that spouse to pay the entire tax liability. The defendant acknowledged that he handled all tax matters for the parties during the marriage, and attributed his inability to pay his taxes from his current income to the fact that his expenses were too high, in part because he had to maintain a rented home for his family while the parties' house in Pawling was being renovated. The evidence adduced at trial indicated that it was his decision to move the parties' full-time residence to the house in Pawling, despite the fact that the house was in "bad shape." Under the circumstances of this case, it could not be said that the plaintiff derived a benefit from the defendant's failure to pay the taxes . The Appellate Division held that Supreme Court, in its discretion, should have directed the defendant to pay the entire tax liability.

Supreme Court Agree’s with Justice Falanga - Holds Plaintiff's Self-serving Declaration about State of Mind Is All Required for Divorce on “Irretrievable Breakdown” Ground, Disagreeing with Schiffer v. Schiffer and Strack v. Strack.

In Vahey v Vahey, --- N.Y.S.2d ----, 2012 WL 832350 (N.Y.Sup.) Supreme Court granted the defendant’s motion to dismiss the action pursuant to CPLR 3211(a)(7) to the extent that the first and second causes of action, alleging cruel and inhuman treatment and constructive abandonment, respectively, were dismissed.
Supreme Court observed that CPLR 3016(c) requires that in an action for divorce, "the nature and circumstances of a party's alleged misconduct, if any, and the time and place of each act complained of, if any, shall be specified in the complaint ..." In this case, the plaintiff has sought a divorce on three grounds: cruel and inhuman treatment, and an irretrievable breakdown in the marital relationship.
The Court agreed with the defendant that a claim of cruel and inhuman treatment was not made out, as it did not specify the time and place of the misconduct, and, in addition, did not allege conduct that rises to the required level. All that was alleged was that the wife called the husband vile names and used obscene language, told the plaintiff husband that she didn't want to be married to him any more, and that he was not a good husband. This was patently insufficient and this claim was dismissed.
The plaintiff alleged in his verified complaint that "The relationship between Plaintiff and Defendant has broken down irretrievable [sic] for a period of at least six months."The Supreme Court disagreed with the defendant that CPLR 3016(c) and the cases that cite that statute mandate factual allegations supporting this claim. CPLR 3016(c) refers to the necessity of pleading allegations of "misconduct." Domestic Relations Law 170(7) permits a party to seek a divorce upon a sworn statement by that party that the marital relationship between husband and wife has broken down irretrievably for a period of at least six months. This has been pled. This section does not require the plaintiff to allege that the other party was responsible for the breakdown or had misbehaved in any way. The very essence of the law is to dispense with the necessity of proving misconduct by the other spouse. CPLR 3016(c) speaks only of pleading acts of misconduct, and misconduct does not have to be alleged under Domestic Relations Law 170(7). Therefore, it is more accurate to say that CPLR 3016(c) continues to apply where marital fault is alleged, but does not apply when the plaintiff alleges a breakdown in the relationship, as there is no need to cast blame on the other party. Given the clear language of the statute regarding the need to prove "misconduct," the lack of an amendment to CPLR 3016 indicated that the Legislature was not requiring a party asserting the new "no-fault" ground to plead and prove facts in support of the irretrievable breakdown. If its intention were otherwise, such an amendment to the divorce action pleading requirements would be needed. Rather, all that is required is the sworn statement of the irretrievable breakdown, a statement that finds no counterpart in any of the "fault" grounds. Accordingly, the motion to dismiss was denied as to the claim made under Domestic Relations Law 170 (7). The Court noted that as the Legislature in adopting section 170(7) has not required the pleading of objective facts of the breakdown, but has required instead no more than a sworn statement of a breakdown by the plaintiff, it did not appear that a plaintiff can be put to his or her proof on the subject. Under this ground the plaintiff's sworn belief about the state of the relationship must be deemed sufficient, for if not the party seeking the divorce on this basis could be put through the same type of litigation regarding the martial relationship that this legislative addition was clearly designed to avoid. The Court agreed with the analysis set forth by Justice Falanga that the section 170(7) ground is inherently subjective in nature, and "a plaintiff's self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage on the ground that it is irretrievably broken." D.R.C. v. A.C., 32 Misc.3d 293 (Sup Ct Nassau County 2011). The Court disagreed with the views expressed in Schiffer v. Schiffer, 33 Misc.3d 795 (Sup Ct Dutchess County, 2011) and Strack v. Strack, 31 Misc.3d 258 (Sup Ct Essex County 2011).
The Court denied that cross motion for a sharing of family expenses pro rata based upon the parties' income at the commencement of the action. There was no demonstration that the reasonable needs of the movant or of the parties' children were not being met, as all continued to reside together in the marital residence, and it was apparent that the bills were being paid. The basis of the request for this relief was that plaintiff believed it unfair that the defendant, who retired from the New York City Police Department after the action was commenced, now asserted that she no longer had her full salary and thus had less to contribute to household expenses. Plaintiff, in effect, wanted the Court to "balance the scales" by imputing income to the defendant and to direct specific percentages based on such imputed income. This is not the purpose of a pendente lite award. Here, there was no proven need for support on the part of the moving party, especially in view of the fact that even before the defendant's retirement the plaintiff's income exceeded hers.

Important New Decisions - March 21, 2012

2012-03-21T11:43:00.000-04:00

Temporary Maintenance Guidelines Income Cap Raised from $500,000 to $524,000.
The "cap" on each spouses annual income, to be utilized in calculating temporary maintenance orders, has increased from $500,000 to $524,000 effective January 31, 2012 in accordance with Domestic Relations Law § 236 [B][5-a][b][5] . (See Temporary Maintenance Guidelines Worksheet, revised January 31, 2012 at www.nycourts.gov/divorce/TMG-worksheet.pdf or Temporary Spousal Maintenance Guidelines Calculator, revised January 31, 2012 at www.nycourts.gov/divorce/calculator.pdf) Beginning January 31, 2010 and every two years thereafter, the income cap increases by the product of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the united states department of labor bureau of labor statistics for the two year period rounded to the nearest one thousand dollars. The office of court administration is required to determine and publish the income cap. See Domestic Relations Law § 236[B], [5-a][b][5].

Downward Modification of Child Support Based on a Loss of Employment Due to Injury Granted Where Father Demonstrated Injuries Severely Limited His Ability to Resume His Veterinary Practice
In Smith v Smith, --- N.Y.S.2d ----, 2012 WL 88100 (N.Y.A.D. 3 Dept.) pursuant to a 2002 judgment of divorce, defendant (mother) was awarded sole custody of the parties' four children. Pursuant to the Child Support Standards Act (DRL 240[1-b] ), plaintiff (father) was directed to pay $2,887 per month in child support based on his imputed income of $160,000 as the sole proprietor of a veterinary practice. The mother, who had no income, was awarded durational maintenance. In 2007, the father was seriously injured in a motor vehicle accident and, in 2009, he sought a downward modification of his child support payments, alleging that there had been a substantial change in circumstances because, among other things, his injuries severely limited his ability to resume his veterinary practice and to perform veterinary services. After a hearing, Supreme Court granted the motion and recalculated the father's monthly child support payments under the Child Support Standards Act to be $634.96 based on the mother's present income of $49,605 from her work as a part-time dental hygienist and the father's income of $24,877.20 from his limited practice and his Social Security disability benefits. The mother appealed, contending that, despite the father's injuries and disability, the motion for a downward modification should have been denied because the father could provide support through some other type of veterinary practice. The Appellate Division affirmed. It observed that she did not present any evidence contradicting the father's proof of his limited ability to work or supporting her claim that he could hire other veterinarians to assist in running his practice. While a request for a downward modification of child support based on a loss of employment due to injury or illness may be denied where the parent seeking the modification still has the ability to provide support through some other type of employment Supreme Court credited the father's testimony that he is no longer able to work full time at his own practice, could not afford to hire another person to assist him in his practice and was not employable at another practice because of his condition. Giving deference to Supreme Court's credibility determinations there was no basis to disturb its determination that the father demonstrated a significant change in circumstances warranting a downward modification of his child support obligation. The Appellate Division rejected the mothers argument that the presumptively correct amount of child support was unjust or inappropriate and that, as a result, the father's personal injury settlement should have been considered in determining his child support obligation The children received derivative Social Security benefits, and the evidence established that most of the father's settlement had already been used to pay the father's child support arrears, continue his child support payments and otherwise mitigate his financial problems.

Appellate Division Generally Accords Deference to Supreme Court's Determination Regarding Amount and Duration of Maintenance as Long as the Court Considers the Statutory Factors and Provides a Basis for its Conclusion
In O’Connor v O’Connor, --- N.Y.S.2d ----, 2012 WL 88226 (N.Y.A.D. 3 Dept.) the parties in this matrimonial action were married in 1986, they had three children (one born in 1990 and twins born in 1992), and plaintiff commenced this action in August 2009 premised upon defendant's abandonment. Following a nonjury trial, Supreme Court, as relevant to this appeal, awarded plaintiff maintenance of $1,000 per month until she was eligible for Social Security retirement benefits in January 2022, subject to earlier termination upon various conditions, including if she remarries or the commencement of her receipt of her share of defendant's pension. In its decision and order, the court also partially granted plaintiff's motion for counsel fees, awarding $7,500 of the over $20,000 in then unpaid counsel fees and disbursements. These awards were included in the April 2011 judgment of divorce. Defendant, challenging the duration of maintenance, appealed from the judgment, which prompted plaintiff to cross-appeal therefrom and to move for an award of appellate counsel fees. Supreme Court, in July 2011, granted plaintiff $900 in counsel fees for making the motion and $9,000 for appellate counsel fees. Defendant appealed from the July 2011 order.
The Appellate Division stated that while its authority is as broad as Supreme Court's regarding maintenance it generally accords deference to Supreme Court's determination regarding the amount and duration of maintenance" 'as long as the court considers the statutory factors and provides a basis for its conclusion. Maintenance is appropriate where, among other things, the marriage is of long duration, the recipient spouse has been out of the work force for a number of years, has sacrificed her or his own career development or has made substantial noneconomic contributions to the household or to the career of the payor. The fact that a wife has the ability to be self-supporting by some standard of living does not mean that she is self-supporting in the context of the marital standard of living. Here, Supreme Court discussed each of the statutory factors. This was a long-term marriage of 24 years and plaintiff was 50 years old. Although she had a marketing degree and had a job related to her degree early in the marriage, she passed on a promotion because defendant would not move, and later she gave up her position in order to raise the parties' children. She has not worked in marketing since early 1992. At the time of the divorce, she worked as a school aide and her earnings for 2009 and 2010 were about $14,000 and $18,000, respectively. Supreme Court accepted her testimony that she would need considerable educational updating of an unknown duration and cost before being able to return to a marketing position or another professional field. Defendant's 2010 income was about $78,854, but Supreme Court noted that he did not work available overtime which, in the prior four years, resulted in income levels between approximately $95,000 and $117,000. Defendant's child support obligation for the oldest child ended in August 2011 and the remaining obligation ceases in June 2013. In light of Supreme Court's discussion of the pertinent factors, the length of the marriage, career sacrifice by plaintiff, large discrepancy in current earning power and plaintiff's age, the Appellate Division was unpersuaded that the duration of maintenance determined by Supreme Court should be modified. It rejected defendants argument that it was error to order him to pay counsel fees for the underlying action and the appeal. It is within the discretionary power of Supreme Court to award counsel fees and, in doing so, "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" ( DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 881 [1987]). Supreme Court discussed the financial position of the parties, including defendant's superior earning capacity, and otherwise adequately explained its reasons for awarding counsel fees. Although plaintiff did not pursue her cross appeal, plaintiff's counsel stated in an affirmation that the cross appeal involved a narrow issue that appellate counsel had indicated did not affect her fee. It found no abuse of discretion by Supreme Court in the award of counsel fees .

Equitable Distribution and Counsel Fees Denied Where Parties Elected Not to Treat Marriage as an Economic Partnership
In Medley v Medley, 2011 WL 6975934 (N.Y.Sup.), 2011 N.Y. Slip Op. 52457(U) (Table, Text in WESTLAW), Unreported Disposition, the action was commenced August 2007 for absolute divorce by Plaintiff, Claudette Medley, against Defendant, Maurice Medley. A divorce was granted in favor of Defendant after inquest on the grounds of constructive abandonment. There were no children of the marriage. A trial was held on the ancillary issues of equitable distribution and counsel fees. The parties were married in a civil ceremony on March 5, 1997, after a brief courtship. At the time of the marriage, Plaintiff was in the United States with temporary legal status and Defendant was an American citizen. Prior to the marriage, each party resided in and owned their own home. Plaintiff's home, 141-15 255th Street, Queens, N.Y. ("255 Street property"), was jointly owned with a friend and Defendant was the sole owner of 130-60 221st Street, Queens, N.Y. ("221 Street property"). The parties agree that they lived together at 130-33 221st Street, Queens, N.Y. ( "130-33 Street property"), from March 2005 until July 7, 2007. The parties' living arrangements between March 1997 and 2005 were disputed and was the core issue at trial. Both parties engaged in real estate investments. Plaintiff as a real estate sales agent and owned real estate businesses. Defendant bought and sold investment properties. Except for one joint ownership, all their investments, businesses were conducted separately by each.
Supreme Court found that Plaintiff migrated to the United States in 1988 under a temporary Visa with a work permit. She was employed in administration at a Hospital. In 1994, Plaintiff purchased the 255 Street property, jointly with a friend. Her friend and co-owner subsequently deceased and the one half share was inherited by her friend's daughter. Upon the death of Plaintiff's friend, the mortgage insurance paid off the mortgage on the 255 Street property. Plaintiff later refinanced the property by herself and solely kept the undisclosed proceeds. It was unclear how Plaintiff, solely, refinanced the joint ownership 255 Street property. The daughter did testify that she was aware the property was refinanced; however, no documents were executed by the daughter nor did she receive any of the undisclosed proceeds. After three months of dating, in early 1997, Plaintiff showed Defendant a letter from Immigration and Naturalization Service ("INS") informing Plaintiff that her Visa status had expired. The parties ensued in a conversation on how to change Plaintiff's status or whether Plaintiff will leave the United States to, what Plaintiff classified as, "her father's farm". After this conversation, the parties immediately planned the wedding. The day before the marriage, at Plaintiff's residence, the parties discussed drafting a pre-nuptial agreement. Plaintiff wrote a handwritten document. The document entitled, Prenuptial Agreement between Maurice Medley and Claudette as of 3/3/97,' states "that neither party would take any legal action to seek the other's assets". The agreement, though not acknowledged, is signed by both parties and dated March 4, 1997. One day later, the parties were married, March 5, 1997. It was undisputed that the parties resided together from March 2005 until July 2007 at the 130-33 Street property. Plaintiff had one child, not of the marriage, who resided with Plaintiff and one other family member. There was no document placed into evidence to show that the parties filed joint tax returns or commingled their incomes and bank accounts. Although no tax records were placed into evidence, as Plaintiff claimed joint filing, she contradicted her testimony by acknowledging that as of 2003 she filed as head of household. Plaintiff filed as head of household to show diminished income so that her son could receive financial aid and a scholarship from the private school he attended in New Jersey. The tuition for the school was approximately $28,000.00 to $30,000.00 annually. As a result of Plaintiff's tax filing and the financial application she misrepresented to the school, her son obtained the scholarship and she paid $2,400.00 annually as a single parent.
Plaintiff obtained a Bachelor of Arts degree from York College in 2004. From 1997 through 2005, she earned approximately $30,000.00 annually from Memorial Sloan Kettering. In 2005, her salary increased to $50,000.00. Plaintiff obtained her real estate license in 1997 and began real estate sales. In addition to Plaintiff's earnings from the hospital, she earned additional income ranging through 2010 from as high as $50,000.00 to low as $2,000.00. Consistent with the document signed on March 4, 2005, Plaintiff kept her income separate and apart from Defendant and some of this income was not disclosed prior to the commencement of this case.
All income received from the properties were kept and used by Defendant towards the mortgages and carrying charges on the properties. Although there was a marriage on paper, the parties communication and financial partnership was non existent. Plaintiff's incomes were either not disclosed or shared. Defendant's income although known was not shared.
The credible evidence showed that the parties lived their lives in a manner consistent with the written document they signed in March 1997. Each engaged in separate investment ventures, buying and selling investment properties and kept all their incomes separate from each other. Plaintiff did not disclose any of her real estate investment income prior to trial to Defendant although she claimed entitlement to Defendant's. Defendant did not claim any entitlement to Plaintiff's income, investments or license claiming this was the intent of the parties. Throughout the marriage, there was no credible evidence that the parties spent any significant time together but rather maintained a separate business lifestyle. At most the parties had a sparse emotional life but it was impacted by a clear separate financial life. What contribution Plaintiff made to the investment property purchased with Defendant's funds was unproven since the record was devoid of any documents to support Plaintiff's claim except her testimony.
The Court found that there were several innuendoes of the purpose and true meaning of the parties nuptial. Their arrangement was a sparse emotional life with no financial partnership. For an approximate ten year marriage, the parties lived together for a total of two years and four months just prior to filing of the action. There was evidence that Plaintiff filed deceptive and misrepresented legal school documents and tax returns. Although the Court would not define or marshal what is a "married life". The cliche "you know it when you see it" could be inferred in this case. These parties engaged in a pattern of behavior that was inconsistent of any semblance of a marriage life in its ordinary and reasonable meaning. Plaintiff failed to present any documentary proof or credible evidence for her claims of entitlement. It was undisputed that during the marriage, Defendant purchased three properties, titled solely in his name. Defendant claimed that Plaintiff failed to meet her burden to establish that she made any contribution to these properties, thus warranting an equitable distribution of the value of these real properties. Defendant made no claim of an equitable distribution of Plaintiff's businesses or license.
Looking to DRL 236(B)(1)(c), it was clear that all property acquired during a marriage acquired by either spouse, with the exception of property in specifically delineated categories, is considered to be marital property. In this matter, Defendant purchased the Dean Street property, the DeCosta Avenue property, and the 130-33 Street property, during the marriage in 1999, 2001 and 2005, respectively. Pursuant to the statutory presumption, all three properties are deemed to be marital property. In addition to the real property acquired during the marriage, both parties also acquired retirement benefits throughout the duration of the marriage. The Court found that to the extent the benefits were accrued during the marriage, the retirement benefits were marital property.
Turning to the unique circumstances of this case, the Court considered the economic partnership, as created by the parties in this marriage. While the living arrangements of the parties from March 1997 through May 2005 was disputed, it was undisputed that from the outset of the marriage the parties agreed not to treat the marriage as an economic partnership. While the document signed on March 4, 1997, was not a pre-nuptial agreement, as it did not satisfy the requirements for a pre-nuptial agreement as required by DRL 236(B)(3), the written signed document evinced the intent of the parties to forego any legal claim each party may have to the other party's assets in the event that the marriage was unsuccessful. While the Plaintiff testified that the agreement only concerned the property owned prior to the marriage, the evidence presented established that the parties maintained separate finances throughout the life of the marriage. Although Plaintiff testified that the parties held one joint account until approximately 2004, she failed to present evidence to establish the existence of that or any joint account. Plaintiff did not contribute to the down payment or mortgage payments nor made any spousal or homemaker contribution on any of the properties purchased by Defendant. Moreover, while Plaintiff testified that the parties filed joint tax returns during the early years of the marriage, until approximately 2004, she failed to present any joint tax returns for any year during the marriage.
In addition to maintaining separate bank accounts, the parties also conducted their real estate investments and business endeavors separately. The parties' separate real estate dealings evinced an intention to maintain separate financial accounts and investments consistent with the document written and signed on March 4, 1997. Plaintiff's testimony of the parties' intent was inconsistent with the parties' actions. The manner in which the parties conducted their real estate endeavors was inconsistent with the economic partnership theory.
Supreme Court observed that Courts have held in matrimonial proceedings where parties conduct themselves in a manner inconsistent with the economic partnership, the Court may find that equitable distribution of property is not warranted (see Duspiva v. Duspiva, 181 A.D.2d 810, [2d Dept 1992]; Miller v. Miller, 4 AD3d 718, [3d Dept 2004]; Galvin v. Galvin, 20 AD3d 550, [2d Dept 2005] ). The parties began their marriage with an agreement that neither party would pursue legal action to claim the other party's assets. For the duration of the marriage, the parties lived in a manner consistent with the terms of that the document they wrote and signed. Although the parties resided in the same residence, 130-33 Street property, the Court found that the parties continued to conduct themselves in a manner consistent with the terms of the document signed on March 4, 1997, and conducted themselves in a manner inconsistent with the typical economic partnership and, therefore, equitable distribution of the property was not warranted.
Plaintiff presented evidence and testimony to establish that she purchased furniture for the residence at 130-33 221st Street in the sum of $11,734.23. Plaintiff further testified that although she left the residence in July 2007 Defendant did not allow her to remove the furniture from the residence. In light of the parties' agreement and conduct consistent with the agreement, the Court finds that the furniture purchased for the 130-33 221st Street residence is property of Plaintiff. However, as the furniture has remained in Defendant's possession since 2007, Defendant had to pay Plaintiff for the cost of the furniture. Defendant was directed to pay Plaintiff $11,734.23 for the furnishings in the residence.
Plaintiff sought counsel fees. According to Plaintiff's testimony, in 2009, she earned approximately $70,000.00 from her employment at the hospital and an additional $20,000.00 from her real estate businesses. Additionally, she testified that for the year 2010, she anticipated earning approximately $70,000.00 from the hospital and has already derived $15,000.00 from her real estate businesses. Plaintiff earned a minimum of $85,000.00 in 2010. Defendant's Amended Statement of Net Worth indicated that Defendant's monthly income was $12,707.44. While Defendant's income was greater than that of Plaintiff, throughout the duration of the marriage, the parties maintained separate finances and Plaintiff was able to meet her financial obligations without the assistance of Defendant. Considering the unique circumstances of this case, Plaintiff's request for counsel fees was denied.

Temporary Maintenance Guidelines Income Cap Raised from $500,000 to $524,000.

2012-03-10T18:16:00.003-05:00

Temporary Maintenance Guidelines Income Cap Raised from $500,000 to $524,000.
The "cap" on each spouses annual income, to be utilized in calculating temporary maintenance orders, has increased from $500,000 to $524,000 effective January 31, 2012 in accordance with Domestic Relations Law § 236 [B][5-a][b][5] . (See Temporary Maintenance Guidelines Worksheet, revised January 31, 2012 at www.nycourts.gov/divorce/TMG-worksheet.pdf or Temporary Spousal Maintenance Guidelines Calculator, revised January 31, 2012 at www.nycourts.gov/divorce/calculator.pdf) Beginning January 31, 2010 and every two years thereafter, the income cap increases by the product of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the united states department of labor bureau of labor statistics for the two year period rounded to the nearest one thousand dollars. The office of court administration is required to determine and publish the income cap. See Domestic Relations Law § 236[B], [5-a][b][5].

Important New Decisions - February 26, 2012

2012-02-27T10:13:00.000-05:00

Supreme Court Holds Once a Party Has Stated under Oath That the Marriage Has Been Irretrievably Broken for a Period of at Least Six Months, the Cause of Action for Divorce Has Been Established as a Matter of Law and There Is No Defense

In Townes v Coker, --- N.Y.S.2d ----, 2012 WL 444054 (N.Y.Sup.) the parties were married on June 12, 1981 and had three emancipated children. On October 6, 2008, Wife commenced an action for divorce against Husband. In her verified reply the Wife consented to the entry of the Judgement of Divorce based on Husband's counterclaim for constructive abandonment. On March 23, 2009, the parties executed a Stipulation, "So-Ordered" by Hon. Anthony J. Falanga, wherein Wife agreed to discontinue the 2008 action so that Husband may commence his own action on the grounds of constructive abandonment. Pursuant to the terms of the March 23, 2009 Stipulation, on or about April 8, 2009, the Husband commenced an action for divorce based upon the grounds of constructive abandonment. (Action No. 1). The Wife served a Verified Answer consenting to a divorce on the grounds of constructive abandonment. On or about March 21, 2011 the Husband made a motion seeking to discontinue Action No. 1. The Court denied Husband's motion. On or about February 15, 2011 the Wife commenced Action No. 2 and moved to consolidate Action No. 1 and Action No. 2 pursuant to CPLR 602 which the Court granted. The wife then moved Summary Judgment with respect to her cause of action alleged in Action No. 2, based upon the irretrievable breakdown of the marriage between the parties for at least six (6) months. The Wife's cause of action in Action No 2 was predicated upon the "no-fault" ground for divorce established in DRL 170(7), the irretrievable breakdown of the relationship of the parties. The Wife's Verified Complaint (Action No. 2) stated in relevant part: 11. The grounds for divorce are as follows: Irretrievable Breakdown of the Relationship (DRL Sec. 170(7)): The relationship between the Plaintiff and Defendant has been broken down irretrievably for a period of at least six (6) months. In opposition to Wife's application for summary judgment as to grounds, the Husband categorically denied his Wife's claims that the marriage had broken down irretrievably. The Supreme Court found that the Legislature did not enact a defense to this cause of action and courts cannot employ statutory construction to enact an intent that the Legislature did not express. Thus, neither the Husband, nor the Court, may create a defense where it is clear that the Legislature intentionally declined to do so. See, Pajak v. Pajak, 56 N.Y.2d 394, 452 N.Y.S.2d 381 (1982). Since the Wife stated "under oath" that the marriage is irretrievably broken, there was no basis for directing a trial with regard to this action of action for divorce. DRL 170(7) states that a divorce may be granted where: (7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. Thus, once a party has stated under oath that the marriage has been irretrievably broken for a period of at least six months, the cause of action for divorce has been established as a matter of law. The Court declined to follow the holding in Strack v.. Strack, 31 Misc.3d 258, 916 N.Y.S.2d 759 (Sup.Ct., Essex Cty., 2011), which held that a husband has the right to a trial on the "no fault" ground asserted by Wife. Also, see Schiffer v. Schiffer, 33 Misc.3d 795 (Sup.Ct. Dutchess Co., 2011). Supreme Court held that pursuant to DRL §170(7), once either party states under oath that the marriage has been irretrievably broken for at least six months, the grounds are no longer at issue and there is no right to a trial, by jury or otherwise. The entire purpose of the statute was to permit the Court to grant a divorce without requiring a trial. It noted that in AC v. DR, 32 Misc.3d 293, 305, 927 N.Y.S.2d 496 (Sup.Ct. Nassau Co., 2011), Justice Falanga stated the plaintiff's self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage on grounds that it is irretrievably broken. In the court's view, the Legislature did not intend nor is there a defense to DRL 170(7). Notwithstanding the foregoing and assuming arguendo, that the Husband was entitled to a defense regarding DRL 170(7), here the Husband's general denial of Wife's allegations that the marriage was broken down irretrievably was belied by his sworn statement in his Verified Complaint (Action No. 1) in which he stated: Continuing for a period of more than one (1) year immediately prior to the commencement of this action, defendant has continuously refused to have sexual relations with the plaintiff despite plaintiff's repeated requests to resume such relations. Based upon the Husband's sworn admission that his Wife has refused to have sexual relations with him for at least one (1) year despite his repeated request for same, it was difficult for this Court to imagine a better example of a irretrievable breakdown of the marriage relationship where one spouse continually refuses to have sexual relations with the other spouse for a period of at least one year. Here, the Husband was bound by his own sworn admission contained in his Verified Complaint, thereby eliminating any triable issues of fact for the Court to determine.

UCCJEA Requires Court to Communicate with Sister State Court Where Custody Actions Commenced in Two States

In Guzman v Guzman, --- N.Y.S.2d ----, 2012 WL 401081 (N.Y.A.D. 2 Dept.) in November 2009, the mother commenced a proceeding, seeking to modify thecustody and visitation provisions of a 2008 Florida judgment of divorce, entered upon the parties' stipulation, which awarded the father primary residential custody of the child. Before any determination could be made in this proceeding, the father relocated with the child to Florida. Thereafter, on December 22, 2009, the Family Court issued a determination, in effect, dismissing the petition for lack of jurisdiction, and it advised the mother to seek relief in Florida. However, when the mother subsequently commenced a custody proceeding with respect to the child in Florida, the Florida court determined that Florida was an inconvenient forum and that New York was the more appropriate forum, and it stayed the custody proceeding commenced in the Florida court. The mother then moved in the Family Court, Queens County, to vacate the Family Court's determination dated December 22, 2009. Without consulting with the Florida court, the Family Court denied the motion in an order dated March 2, 2011. The Appellate Division held that under the circumstances of this case, the order dated March 2, 2011, had to be reversed, that branch of the mother's motion to vacate the determination dated December 22, 2009, granted, the petition reinstated, and the matter remitted to the Family Court, for further proceedings. At the time the mother commenced this modification proceeding in November 2009 the Family Court, Queens County, had jurisdiction over it pursuant to Domestic Relations Law §76-b, based on the fact that the parties and the child lived in New York, and none of them had resided in Florida for over a year. The child was enrolled in school in New York, her sister had resided in New York with the mother since 2007, the father had commenced a proceeding in New York to modify the custody provisions of the Florida judgment of divorce with respect to the sister, and the Family Court, Queens County, had obtained a forensic study of the parties for use in that proceeding. Therefore, the parties and the subject child had significant connections with this State, and it appeared that "substantial evidence [was] available in this state concerning the child's care, protection, training, and personal relationships" (Domestic Relations Law § 76[1][b][ii] ). Accordingly, New York had jurisdiction to modify the custody and visitation provisions of the parties' Florida judgment of divorce with respect to the subject child. Nonetheless, where custody proceedings relating to a child are pending in different states-in this case, New York and Florida-Domestic Relations Law § 76-e applies, and the courts of the two states must confer with each other. Since the Family Court made its initial determination, in effect, dismissing the petition in this proceeding, the father and the child apparently had resided in Florida. In view of these circumstances, upon remittal, the Family Court, Queens County, was directed to contact the Florida court so that the courts of the two states may confer with each other and determine which state was the more appropriate forum for the proceeding at this juncture.

　

important New Decisions - February 12, 2012

2012-02-12T14:13:00.003-05:00

Child Support Cap Raised from $130,000 to $136,000

The "combined parental income amount" to be utilized in calculating child support orders has increased from $130,000 to $136,000 effective January 31, 2012. (See Child Support Worksheet (Form UD-8) revised January 2012). The amount of the "combined parental income" is established by Domestic Relations Law § 240 (1-b) (2) as the amount set forth in Social Services Law § 111-I (2) (b). Domestic Relations Law § 240 (1-b) (2) provides that the amount established shall be multiplied by the appropriate child support percentage and such amount shall be prorated in the same proportion as each parent's income is to the combined parental income. Social Services Law § 111-I (2)(b) provides that the 　$130,000 cap is increased automatically on January 31, 2012 and on January 31 every two years thereafter by the product of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the United States department of labor bureau of labor statistics for the two year period rounded to the nearest one thousand dollars. (See Bureau of Labor Statistics for its publications at http://www.bls.gov)

First Department Holds That Double Dipping Is Not Allowed Under Temporary Maintenance Guidelines
In Khaira v Khaira, --- N.Y.S.2d ----, 2012 WL 371997 (N.Y.A.D. 1 Dept.) the Appellate Division, in an opinion by Justice Saxe, considered the guidelines for awards of temporary spousal maintenance under Domestic Relations Law 236 (B)(5-a), particularly with regard to the circumstances in which the court may deviate from the guideline amount derived by formula (the presumptive award), and the procedures that must be undertaken to do so. The parties married on July 8, 2006. They had two sons, and the wife had a son from a previous marriage. In September of 2010, the husband voluntarily moved out of the marital residence, and in October 2010, the wife commenced the divorce proceeding. She moved for pendente lite support, asking for monthly maintenance of $11,500 and child support of $7,290, and a direction that the husband directly pay the carrying costs on the marital residence, child care expenses, and all health care expenses for the family.

The court observed that to determine temporary maintenance, the motion court had to apply Domestic Relations Law 236(B)(5-a), which had become effective on October 12, 2010. The court determined the presumptive award to be $11,500 per month, awarded the wife $13,870 in unallocated spousal and child support, tax deductible to the husband, and required the husband to directly pay to the lender the monthly mortgage payments on the marital residence in which the wife and the children continue to reside, and the health care insurance premiums and unreimbursed health care expenses for the family, including his stepson. It also directed the husband to pay the wife interim counsel fees of $42,000.

On appeal, the husband contended that the motion court awarded the wife an excessive sum because it failed to consider his actual, documented net monthly income and cash flow, and incorrectly calculated his annual income by including non-recurring earnings such as a one-time bonus, and illiquid, noncash equity compensation. He challenged the counsel fee award on the ground that the wife's mother guaranteed her counsel fee obligation, and counsel has been paid in full to date. He also challenged the directive that he pay the health care expenses of his stepson.

Justice Saxe observed that Domestic Relations Law 236(B)(5-a) reflects a substantial change in the Legislature's approach to temporary maintenance. The previous spousal maintenance provision gave the court great leeway, directing only in general terms that it order maintenance"in such amount as justice requires," considering the parties' standard of living during the marriage, the reasonable needs of the non-monied spouse and the monied spouse's ability to pay, and with regard to a list of factors such as the parties' respective earning capacities (former DRL 236[B][6] ). Courts applying that provision observed that pendente lite maintenance was awarded to "tide over the more needy party, not to determine the correct ultimate distribution and to ensure that a needy spouse is provided with funds for his or her support and reasonable needs" The new provision, rather than aiming merely to "tide over" the non-monied spouse, creates a substantial presumptive entitlement. He noted that the motion court properly followed the initial procedures. It applied the $500,000 cap to the husband's income, and using $60,000 as the wife's income, based on the monthly payments she acknowledged receiving from her parents, performed the two calculations: for the first, it subtracted 20% of $60,000 ($12,000) from 30% of $500,000 ($150,000), arriving at $138,000; for the second, it calculated 40% of $560,000 ($224,000), then deducted $60,000, arriving at $164,000. It properly treated the lesser of these two calculations, $138,000, as the guideline amount. At that point, the court observed that the parties' 2008 joint income tax return reflected an adjusted gross income of $851,549, almost all from the husband's earnings at the investment firm the Blackstone Group, and that their 2009 tax return reflected an adjusted gross income of $1,063,426, also almost entirely from the husband's employment. However, it did not then proceed to explicitly discuss whether an additional amount of maintenance was warranted from the portion of the husband's income that exceeded the $500,000 cap, as required by 236(B)(5-a)(c)(2). Instead, the court next examined the wife's submitted monthly expense budget of approximately $21,267 and concluded that with the exception of claims for $1,000 for gifts and $225 for charitable contributions, the remainder ($20,041), which included $4,125 for the cost of a nanny, represented the wife's and the children's reasonable needs. In essence, the court simply ruled that the husband should pay the full amount of the wife's and the children's claimed needs, partly through his payment of the mortgage on the marital residence ($5,317) and the family's health care premiums and unreimbursed medical expenses ($855), and partly through monthly payments to the wife of $13,870. In other words, the court awarded the wife $20,041 in unallocated spousal and child support without setting out a calculation of appropriate child support and without discussing or even mentioning the factors in Domestic Relations Law 236[B][5-a][c][2] ).

In considering the husband's challenge to the award, the Court rejected his suggestion that his support obligation should have been calculated based solely on his base pay, without reference to his bonus, or that the court should have taken into consideration his net pay. The statute instructs the court to base the calculations on the payor's gross income as reported in his federal income tax return, and the motion court properly did exactly that, correctly treating the husband's bonuses as income and ignoring his reliance on his net income (which can be manipulated with deductions and deferred compensation). However, the motion court did not strictly comply with the requisites of Domestic Relations Law 236 (B)(5-a).

Justice Saxe observed that no language in either the new temporary maintenance provision or the CSSA specifically addresses whether the statutory formulas are intended to include the portion of the carrying costs of their residence attributable to the non-monied spouse and the children. The new law "does not factor in child support issues or payment of household expenses. In the absence of a specific reference to the carrying charges for the marital residence, the Court considered it reasonable and logical to view the formula adopted by the new maintenance provision as covering all the spouse's basic living expenses, including housing costs as well as the costs of food and clothing and other usual expenses. The Court believed that the new approach of calculating spousal support payments to the non-monied spouse by means of a formula is intended to arrive at the amount that will cover all the payee's presumptive reasonable expenses. By calculating the guideline amount and then simply adding the direct mortgage payment on top of that, the motion court awarded more than the amount reached by the formula, without providing the required explanation.

Justice Saxe indicated that it is possible that directing payment above and beyond the guideline amount may be appropriate in certain situations. For instance, the direct mortgage payment might be justifiable as additional support when the payor's income exceeds $500,000 and the applicable factors listed in Domestic Relations Law 236 (B)(5-a)(c)(2)(a) are taken into account; or, depending on the size of the mortgage payment, perhaps only part of it should be treated as the payee's housing costs, and the remainder should be treated as the upkeep of a marital investment. He suggested that perhaps there are other reasons why the guideline amount is unjust or inappropriate. "It may well be that in this case, consideration of the enumerated factors, such as the stark difference in the parties' current earning capacities, their standard of living during the marriage, and the need to pay for day care, would justify the motion court's direction that the husband pay as additional maintenance a specified portion of his income beyond the $500,000 cap."

Because the statute expressly requires the court to both make and explain that determination (DRL 236[B][5-a][c][2][b] ), the Appellate Division could not permit the award to remain as it stood. While the ultimate support award may well be appropriate, it must be appropriately supported and explained. The Court therefore modified so as to vacate the support award and remanded the matter for a reconsideration of the award in light of the directives of Domestic Relations Law 236(B)(5-a). It also vacated the portion of the order that placed responsibility on the husband for his stepson's health care insurance and unreimbursed health care expenses. There was no allegation that the stepson was a recipient of public assistance or that he was in danger of becoming a public charge, and no other legal rationale for imposing that obligation on the husband.

The Court upheld the award of counsel fees to the wife as the "less monied spouse" (Domestic Relations Law 237[a] ). Justice Saxe observed that the statute provides that "[p]ayment of any retainer fees to the attorney for the petitioning party shall not preclude any awards of fees and expenses to an applicant which would otherwise be allowed under this section"; the husband's argument that no award of fees was appropriate because the wife's mother paid her attorney's retainer fee failed to rebut the presumption in favor of the award.

Comment:

Counsel for the spouse paying temporary maintenance should request, in his opposing papers, that the temporary maintenance order contain a provision directed the spouse who is awarded temporary maintenance to pay the "carrying costs of the marital residence" . Without such a direction, the spouse receiving the temporary maintenance award will not be under any court ordered obligation to pay those expenses, even though the temporary maintenance award includes sums for their payment, and the credit rating of the payyor spouse may suffer or the mortgage may go into foreclosure..

Counsel for a spouse seeking temporary maintenance should to make sure, in preparing an application for temporary support, that the "presumptive award" will be enough to permit his client to pay the "carrying costs of the marital residence." The application for temporary maintenance should ask the court to specify what items are considered "carrying costs of the marital residence".

important New Decisions - February 12, 2012

2012-02-12T13:44:00.000-05:00

Threat to Cancel Wedding Is Not Duress.

In Ramunno v Ramunno, --- N.Y.S.2d ----, 2012 WL 266464 (N.Y.A.D. 4 Dept.) Plaintiff commenced a action seeking a determination that the parties' Antenuptial Agreement was null and void on the grounds of , inter alia, duress. The Appellate Division held that Supreme Court property determined that defendant's threat to cancel the wedding unless plaintiff signed the agreement did not amount to duress (citing Colello v. Colello, 9 AD3d 855). The Appellate Division held that court erred, however, in sua sponte determining that plaintiff could not, prior to the marriage, waive her right to equitable distribution of defendant's pension (citing Strong v. Dubin, 75 AD3d 66, 72-73) or her right to maintenance (DRL 236[B][3][3] ), and modified the order accordingly.

Husband's Motion to Modify Divorce Judgment to Conform to Agreement Not Barred by the Doctrine of Laches, Although He Waited Eight Years to Make the Motion

In Markell v Markell--- N.Y.S.2d ----, 2012 WL 234084 (N.Y.A.D. 2 Dept.) in a stipulation of settlement dated May 14, 2002, the plaintiff former wife and the defendant former husband agreed, inter alia, that the defendant would pay child support on the fifteenth day of each month, and that unreimbursed health care expenses for their children would be divided equally after the plaintiff paid the initial sum of $500 per child. The Supreme Court issued Findings of Fact and Conclusions of Law dated December 10, 2002, which reflected this agreement. However, the judgment of divorce, which was entered on December 10, 2002, provided that the defendant was to pay child support on the first day of each month and two thirds of the children's unreimbursed health care expenses after the plaintiff paid the initial $500 per child. On or about December 10, 2010, the defendant moved to modify the judgment of divorce to "accurately reflect the provisions of the December 10, 2002 Findings of Fact and Conclusions of Law and [the] parties' May 14, 2002 Stipulation of Settlement." The Supreme Court denied the motion and, upon reargument, adhered to its original determination. The Supreme Court determined that the husband's motion to modify the judgment was barred by the doctrine of laches, in that he waited eight years to make the motion.
The Appellate Division modified the order made upon reargument. It observed that the doctrine of laches is an equitable doctrine which bars the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party. The mere lapse of time without a showing of prejudice will not sustain a defense of laches. In addition, there must be a change in circumstances making it inequitable to grant the relief sought. Notably, prejudice may be established by a showing of injury, change of position, loss of evidence, or some other disadvantage resulting from the delay ( Skrodelis v. Norbergs, 272 A.D.2d at 316-317). In support of his motion, the defendant demonstrated that the subject provisions of the judgment were the result of a clerical error, as the parties had been adhering to the terms of the stipulation of settlement for approximately eight years, and that the plaintiff had only recently informed him at a Family Court proceeding that the judgment contained terms different from those in the stipulation of settlement and Findings of Fact and Conclusions of Law. In opposition, the plaintiff conceded that the parties had been complying with their stipulation of settlement since it was executed in May 2002. Since the parties had been operating under the terms of the stipulation of settlement for approximately eight years prior to the husband's motion, the plaintiff failed to demonstrate a change in circumstances that would render inequitable the relief sought by the defendant. Further, the plaintiff failed to show that she would be prejudiced by a modification of the judgment to accurately reflect the provisions contained in the stipulation of settlement and Findings of Fact and Conclusions of Law .

Court Should Not Rely on New Statutory Formula in Domestic Relations Law 236(b)(5-a) in Actions Commenced Prior to its Effective Date
In Truglia v Truglia, --- N.Y.S.2d ----, 2012 WL 233765 (N.Y.A.D. 2 Dept.) the Appellate Division held that in determining an award of pendente lite maintenance, a court should not rely on the new statutory formula in Domestic Relations Law 236(B)(5-a) in actions, such as this one, commenced prior to its effective date (see Ingersoll v. Ingersoll, 86 AD3d 684, 685). Here, however, the Supreme Court's award, while erroneously arrived at using the new statutory formula, was upheld in accordance with the prior standard under former Domestic Relations Law 236(B)(6)(a). The award of pendente lite maintenance reflected " 'an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse... with due regard for the preseparation standard of living.

Plaintiff Made Direct Contributions to the Business Established by Husband Prior to Parties Marriage by Serving as Company Bookkeeper for Approximately Seven Years
In Scher v Scher,--- N.Y.S.2d ----, 2012 WL 233930 (N.Y.A.D. 2 Dept.) the Appellate Division held that contrary to the determination of the Supreme Court, the plaintiff was entitled to share in the appreciated value of Home Companion Services of New York, Inc., which the defendant incorporated approximately three years prior to the marriage. Separate property includes "property acquired before [the] marriage" (Domestic Relations Law 236[B] [1][d][1] ), such as the business interest in Home Companion Services in this case, as well as "the increase in value of [such] separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse" (Domestic Relations Law 236[B][1][d][3] ). In order for appreciation in the value of separate property to be deemed marital property subject to equitable distribution, the nontitled spouse must demonstrate the manner in which his or her contributions resulted in the increase in value and the amount of the increase which was attributable to his or her efforts. Here, the Supreme Court improvidently exercised its discretion in finding that the plaintiff made no direct or indirect contributions to the appreciation of Home Companion Services which resulted in the increase in the value of the company. The evidence established that the plaintiff made direct contributions to the business by serving as the company bookkeeper for approximately seven years. The evidence further established that the defendant's active participation in expanding the business was aided and facilitated by the plaintiff's indirect contributions as homemaker and occasional caretaker of one of his children from a prior marriage. Moreover, the defendant failed to establish that the plaintiff committed "wasteful dissipation" of marital assets in her role as bookkeeper. The Appellate Divison held that in light of the plaintiff's direct and indirect contributions, the Supreme Court should have awarded her 20% of the appreciated value of Home Companion Services. As the parties stipulated that the appreciated value over the course of the marriage amounted to $1,146,000, the plaintiff was entitled to an award of $229,200.
Furthermore, contrary to the determination of the Supreme Court, the plaintiff was entitled to an equitable share of the appreciated value of the marital residence over the course of the marriage, notwithstanding that the residence was the separate property of the defendant until March 2005, when the property was transferred to the plaintiff and defendant as tenants by the entirety. The increase in the value of separate property remains separate property except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse at which point the increase in value becomes marital property, in accordance with the rule that the definition of marital property is to be broadly construed, given the principle that a marriage is an economic partnership. The parties stipulated to a neutral appraisal which found that the marital residence had increased in value by $40,000 due to "active appreciation" in the form of physical improvements, and $300,000 due to "passive appreciation" in the form of "market forces, without regard to any improvements, except normal maintenance." Since the record established that the $340,000 in appreciation was attributable to the efforts of both parties, the plaintiff was entitled to share equitably in that increased value. Applying the plaintiff's 50% distributive share to the $340,000 in appreciation, she was entitled to an award of $170,000 for the appreciated value in the martial residence from the date of marriage. In light of the plaintiff's contributions, the Supreme Court should have awarded the parties equal shares in the increase in the value of the marital residence.
The Appellate Division found that Supreme Court erred in finding that the interest in Green Fields East Holding, LLC , which was held in the defendant's name, was the separate property of the defendant. Domestic Relations Law 236 defines "marital property" as "all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held". Likewise, expenses incurred prior to the commencement of an action for a divorce are marital debt to be equally shared by the parties upon an offer of proof that they represent marital expenses. Where a party has paid the other party's share of what proves to be marital debt, reimbursement is required. As the interest in Green Fields was acquired during the marriage and before the commencement of the instant action, it was marital property. Likewise, a loan in the approximate amount of $239,000 which was taken out simultaneously, was marital debt. Since the defendant established that he paid the plaintiff's share of the marital debt by satisfying the loan, reimbursement was required. Taking the market value of the interest in Green Fields ($350,000), and applying the plaintiff's 50% distributive share thereto, she was entitled to an award of $55,500 after reimbursing the defendant the sum of $119,500 for satisfying her portion of the marital debt.
The Appellate Division held that Supreme Court erred in awarding the defendant a separate property credit in the amount of $32,719.59. Where separate property has been commingled with marital property, there is a presumption that the commingled funds constitute marital property. However, a party may overcome this presumption by presenting sufficient evidence that the source of the funds was separate property. Defendant failed to present sufficient evidence to establish that the source of the funds in the disputed profit-sharing plan account was separate property.
Considering the plaintiff's distributive award with respect to the marital residence and Home Companion Services and Green Fields, and in light of the plaintiff's direct and indirect contributions, an award of 10% of the value of the parties financial accounts, except a 529 college savings plan account, was equitable. It declined to disturb the provision of the judgment which directed that the defendant was to receive all the proceeds of the 529 college savings plan account.
In light of the distribution of the marital property and the plaintiff's own testimony regarding her expenses and earning capacity, the Appellate Division declined to disturb the Supreme Court's determination that the plaintiff was not entitled to future maintenance payments and declined to disturb the Supreme Court's determination that the plaintiff was not entitled to an award of an attorney's fee. In light of the substantial distributive award in favor of the plaintiff, she was capable of paying for her own attorney.

important New Decisions - February 12, 2012

2012-02-12T13:42:00.003-05:00

Emergency Jurisdiction Continues Under UCCJEA for More than Three Years Where Family Court Not Satisfied With Steps to Protect Children Taken by Home State of New Mexico Court

In Matter of Bridget Y, --- N.Y.S.2d ----, 2011 WL 6848352 (N.Y.A.D. 4 Dept.), a 3-2 decison, the primary issue raised was whether Family Court properly exercised temporary emergency jurisdiction over the children pursuant to Domestic Relations Law 76-c (3). The parents Kenneth M.Y. and Rita S., appealed from an order of fact-finding and disposition determining, following a fact-finding hearing, that their children were neglected and placing the children in the custody of petitioner Chautauqua County Department of Social Services (DSS), and from a corrected order that denied their motion to vacate the order of fact-finding and disposition in appeal No. 1. The parents contended in both appeals that Family Court lacked subject matter jurisdiction because New Mexico was the home state of the children, the neglect took place in New Mexico, and the parents were neither domiciliaries of nor otherwise significantly connected to New York State. The majority opinion concluded that the court properly exercised temporary emergency jurisdiction pursuant to Domestic Relations Law 76-c (3) inasmuch as the children were imminent risk of harm, and concluded that both orders should be affirmed.
Respondent Kenneth M.Y. (father), the biological father of the children, married respondent Rita S. (stepmother), after the children's biological mother died in September 2001. The stepmother subsequently adopted the children. At some time between February 2007 and November 2007, the parents moved with the children from Pennsylvania to New Mexico. On August 7, 2008, the parents were arrested and were each charged with seven counts of child abuse with respect to the children. The charges stemmed from allegations that the parents left Kelly and Colleen, then 15 years old, and Michaela, then 12 years old, unsupervised in a bug-infested trailer miles away from the family residence, with limited supplies and inadequate food for a period of six to eight weeks. It was further alleged that the parents, as a form of discipline, had confined each of the children to their bedrooms or to the garage for days, weeks, or months at a time. While confined to the garage, the children received only water, bread, peanut butter and a sleeping bag, and they were permitted to use the bathroom once or twice a day.
As a result of the criminal charges, a Magistrate Court in New Mexico ordered the parents to avoid all contact with the children. In light of the no-contact order, on August 11, 2008 the parents placed the children in the care of their "maternal step-aunt and uncle", Robin S. and Paul S., who were respondents in appeal No. 2. Robin S. signed a "safety contract" with the New Mexico Children, Youth and Families Department (CYFD), which stated that the parents voluntarily placed the children in the care of the aunt and uncle and that the parents were "still legally responsible for the [children's] well-being."Robin S. agreed to prohibit any contact between the parents and the children and to advise the Dona Ana County District Attorney's Office in the event that the parents attempted to remove the children from her care or otherwise to contact the children in any way. Robin S. transported the children to her home in Chautauqua County, New York.
By letter dated September 22, 2008, CYFD notified the parents that it had closed its file concerning the children. The letter further stated that "[t]he Department believes that the voluntary placement of the children with Robin S[.] was in the best interests of the children. However, [the parents] are free to make changes in that voluntary placement if they choose to as they remain the legal custodians of their children. The Department has no legal authority with respect to the children at this time. The safety contract between the Department and Robin S[.] was for placement purposes and does not prevent [the parents] from making changes to the children's placement."
According to the parents, they provided a copy of that letter to the aunt and uncle and notified them of their "intent to revoke the temporary placement of the minor children in their care and place the minor children with an appropriate guardian." The aunt and uncle refused to return the children, however, and instead filed a petition in Family Court seeking custody of the children. On October 1, 2008, the parents were indicted in New Mexico on six counts each of felony abuse of a child. On November 5, 2008, the parents filed a "Petition to Determine Custody Pursuant to the [Uniform Child Custody Jurisdiction and Enforcement Act]" in District Court in New Mexico against the aunt and uncle. The petition alleged, that the parents had resided in New Mexico since February 2007, that New Mexico was the home state of the children, and that the parents had placed the children with the aunt and uncle on a temporary basis "until a more suitable placement could be made or until [the parents'] conditions of release were modified or disposed of so that the children could be reunited with them." By their petition, the parents sought to place the children in the care and custody of a different temporary guardian. The parents thus sought an order confirming that they are the legal guardians of the children, and appointing a temporary guardian for the minor children until the criminal charges against them were resolved or their conditions of release were modified.
Two days later, Family Court issued a temporary order of custody asserting temporary emergency jurisdiction pursuant to Domestic Relations Law 76-c and granting temporary custody of the children to the aunt and uncle. DSS thereafter commenced the neglect proceeding in Family Court by petition filed November 13, 2008, alleging that the parents had neglected each of the children. At a Family Court appearance on November 24, 2008, an attorney for the parents appeared for the limited purpose of contesting jurisdiction, asserting that the parents were residents of New Mexico, that the alleged neglect took place in New Mexico, and that the children remained residents of New Mexico. Family Court continued to assert temporary emergency jurisdiction over the matter.
On December 10, 2008, the New Mexico court issued an "Order Assuming Jurisdiction." The New Mexico court determined that it had jurisdiction over the parties and the subject matter, i.e., the children, noting that the children had resided with the parents in New Mexico since February 2007 and expressly stating that New Mexico is the home state of the children. With respect to the merits, the New Mexico court ruled that the parents "remain the sole legal custodians of the minor children, which includes the right to decide the temporary placement of the minor children with an appropriate guardian of their choosing."According to the New Mexico court, the parents wished to nominate Jim L. and Angela L., residents of Ohio, as temporary guardians of the children. To that end, the New Mexico court ordered the parents to arrange for a home study of the Ohio guardians, and to pay for the cost of the home study. Finally, the New Mexico court ruled that "[t]he issue of permanent custody is hereby reserved pending resolution of the criminal charges. Following resolution of the criminal proceeding, the Court may appoint a guardian ad litem herein and may conduct in camera interviews of the minor children."
The parents sought to register the above New Mexico order in Family Court. At a December 15, 2008 appearance, Family Court indicated that it had some concerns relative to relinquishing jurisdiction to the New Mexico court. Specifically, the Family Court judge indicated that "[w]hat concerns me is, apparently, there is no neglect proceeding in the State of New Mexico. There are criminal proceedings against these parents, but for whatever reason, there was no neglect proceeding ... [W]ith criminal charges pending, and the children being the ones who would be put in the position of testifying, should there be a criminal trial, ... the children are left with no legal remedies. There hasn't even been a law guardian appointed ... for these children in the State of New Mexico. And the parents are given full authority to do whatever, and place these children wherever they so choose."
By order entered January 9, 2009, the New Mexico court approved the home study and ordered the immediate transfer of the children to the Ohio guardians. The New Mexico court reiterated that the parents "are the sole legal guardians of the minor children and maintain their constitutional right to management and control of their minor children," and approved "[t]he parents' selection of placement guardian for their minor children."In light of that order, the parents requested that Family Court issue an order (1) registering and enforcing the New Mexico order assuming jurisdiction; (2) dismissing the New York custody proceeding; (3) dismissing the New York neglect proceeding; (4) vacating the temporary order of custody; and (5) enforcing the New Mexico transfer order.
DSS thereafter sought an award of temporary custody of the children. In support thereof, DSS submitted an affidavit of a psychologist who had counseled each of the children. The psychologist averred that the children "have related very credible stories of child abuse and neglect," and that the parents demonstrated a "disturbing pattern of isolating these children from each other, from children their age, and from their mother's relatives."With respect to the proposed move to Ohio, the psychologist averred that "[a]ny change in placement for the [children] that is instigated by their father or adoptive mother carries the implicit message to these girls that they are still under the control of their father, and therefore still at risk for abuse and maltreatment ... Removing them from an emotionally secure family environment, the friends they have recently established, and a school environment which has been affirming for them, must be considered a further emotional deprivation for these girls, and a demonstration to the girls that they remain at risk of capricious, abusive and insensitive treatment by their father. Accordingly, by generating a constant state of anxiety and uncertainty for them, such a move would result in a perpetuation of the emotional abuse and deprivation that these children suffered under the care of their father and adoptive mother."
Family Court granted temporary custody of the children to DSS, concluding that the basis for asserting emergency jurisdiction continued to exist. Family Court explained that, "[w]hen there is a placement out of state in a situation where parents are facing criminal charges, and there is no underlying custody order, and no law guardian appointed for the children, ... then the children are left without protection, plain and simple." At the fact-finding hearing on the neglect petition, DSS introduced testimony from each of the children as well as from the maternal step-aunt, Robin S., and the children's psychologist, and Family Court received in evidence records from the New Mexico Police Department and financial records relative to the father. The parents failed to appear at the hearing and subsequently moved to dismiss the neglect proceeding for lack of personal and subject matter jurisdiction.
By the order in appeal No. 1, Family Court implicitly denied the parents' motion to dismiss the neglect proceeding by issuing an order of fact-finding and disposition, which determined that the parents neglected each of the four children, ordered that the children be placed in the custody of DSS, and adopted the permanency plan proposed by DSS. By the corrected order in appeal No. 2, Family Court, inter alia, denied the parents' motion to vacate the order of fact-finding and disposition. The Appellate Division initially agreed with the parents that, absent the exercise of temporary emergency jurisdiction, Family Court would lack subject matter jurisdiction over the neglect proceeding. Pursuant to New York's version of the UCCJEA (Domestic Relations Law art 5-A), Domestic Relations Law 76(1) "is the exclusive jurisdictional basis for making a child custody determination by a court of this state" (DRL 76[2] ). A "[ c]hild custody determination" is defined as "a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order" (DRL 75-a [3] ).
Here, the neglect proceeding commenced by DSS fell within the UCCJEA's expansive definition of a child custody proceeding (DRL 75-a [4] ). There was no question that New Mexico, not New York, was the home state of the children at the time of commencement of the neglect proceeding. New Mexico remained the home state of the children when the neglect proceeding was commenced in New York, and Family Court lacked jurisdiction to make an initial child custody determination. In addition, Domestic Relations Law 76-e states that, "[e]xcept as otherwise provided in section [76-c] of this title[, i .e., temporary emergency jurisdiction], a court of this state may not exercise its jurisdiction under this title if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child[ren] has been commenced in a court of another state having jurisdiction substantially in conformity with this article...." Here, at the time of commencement of the neglect proceeding in New York, the parents had already commenced a custody proceeding in New Mexico. Thus, inasmuch as a custody proceeding was pending in the children's home state when the neglect petition was filed, New York was precluded from exercising jurisdiction except in an emergency.
The Majority concluded that Family Court properly exercised temporary emergency jurisdiction pursuant to Domestic Relations Law 76-c. In the absence of subject matter jurisdiction pursuant to section 76(1), section 76-c provides that a New York court has "temporary emergency jurisdiction if the child[ren are] present in this state and the child[ren] ha [ve] been abandoned or it is necessary in an emergency to protect the child [ren], a sibling or parent of the child[ren]" ( DRL 76-c [1];). There was no question that the children were present in New York at all relevant times in which Family Court exercised temporary emergency jurisdiction. There must, in addition, be an emergency that is real and immediate, and of such a nature as to require [s]tate intervention to protect the child[ren] from imminent physical or emotional danger". The duration of an order rendered pursuant to temporary emergency jurisdiction depends upon whether there is an enforceable child custody determination or a child custody proceeding pending in a court with jurisdiction. Here, a child custody proceeding had been commenced in New Mexico when Family Court first asserted temporary emergency jurisdiction. Thus, Family Court's exercise of temporary emergency jurisdiction was governed by DRL 76-c (3), which provides that "any order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under sections [76] through [76-b] of this title. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires, provided, however, that where the child who is the subject of a child custody determination under this section is in imminent risk of harm, any order issued under this section shall remain in effect until a court of a state having jurisdiction under sections [76] through [76-b] of this title has taken steps to assure the protection of the child."
Family Court first exercised temporary emergency jurisdiction on November 7, 2008, when it issued a temporary order of custody in the proceeding commenced by the aunt and uncle. In the Majority’s view there was no question that an emergency existed at that point in time. On September 22, 2008, CYFD notified the parents' attorney that it had closed its file concerning the children and that the parents, as the "legal custodians of their children," were "free to make changes in th[eir] voluntary placement."Shortly thereafter, the parents sent the stepmother's father, who lived with them, to New York in an attempt to take the children to an undisclosed address in New Mexico. On November 5, 2008, the parents commenced a custody proceeding in New Mexico seeking, inter alia, to place the children in the care and custody of yet another temporary guardian. According to the aunt and uncle, the parents also made "a threat ... immediately before the [New Mexico] Grand Jury Proceedings where the children were told that they would be taken to an unknown location."The parents initially sought to appoint the father's office manager as temporary guardian for the children. They then nominated the Ohio guardians, allegedly "long time and close friends of the family," as the temporary guardians of the children. The children told their attorneys and Family Court that they had never met the Ohio guardians. We thus conclude that Family Court properly acted to protect the children from imminent danger, i.e., the likelihood of returning the children to the home at which the abuse and neglect occurred or to another guardian under the control of the parents. At that point in time, no New Mexico court had issued an order protecting the children, and CYFD-the New Mexico equivalent of DSS-had determined that it had "no legal authority with respect to the children."
The orders challenged on appeal, however, were issued after the parents had obtained two orders in New Mexico: (1) the December 10, 2008 order assuming jurisdiction, and (2) the January 9, 2009 order approving the home study and ordering the immediate transfer of the children. The propriety of Family Court's orders thus depended upon whether this case fell within the narrow exception set forth in Domestic Relations Law 76-c (3), which provides that, "where the child[ren] who [are] the subject of a child custody determination under this section [are] in imminent risk of harm, any order issued under this section shall remain in effect until a court [of the home state] has taken steps to assure the protection of the child[ren]." The Majority concluded that this case falls within that category.
With respect to the first of the two New Mexico orders issued before the orders challenged on appeal, the court noted that, despite the criminal charges, the substantial evidence of abuse and neglect, and the no-contact order, the New Mexico court allowed the parents to select new guardians for the children and ruled that it would not address the issue of permanent custody until after the criminal charges had been resolved. The order provided that the New Mexico court "may appoint a guardian ad litem herein and may conduct in camera interviews of the minor children" following resolution of the criminal proceeding. The order further provided that the parents "shall not in any manner communicate with the minor children or cause any third party or their agent to communicate in any manner with the minor children regarding this matter or the criminal matter " (emphasis added). The New Mexico court thus left open the possibility of communication or contact between the parents and the children on other subjects. Although the New Mexico court ordered the parents to "continue to abide by the no[-]contact order or any further order" issued in the criminal proceeding, the court noted that "[t]here is no other order limiting [their] parental rights to the minor children."With respect to the second of the two New Mexico orders, the New Mexico court, after reviewing a home study arranged and paid for by the parents, reiterated that the parents "maintain their constitutional right to management and control of their minor children," approved the parents' "selection of placement guardian[s] for their minor children," and ordered the immediate transfer of the children to the Ohio guardians. Thus, without any input from CYFD or any other agency charged with the protection of children, an attorney for the children, or the children themselves, the New Mexico court ordered that the children be transferred from family members to non-relatives who were strangers to them and who resided in a state with which they had no connection, all at the behest of the parents who had abused them.
The Majority found it particularly troubling that CYFD failed to commence an abuse or neglect proceeding against the parents and that the New Mexico court failed to appoint an attorney for the children to advocate on their behalf pursuant to New Mexico law. CYFD apparently failed to conduct the statutorily mandated investigation into the abuse and neglect allegations against the parents (see NM Stat Ann s 32A-4-4 [A] ), and the agency also failed either to recommend or to refuse to recommend the filing of an abuse or neglect petition against them ( sees 32A-4-4 [C] ). Instead, CYFD simply transferred the children to New York and closed its file, leaving the children's fate to the wishes of their alleged abusers. In addition, upon asserting jurisdiction over the case, the New Mexico court failed to appoint a guardian ad litem or attorney for the children to "represent and protect the best interests of the child[ren] in [the] court proceeding" (s 32A-1-4 [J]; see s 32A-4-10). The New Mexico court then proceeded to change the children's placement at the request of the parents without enabling the children to have a voice in the courtroom and without any consideration, let alone determination, of the children's best interests. The children's psychologist averred in an affidavit presented to Family Court that the parents displayed a "disturbing pattern of isolating these children from each other, from children their age, and from their mother's relatives," and he opined that moving the children to Ohio at the behest of the parents "would result in a perpetuation of the emotional abuse and deprivation that the[ ] children suffered under the care of their father and adoptive mother". The parents' actions in attempting to remove the children from their New
York placement constituted "a continuing pattern of abuse to isolate [the children] from family members," and she and the psychologist similarly concluded that the parents' actions communicated to the children that they remain under the
control of their abusers. In light of the above-described circumstances, including the absence of a neglect proceeding in New Mexico and the refusal of the New Mexico court to act to protect the children pending the resolution of the criminal charges against the parents, the Majority concluded that Family Court properly continued to exercise temporary emergency jurisdiction of the children after the issuance of the two New Mexico orders. In their view, the children remained "in imminent risk of harm," namely, emotional abuse inflicted by the parents, and it appears from the record before us that New Mexico has not acted to "assure the protection of the child[ren]"
The parents further contended that, even if Family Court properly exercised temporary emergency jurisdiction in the neglect proceeding, such jurisdiction did not permit Family Court to enter an order of disposition. The Majority rejected that contention. It stated: “Domestic Relations Law § 76-c (3), however, which is previously quoted herein and governs the instant case in light of the custody proceedings in New Mexico, contains no such provision. Thus, orders issued pursuant to section 76-c (3) are required to expire at a date certain unless the “imminent risk of harm” exception applies, in which case the order applies “until [the home state] has taken steps to assure the protection of the child.” Even assuming, arguendo, that the parents are correct, they concluded that Family Court was not thereby precluded from issuing the order of disposition in appeal No. 1. Although an order of fact-finding and disposition is a final order for purposes of appellate review (see Ocasio v Ocasio, 49 AD2d 801; see generally Matter of Gabriella UU., 83 AD3d 1306; Matter of Mitchell WW., 74 AD3d 1409, 1411-1412), it is not a final or permanent “child custody determination” (§ 76-c [2], [3] [emphasis added]). Rather, the order in appeal No. 1 here simply placed the children in the custody of DSS, scheduled a permanency hearing, and approved a proposed plan for the children. A placement with DSS is never intended to be a final or permanent custodial relationship. In cases such as this in which a child is placed with DSS pursuant to Family Court Act § 1055, the court retains continuous jurisdiction over the case (see § 1088), and the child’s placement is reviewed at permanency hearings conducted every six months (see § 1089 [a] [2], [3]). Such jurisdiction continues until the child is “discharged from placement” (§ 1088), i.e., until permanency is achieved Family Court “maintains complete continuing jurisdiction whenever a child has been placed outside his [or her] home. Accordingly, the case remains on the Court’s calendar — there is no final disposition until permanency has been ordered — and the Court may hear the matter upon motion at any time. There is no need or requirement to wait until the next scheduled hearing date”. The parents therefore may at any time petition for the return of their children and/or move to vacate or terminate the children’s placement with DSS. Thus, the order of fact-finding and disposition in appeal No. 1, which concerns placement rather than custody of the children, does not conflict with New Mexico’s order, which provides that the “issue of permanent custody is hereby reserved pending resolution of the criminal charges” against the parents. Upon resolution of the criminal charges or when the emergency abates, i.e., when the New Mexico court ensures that the children are not “in imminent risk of harm” (Domestic Relations Law § 76-c [3]), the children’s placement with DSS may be revisited and the issue of permanent custody addressed. Until then, the order of fact-finding and disposition simply maintains the status quo – placement in the custody of DSS – with periodic judicial review to assess any changed circumstances. Inasmuch as the order of fact-finding and disposition does not constitute a final custody determination, it cannot be said that Family Court exceeded the scope of its temporary emergency jurisdiction in issuing the order in appeal No. 1. “
Justice Smith dissented in part, only agreeing with the majority that the appeal must be dismissed with respect to the two older children because they were no longer under the age of 18 and voted to reversed in accordance with an opinion in which Judge Lindley concurred. They would reverse the orders on appeal insofar as they applied to the children under the age of 18 and grant the parents’ motion to dismiss the proceeding with respect to them for lack of jurisdiction. The dissent could not agree with the majority that Family Court properly exercised temporary emergency jurisdiction over the subject children and could not agree that such an emergency existed here. The dissent pointed out that: ” The majority fails to note, however, that the latter order contained an order of protection prohibiting the parents from communicating with the children in any manner, including through third parties, regarding the custody case or the criminal proceedings. The New Mexico court also ordered the parents to attend a court- approved Parent Education Workshop, approved a home study of the Ohio family by a licensed social worker and, most importantly, ordered that the children shall not be removed from the care of that family, or from a 100-mile radius of the Ohio family’s residence without the prior approval of the New Mexico court. Consequently, there is no imminent risk that the parents will continue their alleged abuse of the children, and the majority’s conclusion that the New Mexico court acted “without any consideration, let alone determination, of the children’s best interests” is simply incorrect. The dissent also observed that: “Family Court has issued an order that was in conflict with an order of the children’s home state, and which had no provision for the eventual transfer of jurisdiction to the home state. Family Court thereby created a jurisdictional competition rather than eliminating such a competition, the latter of which is required by the UCCJEA.

Under the UCCJEA , which Controls Jurisdiction in Neglect Proceedings, Jurisdictional Facts must Be Demonstrated to the Court's Satisfaction 'In the First Instance' and Whatever May Occur after the Jurisdictional Question Is Determined Is Irrelevant to That Issue"

In Matter of Destiny EE, --- N.Y.S.2d ----, 2011 WL 6820412 (N.Y.A.D. 3 Dept.) Respondent was the mother of two sons (born in 1997 and 2000) and a daughter (born in 2003). In 2001, petitioner commenced abuse and neglect proceedings against respondent and her husband arising out of the husband's sexual abuse of the older son; both sons were removed from their custody. Respondent subsequently consented to a finding of neglect based on, among other things, her admission that she should have known of the abuse. The husband absconded, and Family Court issued a warrant for his arrest, which was never executed. Following an inquest held in the husband's absence, Family Court determined that he had sexually abused the older son and had neglected both sons, and issued orders of protection as to both children; the order applicable to the older son extended until his 18th birthday. In July 2003, the sons were returned to respondent's custody. Petitioner continued to provide services and supervision until approximately June 2005, when the proceedings were closed. Respondent thereafter took the children to Wisconsin, where they lived for approximately 18 months before returning to New York. In June 2007, approximately one month after her return to New York, respondent filed a custody petition alleging that the younger son was visiting the husband in Mississippi, the husband was "doing drugs" and drinking, the husband's girlfriend had hit the younger son with a belt, and the husband had refused respondent's request to return him to her custody. On the day that this custody petition was filed, petitioner applied, pursuant to Family Ct Act 1022, for temporary removal of respondent's children on the ground that she had sent the younger son to visit the husband despite her knowledge of his sexual abuse of the older son. After a two-day hearing, the court found that it had jurisdiction, ordered the removal of the children, and placed them in petitioner's temporary custody. The court also vacated the 2001 warrant against the husband and issued a new warrant for his arrest. The younger son was thereafter returned to New York. Petitioner commenced neglect proceedings as to each of the children and, following respondent's admission that her actions constituted neglect, the court placed the children in petitioner's custody.
In 2009, petitioner commenced proceedings seeking termination of respondent's parental rights as to all three children. Respondent moved to dismiss the petitions and requested vacatur of the 2007 neglect determination and return of the children to her custody. Family Court denied the motion in its entirety, and the Appellate Division affirmed.
Respondent contended that dismissal and vacatur were required because Family Court lacked jurisdiction over the temporary removal and neglect proceedings under Domestic Relations Law article 5-A, known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The Appellate Division observed that the UCCJEA controlled as to jurisdiction here, as in all matters falling within the statutory definition of child custody proceedings (DRL 75-a [4]). Here, no jurisdiction other than New York had ever issued custody determinations affecting the subject children, nor had any applications for such determinations been made elsewhere. Therefore it found that Family Court properly determined that it had jurisdiction over the 2007 proceedings.
The Appellate Division observed that the UCCJEA establishes specific grounds as the basis for initial child custody jurisdiction, including, among others, that "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" (DRL 76[1][a] ). The home state is defined as "the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding" (DRL 75-a [7] ). In certain circumstances, children do not have home states. Respondent's children did not have a home state when the temporary removal proceedings were commenced, as they did not live in Wisconsin immediately before the proceedings were commenced and had not yet lived in New York for the requisite six months (see DRL 75-a [7]). Although Wisconsin had been the children's home state within the previous six months, it did not have jurisdiction when the removal application was filed because no "parent or person acting as a parent" was residing there (DRL 76 [1][a]; see DRL 76[1][b]).
Respondent claimed that the family's stay in New York was intended to be a "temporary absence" (DRL 75-a [7]), that Wisconsin was still the children's home state, and that she was still a Wisconsin resident. However, the record did not support this claim. "Jurisdictional facts must be demonstrated to the court's satisfaction 'in the first instance' and whatever may occur after the jurisdictional question is determined is irrelevant to that issue" ( Gomez v. Gomez, 86 A.D.2d 594, 595 [1982],affd 56 N.Y.2d 746 [1982], quoting Vanneck v. Vanneck, 49 N.Y.2d at 608, 427 N.Y.S.2d 735, 404 N.E.2d 1278). The jurisdictional analysis here thus depended upon the facts presented to Family Court when petitioner filed the emergency removal application in June 2007.
At that time, the record included respondent's sworn statements in her custody petition providing New York addresses for herself and the younger son, alleging that the younger son had lived in New York since May 2007, seeking his return to New York, and giving no indication that either respondent's presence in New York or that of her children was temporary. Respondent and the older son also made several statements indicating that the family had relocated permanently to New York; among other things, respondent told petitioner's caseworkers that she sent the younger son to Mississippi in part to make it easier to get settled after the move, and the older son stated that the family had moved from Wisconsin because of conflict between respondent and the maternal grandmother. During the removal hearing, respondent made no claim that her stay in New York was temporary, nor did she produce any evidence of continued residence in Wisconsin such as a permanent address or an anticipated date of return. Accordingly, the record before Family Court fully supported a determination that neither respondent nor her children still resided in Wisconsin and that their presence in New York was not temporary . Pursuant to Domestic Relations Law 76(1)(b), a New York court may exercise jurisdiction, as pertinent here, when no court in another state has jurisdiction, the child and a parent have a "significant connection" with New York, and "substantial evidence is available in [New York] concerning the child's care, protection, training, and personal relationships."Such a connection exists only when "the forum in which the litigation is to proceed has optimum access to relevant evidence. Maximum rather than minimum contacts with the [s]tate are required" ( Vanneck v. Vanneck, 49 N.Y.2d at 610).
The Appellate Division found that the removal and neglect proceedings in this matter did not depend primarily upon information or contacts available in Wisconsin, but on the degree of risk posed to respondent's children by her decision to permit the younger son to visit the husband. New York was the only jurisdiction with pertinent information about the husband's previous abuse of the older son, respondent's knowledge of that abuse, and the related risk to her children. The prior proceedings took place in the same Family Court where the 2007 proceedings were commenced, extended over a four-year period, and resulted in determinations that the husband had abused the older son-then approximately four years old-by repeated acts of sodomy over an extended period of time, as well as respondent's admission that she knew or should have known of the abuse, and that her failure to protect the older son constituted neglect of both sons. A New York warrant for the husband's arrest was still outstanding at the time of the temporary removal application. At the removal hearing, respondent and the older son were represented by the same attorneys who had represented them throughout the prior proceedings. Petitioner was familiar with respondent and her children, as the sons were in its care between 2001 and 2003, and it had continued to provide supervision and services to the family over the next two years. As to contacts with New York, all three of respondent's children were born here and, except for the 18-month stay in Wisconsin, resided here throughout their lives. The children's previous foster family was still in contact with them; at the emergency removal hearing, respondent's counsel advised the court that the previous foster mother had come to court and was available to act as a resource. Moreover, the record indicated that the fathers of the older son and the daughter reside in New York, although it is unclear whether they had any significant involvement in the children's lives. Accordingly, both the "significant connections" and "substantial evidence" requirements were satisfied. New York was the jurisdiction with optimum access to evidence relevant to the determinations at issue, and Family Court properly exercised jurisdiction under Domestic Relations Law 76(1)(b).
The Appellate Division observed that as an alternative basis for jurisdiction, Domestic Relations Law 76 (1)(d) provides that a New York court may exercise jurisdiction where, as here, "no court of any other state would have jurisdiction under the criteria specified in paragraph (a), (b) or (c) of [DRL 76(1) ]". Accordingly, it did not have to address whether New York's "exclusive, continuing jurisdiction" as to the sons resulting from the prior proceedings was severed by respondent's relocation to Wisconsin (DRL 76-b [1]; see 28 USC 1738A [d])
The Appellate Division rejected respondent's contention that vacatur of the 2007 neglect finding was required based upon a recent determination by the Court of Appeals holding that an untreated sex offender's residence in the same home as his minor children, without more, is insufficient to establish an imminent danger to his
children or neglect by the mother in allowing him to reside there ( Matter of Afton C. [James C.], 17 N.Y.3d 1, 11 [2011] ). In that case, no evidence of actual danger to the children other than the sex offender designation was presented, but the Court of Appeals acknowledged that previous crimes against a child in an offender's care might be sufficient to establish such danger. In this case, the neglect finding against respondent was supported by evidence that the husband had sexually abused a child in his care, and by considerable additional evidence.

Important New Decisions - December 27, 2011

2011-12-27T08:35:00.000-05:00

Where Family Court Has No Jurisdiction to Issue Order of Protection, Such Order Is Void Ab Initio for All Purposes, Including the Power to Hold a Party in Contempt

In Matter of Parrella v Freely, --- N.Y.S.2d ----, 2011 WL 6091331 (N.Y.A.D. 2 Dept.) in January 2010 the appellant was dating the former boyfriend of Lisa Ann Parrella, with whom Parrella had a child. At that time, Parrella filed a petition against the appellant, alleging that the appellant violated a previous order of protection. On July 13, 2010, the Family Court entered an order which, granted the petition and directed the appellant to stay away from Parrella and to refrain from communicating with or about Parrella for a period of two years. The Appellate Division reversed finding that the Family Court lacked subject matter jurisdiction over the proceeding. It observed that Family Court is a court of limited jurisdiction and, thus, it cannot exercise powers beyond those granted to it by statute. It held that where the Family Court has no jurisdiction to issue an order of protection or temporary order of protection initially, such an order is void ab initio for all purposes, including the power to hold a party in contempt (citing Matter of Robert B.- H. [Robert H.], 82 AD3d 1221, 1222; see Matter of Fish v. Horn, 14 N.Y.2d 905, 906). Pursuant to Family Court Act 812(1), the Family Court's jurisdiction in family offense proceedings is limited to certain proscribed criminal acts that occur among enumerated classes of people, including persons who share an "intimate relationship" with each other (Family Ct Act 812[1][e]. Here, there was no evidence in the record that the appellant and Parrella had a direct relationship. Instead, the evidence revealed that the parties had met personally only during the course of the court proceedings and that the appellant had never met Parrella's child. Therefore, there was no evidence that the parties' relationship was an "intimate relationship" within the meaning of Family Court Act 812(1)(e). Since the parties did not have an "intimate relationship" within the meaning of Family Court Act 812(1)(e), the Family Court lacked subject matter jurisdiction to issue the original order of protection or to issue the order appealed from.

Courts Will Not Require Children to Subsidize Parent's Financial Decision to Forgo Present Employment for Potential Future Income.

In Matter of Berrada,--- N.Y.S.2d ----, 2011 WL 6090172 (N.Y.A.D. 3 Dept.) the parties were married in 1996 and had three minor children. After they separated in 2006, the mother obtained custody of the children and petitioned for child support (Matter of Berrada v. Berrada, --- AD3d ---- [appeal No. 511629, decided herewith] ). Rejecting the father's claim that he was unable to find employment, a Support Magistrate determined that he had failed to conduct a thorough job search, imputed an annual earning capacity to him of $125,000, and directed him to pay $2,834 a month in child support. The father did not file objections to that order. He did, however, file modification petitions in 2009, again asserting that he was unable to find work. The Support Magistrate dismissed the petitions, finding that the father had not demonstrated a
substantial change in circumstances. Family Court denied the father's objections and the Appellate Division affirmed. It held that in order to succeed upon his modification petitions, the father was required to establish a substantial change in circumstances since the entry of the child support order that warranted a modification of his obligation
to pay child support. At the time of the hearing, the father remained unemployed, devoting his attention to various sales enterprises that paid on commission without producing consistent income. While he made an effort to find full-time employment within his narrow area of expertise, his search did not extend elsewhere. Moreover, the
father was attempting to develop his own business and testified that he would only
"jump on" a full-time job offer if it paid a substantial salary. Notwithstanding the father's argument that the new venture constitutes a substantial change of circumstances in that it may produce income in the future, the courts will not require the children to subsidize a parent's financial decision" to forgo present employment for potential future income.

Family Court Did Not Abuse Discretion by Terminating the Father's Child Support Obligation Where Mother Deliberately and Unjustifiably Frustrated Father's Visitation.

In Matter of Luke v Luke,--- N.Y.S.2d ----, 2011 WL 6090137 (N.Y.A.D. 3 Dept.)
Petitioner (father) and respondent (mother) were the parents of one child (born in 2001). The parties separated prior to the child's birth. In 2003, the parties agreed to a stipulated order of joint custody, physical custody to the mother and visitation with the father on alternate weekends. These visits apparently only occurred for one or two months. Also in 2003, a support order was entered against the father. The father then moved to New Jersey. Each party claimed that he or she lacked contact information for the other after 2003. In 2004, Family Court issued a default order awarding the mother sole custody, with visitation to the father as agreed upon by the mother. In 2007, the father returned to Schuyler County. That same year, the mother apparently moved to New Jersey and then Pennsylvania. In 2009, the father sought Family Court's assistance to locate the mother and filed a petition seeking visitation with the parties' daughter. In October 2009, after these proceedings had commenced, the mother moved back to Schuyler County, but within a few months she moved to Steuben County. The father filed numerous petitions seeking visitation, custody and downward modification of support, and alleging that the mother violated the prior visitation order as well as temporary orders entered during these proceedings. Following a hearing Family Court awarded the parties joint custody with the child spending four days per week with the father and three days per week with the mother. The court also terminated the father's support obligation effective January 2010, the date he filed his support modification petition.
The Appellate Division held that Family Court's modification of custody has a sound and substantial basis in the record. The parties' numerous moves, the father trying to reestablish contact and the mother hindering those efforts all provided changed circumstances reflecting a need to modify the prior custody and visitation order. Although the father did not actively attempt to enforce his visitation rights and pursue his relationship with his daughter from 2003 to 2009, he testified that he had no vehicle in New Jersey, had no contact information for the mother or child and did not know how to find them. The mother stopped bringing the child to visitation after one or two months in 2003 and-despite having agreed to the visitation-filed unsubstantiated petitions to terminate the visitation soon after entering the stipulation. The mother moved numerous times, including four times during the pendency of these proceedings, and never informed the father. One was a safe house where she fled to escape domestic abuse by her paramour-abuse that was witnessed by the daughter and caused her to fear the paramour. The mother also violated almost every temporary visitation order entered during the pendency of these proceedings by failing to bring the child to visit with the father. When she did not have a suitable place to live, she wrote a letter assigning custody of her daughter and son to her paramour's adult daughter, without consulting the father. The paramour's daughter also deprived the father of his court-ordered visitation, and the mother passed blame to her. At the time of the Lincoln hearing, the child had not seen her mother for almost two months, and the mother testified that she called only when she had minutes on her phone. While the father had lost contact with his daughter for several years and did not adequately explain why he took so long to attempt to reestablish a connection, at the time of the hearing he had been working for a year to form a relationship with her. Those efforts were constantly thwarted by the mother and her paramour's daughter, who failed to bring the child to visits and even kept the child out of school on Fridays when the father was supposed to pick the child up for weekend visitation. Everyone agreed that the child should remain in the same school district; the father lived near the child's school, while the mother had moved to a different district. The father also agreed to open a preventative services file
with the local social services agency and bring the child to mental health counseling.
Family Court did not err in placing the child with the father for four days per week.
While the law expresses a preference for keeping siblings together, the rule is
not absolute and has become complicated by changing family dynamics and the
presence of multiple half siblings the court must ultimately decide what is
best for the child at issue. Here, the custody petitions regarding the mother's son-the half brother of the daughter involved in this appeal-were withdrawn or dismissed, leaving that child in the mother's custody. Evidence indicated that the son would have difficulty being separated from his half sister, but there was no evidence of ill effects to the daughter from any separation. In any event, Family Court's order left those children together for three days each week. Considering the totality of the circumstances, including the custodial interference by the mother, the record contained a sound and substantial basis for the court's custody determination.
The Appellate Division held that Family Court did not abuse its discretion by terminating the father's child support obligation. The court was authorized to suspend support payments for periods when the mother wrongfully interfered with or withheld visitation. The record supported the finding that the mother deliberately and unjustifiably frustrated the father's visitation by failing to produce the child, moving without notifying the father and attempting to informally transfer custody to another
person who also did not produce the child for visitation-again without informing
the father. Additionally, the court's custody determination placed the child in the father's care for the majority of each week, providing a basis to eliminate his support obligation. Hence, the court did not err in terminating the father's support obligation as of January 2010, the date he filed a petition seeking such relief.

Family Offense Petition is Sufficient if it Alleges specific acts committed at identified places and times, which, if proven, would constitute a family offense enumerated in Family Court Act 812(1)

In Matter of Little v Renz, --- N.Y.S.2d ----, 2011 WL 6224696 (N.Y.A.D. 2 Dept.) the Appellate Division observed that a proceeding pursuant to article eight of the Family Court Act is originated by the filing of a petition containing an allegation that the respondent committed an enumerated family offense. As a general matter, the factual allegations in a pleading must be "sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense" (CPLR 3013; Family Ct Act 165). It found that the petition in this case was not "a vague and conclusory repetition of the statutory language inasmuch as it alleged specific acts committed at identified places and times, which, if proven, would constitute a family offense . Accordingly, the allegations contained in the petition were sufficient to allege a family offense enumerated in Family Court Act 812(1), and the Family Court erred in denying the petition and dismissing the proceeding on the ground that the petition was insufficient.

Violation Petition Insufficient Where it Lacked Sufficient Specificity to Provide Respondent with Proper Notice of Alleged Violation and Failed to Outline How Petitioners Rights Prejudiced

In Miller v Miller, --- N.Y.S.2d ----, 2011 WL 6090163 (N.Y.A.D. 3 Dept.) the parties were the parents of two children, born in 2004 and 2005. A custody order entered in March 2008 granted sole legal custody to respondent (mother) with visitation to petitioner (father) as agreed between the parties. Among other provisions, it further required that the children be properly supervised at all times and that neither parent smoke or allow a third party to smoke in a vehicle in which the children are passengers. In June 2010, the father filed a violation petition alleging that the mother was in contempt of this order in that she failed to properly supervise and discipline the children, as she had permitted the older child to be violent towards others and to smoke. Finding that the petition lacked sufficient specificity to provide the mother with proper notice and failed to outline how the father's rights had been prejudiced, Family Court dismissed the petition without a hearing, but ordered a neglect investigation by the St. Lawrence County Department of Social Services. The Appellate Division affirmed. It held that the petition was subject to the requirements of CPLR 3013, and thus required to "be sufficiently particular" as to provide notice to the court and opposing party of the occurrences to be proved and the material elements of each cause of action (CPLR 3013; Family Ct. Act 165[a] ). The generalized allegations of the petition, even liberally construed, failed to provide the mother with notice of a particular event or violation such that she could prepare a defense (CPLR 3026). Further, the father failed to assert how the mother's alleged failings " 'defeated, impaired, impeded or prejudiced' " his rights, as required to sustain a civil contempt finding. Although Family Court properly ordered an investigation to determine whether a neglect or abuse proceeding should be initiated, this protective measure did not serve to remedy the defects in the father's petition. Accordingly, there was no error in the dismissal of the petition
without a hearing.

Appeal Dismissed for Failure of Appellant to Include Transcripts

In Matter of Katz v Dotan, --- N.Y.S.2d ----, 2011 WL 6091334 (N.Y.A.D. 2 Dept.) the Appellate Division observed that it is the obligation of the appellant to assemble a proper record on appeal (see Family Ct Act 1118; CPLR 5525[a]). The failure to provide necessary transcripts inhibits the Court's ability to render an informed decision on the merits of the appeal. In this case, the full record of the proceedings in the
Family Court had not been transcribed. The appeal was dismissed, as the papers provided were patently insufficient for the purpose of reviewing the issues the father has raised.

Appeal Dismissed for Failure to Full Trial Transcript in Record

In Clarke v Clarke, --- N.Y.S.2d ----, 2011 WL 6225188 (N.Y.A.D. 2 Dept.) the plaintiff appealed from a judgment of the Supreme Court which, after a nonjury trial, inter alia, failed to direct the defendant to pay child support arrears, failed to award her maintenance, and failed to equitably distribute the value of the defendant's medical license. The Appellate Division dismissed the appeal. It observed that an appellant is obligated to assemble a proper record on appeal, which must include any relevant transcripts of proceedings before the Supreme Court (CPLR 5525[a]; 5526). The record must also "contain all of the relevant papers that were before the Supreme Court, including the transcript, if any, of the proceedings" ( Matison v. County of Nassau, 290 A.D.2d 494, 494). Here, the plaintiff appealed from a judgment which failed to direct the defendant to pay child support arrears, failed to award the plaintiff
maintenance, and failed to equitably distribute the value of the defendant's medical license. However, the plaintiff's failure to provide the Court with the full transcript of the nonjury trial conducted before the Supreme Court rendered the record on appeal inadequate to enable the Court to reach an informed determination on the merits. Thus, the appeal had to be dismissed.

Father's Failure to Properly File a Full Record on Appeal, Despite His Contrary Statement Made Pursuant to CPLR 5531, Warranted Imposition of Costs

In Haleniuk v. Persaud, 89 A.D.3d 601, 933 N.Y.S.2d 33 (1 Dept, 2011), in affirming the order of Family Court, the Appellate Division found that the evidence in the record sufficiently supported Family Court's finding that the father failed to meet his burden of showing that the child was constructively emancipated. Although the record reflected a strained relationship between the father and child, it did not support a finding that the child completely refused to have a relationship with the father. The Appellate Divison held that the father's failure to properly file a full record on appeal, despite his contrary statement made pursuant to CPLR 5531, warranted the imposition of costs incurred in preparing and filing a respondent's appendix (CPLR 5528[e]; 22 NYCRR 600.10[c][1] ).

Important New Decisions - December 7, 2011

2011-12-07T11:05:00.000-05:00

Child Denied the Meaningful Assistance of Appellate Counsel Where Attorney for Child Failed to Consult with and Advise Child in Manner Consistent with the Child's Capacities"

In Matter of Lamarcus E., --- N.Y.S.2d ----, 2011 WL 5984243 (N.Y.A.D. 3 Dept.)
Respondent was the father of the child (born in 2002). In August 2009, while under petitioner's supervision, the father told petitioner that he intended to relocate to Connecticut in October 2009 to work and live with his girlfriend, but that he would not be taking his son with him. Thereafter, petitioner filed a neglect petition against the father alleging that he planned to permanently relocate to Connecticut without his child and without any viable plan for the child's care in his absence, and that the father planned to place the child in foster care. Upon receipt of the petition, Family Court removed the child and placed him in the custody of petitioner. The father relocated to Connecticut the next day. Following a fact-finding hearing, the father was determined to have neglected his child and, after a dispositional hearing, Family Court directed that the child continue his placement with petitioner. The father appealed. No appeal was taken on behalf of the child. The Appellate Division observed that the attorney assigned to represent the child on this appeal was not the same attorney who continued to represent the child in Family Court. Although the child's appellate attorney had taken a position on this appeal that was consistent with that taken by the child's attorney in Family Court, she reported in her brief that she had not personally met with her client, who was now nine years old. She explained that the child's attorney in the ongoing proceedings in Family Court had been "able to provide me with continuing information on my client, his position and the status of the [proceedings in Family Court]." The child's appellate attorney provided the Appellate Division with no further explanation. Given the foregoing, the Appellate Division found that the child had been denied the meaningful assistance of appellate counsel. Counsel's failure to "consult with and advise the child to the extent of and in a manner consistent with the child's capacities" (22 NYCRR 7.2[d][1] ) constituted a failure to meet her essential responsibilities as the attorney for the child. Client contact, absent extraordinary circumstances, is a significant component to the meaningful representation of a child. Therefore, given the circumstances, and for the reasons clearly articulated in Matter of Mark T. v. Joyanna U. (64 A.D.3d 1092, 1093-1095 [2009] ) and Matter of Lewis v. Fuller, (69 A.D.3d 1142 [2010] ), the child's appellate counsel was relieved, the decision was withheld, and new counsel to be assigned to represent the child on the appeal.

Error to Dismiss Custody Case for Lack of Personal Jurisdiction Given Provision UCCJEA Providing That Physical Presence Of, or Personal Jurisdiction Over, a Party or a Child Not Necessary or Sufficient to Make a Child Custody Determination.

In Matter of Malek v Kwiatkowski, --- N.Y.S.2d ----, 2011 WL 5984260 (N.Y.A.D. 3 Dept.) Petitioner (father) and respondent (mother) were the unmarried parents of two daughters (born in 2004 and 2008). The father commenced the proceeding for joint custody and visitation in June 2010, alleging that the mother had relocated with the children in April 2010. The mother appeared pro se by telephone at Family Court's first two hearings, but she withheld her out-of-state address from the father because she alleged that she and the children were fearful of him. At the third appearance, the mother's counsel appeared on her behalf and claimed that she was financially unable to travel to New York at that time. Although the mother's counsel raised the issue of the lack of personal jurisdiction over his client, Family Court stated that the mother had submitted to the court's jurisdiction, set a trial date and told counsel that the mother's failure to appear on that date would result in a default. At the scheduled trial date, however, Family Court directed the mother's counsel to again make a motion to dismiss based on lack of jurisdiction, determined that the mother had not waived service by appearing and dismissed the petition with prejudice.
The Appellate Division reversed. It held that the Family Court erred in dismissing the case for lack of personal jurisdiction given the provision of the Uniform Child Custody Jurisdiction and Enforcement Act found at Domestic Relations Law 76(3), which provides that "[p]hysical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination." Further, under the circumstances, it was improper to dismiss the father's petition without first ordering service by an alternative method (see Domestic Relations Law 75-g [1][c] ). The mother had not revealed her address to the father, making normal service of process impractical. Additionally, the court had stated previously that the mother had submitted to its jurisdiction and ordered her to appear for a trial, thus giving the father no reason to believe that jurisdiction remained an issue. The court's peremptory resurrection of the issue when the mother did not appear on the trial date and its grant of the motion without affording the father an opportunity to serve the mother by alternative means was improper under these circumstances and it reversed and
remitted for that purpose.

Support Order Which Fails to Comply with Family Ct Act 413(1)(H) Is Invalid and Unenforceable.

In Matter of McKenna v McKenna, --- N.Y.S.2d ----, 2011 WL 5984262 (N.Y.A.D. 3 Dept.) upon the oral stipulation of petitioner (mother) and respondent (father), an order was entered that set the father's basic monthly child support obligation for the parties' two children at $1,235. In March 2010, the father filed an application to vacate the order, claiming that it did not comply with Family Ct Act 413(1)(h). Family Court affirmed the Support Magistrate's denial of the father's motion.
The Appellate Division reversed. It found that the order was invalid and unenforceable because it failed to include, as required, " 'a provision stating that the parties have been advised of the provisions of [the Child Support Standards Act] and that the basic child support obligation provided for therein would presumptively result in the correct amount of child support to be awarded' . While the parties acknowledged that they had agreed to the amount that the father would pay in basic child support-before any additional amount was added for child care and health insurance, no reference was made to the presumptive amount of child support under the Child Support Standards Act in their agreement or at the hearing, or in the order ultimately issued by Family Court. Because neither the agreement nor the order advised the parties in accordance with the nonwaiveable requirements of the Child Support Standards Act and the record contained no explanation as to whether or why there has
been a deviation from the child support calculation provided by that statute, the
support order at issue was invalid and unenforceable. The matter was remitted to Family Court to determine the amount of child support that the father was obligated to pay.

Mistrial Granted an New Attorney Assigned Based upon Failure of Attorney for the Child to Fulfill Attorney's Obligations under 22 Nycrr 7.2 (D) to Advocate Child’s Wishes

In Michael H v April H,--- N.Y.S.2d ----, 2011 WL 6015796 (N.Y.Fam.Ct.) on October 4, 1999, the Court issued an Order awarding April "H ("the mother") and Michael "H." ( "the father") joint legal custody of the subject child, Seth "H." with the mother having
primary physical custody of the subject child subject to a schedule of visitation
for the father. On August 3, 2011, the father filed a modification petition seeking sole legal and physical custody. The father alleged among other things, that the child has resided with the father since June 22, 2011, when the mother essentially kicked the child out of her home. During the trial, held on November 2, 2011, the Court conducted a Lincoln hearing to take the subject child's testimony under oath. See, Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 247 N.E.2d 659 [1969]. During the Lincoln hearing, the child, a mature fourteen year old, expressed a clear position to the Court and a reasonable basis for his position. During closing arguments, the Attorney for the Child advocated for a disposition that directly contradicted the wishes of the child as expressed in the Lincoln hearing.
As a result of the Attorney for the Child's closing arguments, the Court became concerned that the Attorney for the Child was not fulfilling her obligations under 22 NYCRR 7.2(d). This section requires the Attorney to zealously advocate for the child's position. See, Krieger v. Krieger, 65 AD3d 1350, 886 N.Y.S.2d 463 [2d Dept 2009]; and Mark T. v. Joyanna U., 64 AD3d 1092, 882 N.Y.S.2d 773 [3d Dept 2009]. Except in two circumstances, the Attorney for the Child must be directed by the wishes of the child even when the attorney believes that what the child wants is not in the child's best interest. The first exception applies when the child is not capable of knowing, voluntary and considered judgment.. The second exception applies when the child's wishes are likely to result in substantial risk of imminent, serious harm to the child.
After considering the events of the trial, the Court, sua sponte, moved for a mistrial and an order assigning a new Attorney for the Child to represent the child's interests going forward based upon the apparent failure of the Attorney for the Child to fulfill the attorney's obligations under 22 NYCRR 7.2 (d). In the Court's opinion the mother in effect stated that that the child was capable of knowing, voluntary and considered judgment as those terms are used by 22 NYCRR 7.2(d). Neither the father nor the Attorney for the Child argued that the child was not capable of knowing, voluntary and considered judgment. The Attorney for the Child's credit frankly acknowledged that she failed to zealously advocate for her client during the closing argument. She acknowledged that although it was an honest mistake, it was a mistake.
The Court declared a mistrial. It found that counsel's error was not harmless. Reasonable minds could differ regarding what order served the best interest of the child
and therefore, closing arguments were important in this case. If counsel elects to
make a closing argument, the closing argument may not advocate for an outcome
which directly opposed the child's position (except in the two circumstances described above). Second, if the Court were to ignore the Attorney for the Child's closing argument placed upon the record and make a decision in this case based upon the rest of the record, the legitimacy of the judicial process could be reasonably questioned. If the Court were to decide in the mother's favor, a reasonable mind may be suspicious that the Court was, in fact, not ignoring the Attorney for the Child's argument. If the Court were to decide in the father's favor, a reasonable mind may be suspicious that the Court was trying to manipulate the outcome in order to render this issue meaningless. Third, the Court could not be certain of the scope of the Attorney for the Child's error. If the error went beyond closing argument, the scope of the evidence admitted may have been effected. Given the Court's decision to declare a mistrial, it was consistent with the administration of justice and the best interest of the child to relieve the Attorney for the Child of any further responsibilities in the matter and to assign a new attorney to represent the child's interests going forward. The Court considered whether or not this issue should be raised sua sponte and acknowledged that neither parent nor the Attorney for the Child raised the issue or asked for any relief as a result of the issue. However, the trial judge was the only person present during the Lincoln hearing other than the child and the Attorney for the Child and thus, the parents and their counsel did not have an opportunity to evaluate the testimony of the child. Furthermore, the Court has an obligation to ensure that an individual's right to zealous advocacy is protected.

Important New Decisions - November 30, 2011

2011-11-30T06:56:00.001-05:00

Billing Statements of Former Attorney Inadmissible in Counsel Fee Hearing

In Matter of Denton v Barr, --- N.Y.S.2d ----, 2011 WL 5922992 (N.Y.A.D. 1 Dept.) the Appellate Divison modified an order of the Family Court which awarded petitioner attorney's fees of $110,000 and child support arrears of $11,000 to award petitioner $11,742 in child support arrears and $5,322 in interest on the arrears, and to remand the matter for clarification of the amount of attorney's fees awarded to and reversed an order which directed that the $110,000 in attorney's fees be paid to petitioner and mailed to the offices of her counsel. On a prior appeal, the Court found that pursuant to the parties' stipulation of settlement, petitioner was "entitled to attorney's fees and remanded for a hearing to determine the amount of those fees" (69 AD3d 24, 32 [2009] ). It found that the court, in determining the amount of fees due to petitioner, relied on documents that constituted inadmissible hearsay, namely, billing statements of respondent's former attorney (cf. Seinfeld v. Robinson, 300 A.D.2d 208, 209 [2002] ). The matter was remanded to the trial court for clarification of the basis for the amount of fees awarded.

Family Courts Jurisdiction is Limited to Family Offenses Committed Against Persons Listed in Family Court Act 812 Only

In Matter of Janet GG v Robert GG,--- N.Y.S.2d ----, 2011 WL 5083241 (N.Y.A.D. 3 Dept.) in March 2010, petitioner (mother) filed a Family Ct Act article 8 petition alleging that respondent (father) committed a series of family offenses against her and their two children (born in 1996 and 1998). Specifically, she alleged that on March 2, 2010, the father telephoned the children's school, spoke to a guidance counselor and demanded to see his children. Because the counselor believed that an order of protection was in place that barred the father from having such contact with his children, the counselor informed the father that he should not come to the school and, in any event, would not be allowed by school authorities to visit with his children. The father, despite this admonition, went to the school and, upon entering the premises, confronted the school superintendent demanding to see his children. After he became loud and boisterous and refused to leave the premises, the police were notified and the father was placed under arrest. The mother subsequently filed a petition claiming that this conduct qualified as a family offense and, on that basis, sought an order of protection for herself and the children. The father argued that what had occurred, even if true, did not constitute a family offense and, therefore, Family Court did not have jurisdiction. The court agreed and dismissed the petition with prejudice. The Appellate Division affirmed. It observed that Family Court's jurisdiction over family offense proceedings is limited to those acts between family members that 'would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, ...stalking, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault (Family Ct Act 812[1] ). Family Court determined that while the father's actions may have constituted disorderly conduct, they did not amount to a family offense because, when committed, the father was not in contact with the mother or either of their children. Instead, the father's actions were directed at school personnel and not any member of his family. The Appellate Division agreed. The father's actions were directed not at the mother or the children, but at school personnel, and what occurred did not constitute a family offense. As such, Family Court was without jurisdiction to entertain this petition (Family Ct Act 812).

Second Department Construes Parties' Stipulation Providing for the Distribution of "Any Pension," to Refer Only to the Portion of Pension Representing Deferred Compensation.

In Nugent-Schubert v Schubert, --- N.Y.S.2d ----, 2011 WL 5085506 (N.Y.A.D. 2 Dept.) the plaintiff former wife and the defendant former husband were divorced by judgment incorporating a stipulation of settlement. The stipulation of settlement provided for a 50% distribution to the plaintiff of the value of "any pension" received by the defendant. The plaintiff thereafter submitted to the Supreme Court a Qualified Domestic Relations Order ( QDRO), which included a provision entitling her to receive a share of any future disability pension, but limited to any portion thereof representing the defendant's earnings and years of credited service. However, the Supreme Court struck that provision of the QDRO. Subsequently, the defendant, who was employed by the New York City Police Department, retired on an accidental disability pension as a result of a line-of-duty injury. Pursuant to the QDRO in its current form, the plaintiff was receiving a portion of the defendant's accidental disability pension that represented compensation for personal injuries. The defendant moved to amend the QDRO so as to exclude this portion of his accidental disability pension from distribution to the plaintiff. The Appellate Division held that the motion should have been granted. It observed that where a QDRO is inconsistent with the provisions of a stipulation or judgment of divorce, courts possess the authority to amend the QDRO to accurately reflect the provisions of the stipulation pertaining to the pension benefits. A proper QDRO obtained pursuant to a stipulation of settlement can convey only those rights to which the parties stipulated as a basis for the judgment. Under controlling law, pension benefits, "except to the extent that they are earned or acquired before marriage or after commencement of a matrimonial action, constitute marital property" because they are "in essence, a form of deferred compensation derived from employment" during the marriage. However, any compensation a spouse receives for personal injuries is not considered marital property and is not subject to equitable distribution. Thus, to the extent [a] disability pension represents deferred compensation, it is subject to equitable distribution while to the extent that a disability pension constitutes compensation for personal injuries, that compensation is "separate property" which is not subject to equitable distribution. In Berardi v. Berardi, 54 A.D.3d at 984-985, 865 N.Y.S.2d 245 this Court concluded that, absent a provision in the stipulation specifically awarding the [wife] accident disability benefits, the Supreme Court had erred in amending the QDRO to award the wife a portion of the husband's pension representing compensation for personal injuries, as such a provision in the QDRO expanded the rights granted to the wife under the stipulation. Similarly, here, the parties' stipulation providing for the distribution of "any pension," which was entered into before the defendant became entitled to or applied for an accidental disability pension, must likewise be construed to refer only to the portion of the defendant's pension representing deferred compensation. The Appellate Division distinguished this case from its decisions in Rosenberger v. Rosenberger (63 A.D.3d 898, 882 N.Y.S.2d 426) and Pulaski v. Pulaski (22 A.D.3d 820, 820-821, 804 N.Y.S.2d 404). In those cases, the husbands had applied for disability benefits, based upon line-of-duty injuries, prior to execution of the stipulation such that they were "chargeable with knowledge of the prospect of [an] eventual disability retirement when [they] entered into the stipulation". Thus, in Pulaski and Rosenberger, where the husbands were aware, before entering into a stipulation, of the specific potential for receipt of pension benefits that they would be entitled to treat as separate property, the broad language in the stipulation referring to distribution of a pension generally, with no provision for separate-property treatment of the pension, was reasonably interpreted as intending to distribute the entire disability pension. Here, as in Berardi, where it was unknown and unanticipated that the defendant would qualify for a disability pension, there was no reason to conclude that a general provision providing for equal distribution of "any pension" was intended to opt out of the controlling law in order to distribute portions of any such pension that would not ordinarily be subject to equitable distribution. The fact that the plaintiff submitted a QDRO which would have limited the distribution of any future disability pension to that portion representing deferred compensation further evinced the parties' understanding that separate-property portions of "any pension" received by the husband would not be subject to distribution.

Third Department Affirms Initial Custody Award Made without Evidentary Hearing

In Matter of Cole v Cole, --- N.Y.S.2d ----, 2011 WL 4975299, 2011 N.Y. Slip Op. 07328 (NYAD 3 Dept) Petitioner (father) and respondent (mother) were the parents of two sons (born in 2007 and 2008). In June 2010, the father filed a petition for custody of the children. He thereafter left the marital residence at the home of the maternal grandmother, and relocated to the paternal grandmother's home. In July 2010, the mother filed a petition seeking custody of the children. At the initial appearance, Family Court assigned an attorney for the children and temporarily ordered joint legal custody of the children with physical custody to the mother and, when the mother was working, childcare provided by the father at the maternal grandmother's home. At the next appearance, the father requested shared physical custody of the children and Family Court granted this as to weekends, when the mother was working. At the third and final appearance, in November 2010, Family Court issued a final order essentially based upon this same arrangement. The Appellate Division affirmed. It rejected the mother’s argument that Family Court erred by issuing a final order without conducting a hearing or engaging in other formalities such as placing stipulations or consent of the parties upon the record. An evidentiary hearing is generally necessary to determine custody matters, but it is not obligatory where, as here, no request is made and the court has sufficient information to undertake a comprehensive independent review of the [children's] best interests. Although no sworn testimony was taken, all three appearances before Family Court were attended by each of the parents, their respective attorneys, and both grandmothers, and the court invited and received input from all involved. The attorney for the children attended the two later appearances, and advocated a position based on interviews with the mother, her employer, the father and various service providers for the children. Further, the Chemung County Department of Social Services provided Family Court with a report assessing the needs of the children and the current family circumstances. The two parents, with the support of the two grandmothers, were essentially collaborating relative to the matters of sharing time and the responsibilities of caring for their children during the course of the proceedings, and Family Court found this structure in the best interests of the children. Although the mother was represented by counsel at all three appearances, at no time did she or her counsel request a hearing or other formalities. Upon review, it found that Family Court had sufficient information before it to support the determination.

Third Department Holds that In Neglect Proceeding Attorney for Children May Advocate a Different Position When the Children's Wishes Would Likely "Result in a Substantial Risk of Imminent, Serious Harm to the Children

In Matter of Alyson J, --- N.Y.S.2d ----, 2011 WL 5083950 (N.Y.A.D. 3 Dept.) a neglect proceeding, the Appellate Division disagreed with respondent's contention that the attorney for the children failed to adequately represent the children's interests. It pointed out that the duty of the attorney for the children is to advocate and express the children's wishes to the court, but on occasion it is acceptable for counsel to deviate from this obligation; the attorney is specifically allowed to advocate a different position when the children's wishes would likely "result in a substantial risk of imminent, serious harm to the child[ren]" (Citing (22 NYCRR 7.2 [d][3]; see Matter of Mark T. v. Joyanna U., 64 A.D.3d 1092, 1093-1094 [2009], lv denied 15 N.Y.3d 715 [2010] ). Here, counsel had been involved with the children for several years and was well aware of their conditions, and the Appellate Division accepted the contrary position as in the best interests of the children. At the fact-finding hearing, the attorney for the children did indicate his clients' wishes, and properly informed Family Court that he was deviating from them.

Child Support Provisions of So-ordered Stipulation Which Did Not Contain Recitals Mandated by the CSSA Not Enforceable, But Remaining Provisions Held Enforceable.

In Bushlow v Bushlow--- N.Y.S.2d ----, 2011 WL 5222909 (N.Y.A.D. 2 Dept.) the Appellate Division held that contrary to the plaintiff's contention, the parties' so-ordered stipulation of settlement dated January 26, 2009, which was incorporated, but not merged, into the judgment of divorce, did not comply with the requirements of the Child Support Standards Act (Domestic Relations Law 240[1-b][h]). The stipulation did not recite that the parties were advised of the provisions of the CSSA, and that the basic child support obligation provided for therein would presumptively result in the correct amount of support to be awarded. "[A] party's awareness of the requirements of the CSSA is not the dispositive consideration under the statute" (Lepore v. Lepore, 276 A.D.2d 677, 678, 714 N.Y.S.2d 343). Moreover, the parties' prorated shares of child care expenses and future reasonable unreimbursed health care expenses deviated from the CSSA guidelines, since they were not calculated based upon the parties' "gross (total) income as should have been or should be reported in the most recent federal income tax return" (Domestic Relations Law 240[1-b][b][5][I]; 240 [1-b][c][1]). Thus, the stipulation was required to contain the additional recitals setting forth, inter alia, the amount that the basic child support obligation would have been under the CSSA (see Domestic Relations Law 240[1-b][h]). Since the so-ordered stipulation of settlement did not contain the specific recitals mandated by the CSSA, its provisions, insofar as they concerned the plaintiff's basic child support payment and "add-ons" for child care and unreimbursed health care expenses, were not enforceable. Accordingly, the Supreme Court should not have incorporated them into the judgment of divorce. However, contrary to the plaintiff's contention, the remaining provisions of the so-ordered stipulation, and the parties' open-court stipulation entered into on September 9, 2008, continued to be enforceable. The record did not support a finding that these provisions were closely intertwined with the basic child support provisions. The matter was remitted to the Supreme Court, for a determination of the basic child support obligation, including the parties' prorated contributions towards child care and reasonable unreimbursed health care expenses, in accordance with the CSSA.

Appellate Division Explains Doctrine of Res Judicata and Collateral Estoppel. Incidents in Counterclaim Occurring More than 5 Years Before Commencement May Be Properly Included If Relevant to Evaluation of Party's Claim for Cruelty Divorce.

In Maybaum v Maybaum, --- N.Y.S.2d ----, 2011 WL 5244417 (N.Y.A.D. 2 Dept.) the defendant wife and the plaintiff husband were married on March 13, 1995. Two children were born of the marriage. In April 2010, the defendant commenced a proceeding pursuant to article 8 of the Family Court Act, alleging that the plaintiff committed certain family offenses. Thereafter, the plaintiff commenced the action for a divorce on the ground of cruel and inhuman treatment. On April 27, 2010, the parties appeared before the Family Court and entered into a stipulation on the record. The parties stipulated that the defendant was withdrawing the pending family offense petition, with prejudice, in exchange for the plaintiff giving the defendant exclusive use of the marital residence. The parties agreed that the stipulation was binding in the action for a divorce pending in the Supreme Court. Subsequently, the defendant answered the complaint in this action and asserted a counterclaim for a divorce and ancillary relief on the ground of cruel and inhuman treatment. In reply, the plaintiff asserted affirmative defenses, including, as a third affirmative defense, that the defendant's counterclaim was insufficiently specific to meet the requirements of CPLR 3016(c), and, as a fourth affirmative defense, that the counterclaim was barred, in whole or in part, by the doctrines of res judicata, collateral estoppel, and equitable estoppel, based on the stipulation between the parties. The parties made several motions and cross motions for relief.
The Appellate Division held that the Supreme Court erred in granting the plaintiff's motion to strike stated paragraphs of the defendant's counterclaim on the grounds of res judicata, collateral estoppel, and equitable estoppel. The allegations in the defendant's counterclaim for a divorce on the ground of cruel and inhuman treatment, and the allegations in the plaintiff's family offense petition, did not arise out of the same transaction or series of transactions. "It is not always clear whether particular claims are part of the same transaction for res judicata purposes. A 'pragmatic' test has been applied to make this determination-analyzing 'whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage' " (Xiao Yang Chen v. Fischer, 6 N.Y.3d 94, 100-101). Applying this test, it concluded that the family offense petition and counterclaim for a divorce on the ground of cruel and inhuman treatment did not form a convenient trial unit. Thus, the defendant was not precluded from litigating her counterclaim for a divorce on the ground of cruel and inhuman treatment in the separate action in the Supreme Court.
The Appellate Division pointed out that collateral estoppel, or issue preclusion, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party, whether or not the tribunals or causes of action are the same. The doctrine applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action. Collateral estoppel effect will only be given to matters actually litigated and determined in a prior action. An issue is not actually litigated if, for example, there has been a default, a confession of liability, a failure to place a matter in issue by proper pleading or even because of a stipulation. Here, the issue of whether the plaintiff committed certain acts against the defendant was never determined in the Family Court proceeding, and the defendant's participation in the stipulation to withdraw her family offense petition, with prejudice, could not be construed to be the kind of determination following a full and fair opportunity to litigate the issues that would be necessary to collaterally estop the defendant from establishing that the plaintiff committed the alleged acts. Further, the circumstances set forth by plaintiff simply did not rise to a level of unconscionability warranting application of equitable estoppel.
Since the doctrines of res judicata, collateral estoppel, and equitable estoppel did not preclude the defendant from litigating certain of the allegations in her counterclaim that were alleged in her family offense petition, the Supreme Court should have granted defendant's cross motion to dismiss the plaintiff's fourth affirmative defense alleging that the defendant's counterclaim was barred in whole or in part by the doctrines of res judicata, collateral estoppel, and equitable estoppel, as that defense has no merit.
The Appellate Division held that Supreme Court erred in granting plaintiff's motion to strike stated paragraphs of the defendant's counterclaim, in effect, as time-barred on the ground they alleged acts occurring more than five years prior to the commencement of the action. The allegations in the counterclaim relating to incidents occurring more than five years before the commencement of the action may be properly included to the extent that those allegations may be relevant to an evaluation of a party's claim for a divorce on the ground of cruel and inhuman treatment in the context of the entire marriage.

Family Court Erred by Granting the Father's Motion for Summary Judgment Modifying Custody Order Without Allowing Mother Opportunity to Present Evidence. Due Process Requires That a Parent Be Afforded "A Full and Fair Opportunity to Be Heard

In Matter of Jeffrey JJ v Stephanie KK, --- N.Y.S.2d ----, 2011 WL 4975012 (N.Y.A.D. 3 Dept.) Petitioner ( father) and respondent (mother) were the parents of a daughter (born in 2003). Pursuant to a prior order of custody, the parties' apparently shared legal custody of the child; the mother had primary physical custody and the father had liberal visitation time. The father commenced a proceeding seeking primary physical custody of the child after the Rensselaer County Department of Social Services commenced a neglect proceeding against the mother and her husband (stepfather) after receiving a report that the stepfather had been intoxicated while driving with the mother, the subject child and another child in the vehicle. At the fact-finding hearing, the father presented evidence of an existing order of protection that prohibited the stepfather from having any contact with the subject child until July 30, 2010. The father then made an oral motion for Family Court to award him custody, which the court granted over the mother's objection, after it concluded that it was "impossible [for] ... the child's primary residence to be with the mother[,] who is living with [the stepfather,] against whom there is an order of protection." The court further concluded that the issue of the child's best interests had "almost been determined by virtue of the fact that there is an order of protection against" the stepfather. The court then awarded the father primary physical custody of the child with parenting time to the mother. The Appellate Division agreed with the mother that Family Court erred by granting the father's motion without allowing her an opportunity to present any evidence. In a proceeding pursuant to Family Ct. Act article 6 seeking modification of a prior custody order, a full and comprehensive hearing is required. At such hearing, due process requires that a parent be afforded "a full and fair opportunity to be heard. Family Court violated the mother's due process rights when it granted the father's motion for summary judgment on the petition without permitting the mother an opportunity to present any evidence, call any witnesses, or even testify on her own behalf. While the court believed that the order of protection against the stepfather rendered it impossible for it to award the mother primary physical custody, on cross-examination the stepfather indicated that he was willing to move out of the mother's residence until that order expired. However, the mother was denied an opportunity to present evidence regarding the feasibility of this plan when the court granted the father's motion. In a footnote the court observed that the prior order was not included in the record on appeal, which omission ordinarily results in dismissal of the appeal (see Matter of Pratt v. Anthony, 30 A.D.3d 708, 815 N.Y.S.2d 832 [2006] ). However, since there was no dispute as to the terms of the prior order, which were put on the record in open court by Family Court, it decided to reach the merits of this appeal

Second Department Explains Requirements of Anders Brief and Responsibilities of Counsel in Relieving Assigned Counsel Who Filed Inadequate Brief

In Matter of Giovani S, --- N.Y.S.2d ----, 2011 WL 5222834 (N.Y.A.D. 2 Dept.) the mother appealed from a fact-finding order in a child protective proceeding which found that she had neglected the child. The mother's counsel submitted a brief pursuant to Anders v. California (386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493), in which he moved for leave to withdraw as counsel for the appellant. The Appellate Division granted the motion, relieved assigned counsel for the appellant and appointed a new attorney as counsel to perfect the appeal from the fact-finding order. In its decision, written by Justice Skelos, the Court reviewed the basic principles espoused in Anders and their proper application, as well as the responsibilities of counsel in relation to the filing of briefs pursuant to Anders.
The Court observed that the fundamental principles upon which Anders was founded apply in both criminal and family law cases. The Due Process and Equal Protection Clauses of the Fourteenth Amendment converge to require that indigent criminal defendants, faced with the risk of loss of liberty or grievous forfeiture are granted equal rights to appeal through the representation and advocacy of assigned counsel. Likewise, a parent's concern for the liberty of the child, as well as for his care and control, involves too fundamental an interest and right to be relinquished to the State without the opportunity for a hearing, with assigned counsel if the parent lacks the means to retain a lawyer (Matter of Ella B., 30 N.Y.2d 352, 356-357. Accordingly, indigent parties to certain Family Court proceedings, such as child protective proceedings pursuant to Family Court Act article 10, are entitled to be represented by assigned counsel (Family Ct Act 262[a][i]. Nonetheless, there is one limitation placed upon the right to counsel on appeal. It does not include the right to counsel for bringing a frivolous appeal. The United States Supreme Court in Anders set forth a procedure, subsequently adopted by the New York State Court of Appeals, which, when properly utilized in the context of potentially frivolous appeals, safeguards an indigent appellant's rights (see Anders v. California, 386 U.S. at 744). According to that procedure, if, after a conscientious examination of the record, assigned counsel finds a case to be wholly frivolous, counsel should so advise the court and request permission to withdraw. In fulfilling assigned counsel's role as an active advocate such requests to withdraw must be accompanied by a brief reciting the underlying facts and highlighting anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court--not counsel--then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If the court "finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal. If, however, the court is satisfied that counsel has diligently investigated the possible grounds of appeal, and agrees with counsel's evaluation of the case, then leave to withdraw may be allowed, and the appeal decided.
The Appellate Division pointed out that there are essentially two steps to the Court's review of an attorney's motion to be relieved pursuant to Anders. First, the Court must satisfy itself that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client's appeal. Significantly, although an indigent whose appeal is frivolous has no right to have an advocate make his case to the appellate court, such an indigent does, in all cases, have the right to have an attorney, zealous for the indigent's interests, evaluate his case and attempt to discern nonfrivolous arguments. "Every advocate has essentially the same professional responsibility whether he or she accepted a retainer from a paying client or an appointment from a court. In the fulfillment of that responsibility, counsel should promptly obtain any transcripts, and consult with the client, as well as with trial counsel (see People v. Stokes, 95 N.Y.2d at 637; People v. Gonzalez, 47 N.Y.2d at 610-611). Further, assigned counsel "must master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal. In searching for the strongest arguments available, the attorney must be zealous and resolve all doubts and ambiguous legal questions in favor of his or her client. Only after such a diligent and conscientious examination of the case will counsel be in a position to determine that there are no nonfrivolous issues to raise on appeal. Once that determination is made, as counsel must file a brief "reciting the underlying facts and highlighting anything in the record that might arguably support the appeal. The Court noted that the Court of Appeals' decisions in Stokes and Gonzalez provide guidance as to what will be considered a deficient brief. These cases demonstrate, counsel must, at a minimum, draw the Court's attention to the relevant evidence, with specific references to the record; identify and assess the efficacy of any significant objections, applications, or motions; and identify possible issues for appeal, with reference to the facts of the case and relevant legal authority. Counsel cannot merely recite the underlying facts, and state a bare conclusion that, after reviewing the record and discussing the case with the client, it is the writer's opinion that there are no nonfrivolous issues to be raised on appeal . Where counsel has failed in his or her role as advocate by filing a deficient brief, on this basis alone, new counsel will be assigned to represent the appellant on the appeal. If the Court is satisfied, however, that counsel diligently examined the case on the indigent appellant's behalf, the next step in the Court's review is to determine, based upon an independent review of the record, whether counsel's assessment that there are no nonfrivolous issues for appeal is correct. In analyzing whether nonfrivolous appellate issues exist, it is essential to appreciate the distinction between a potential appellate argument that is merely meritless or unlikely to prevail and one that is frivolous. There must, however, be a finding of frivolity, not merely an evaluation of the likelihood that the defendant will prevail on the merits, because the exception to the constitutional requirement that certain indigent parties receive representation on appeal is predicated on the fact that the Fourteenth Amendment does not require appointed counsel to press wholly frivolous arguments. Thus, once a court determines that the trial record supports arguable claims, there is no basis for the exception" and the indigent appellant is entitled to representation. Accordingly, it is inappropriate for the Court to analyze the merits of any particular appellate issue where the appellant has not received the benefit of a merits-based brief prepared by counsel. The question, therefore, to be answered by the Court in every Anders case is only whether "the appeal lacks any basis in law or fact". The question is not whether the appeal presents any issues that have merit, but whether it presents any issues that are "arguable" on the merits .
Turning to the present appeal, the Appellate Division found that counsel's Anders application failed on both levels of review. The Anders brief filed by assigned counsel for the mother contained a four-page statement of facts, in which he reviewed the testimony given by the sole witness (a police officer) presented by ACS, and ACS's documentary evidence. The brief reviewed only the witness's direct testimony, not the mother's counsel's cross-examination, and did not identify and evaluate the mother's counsel's objections. Significantly, although this case was resolved on motions, counsel's brief merely stated that motions were made, and indicates how they were decided, but does not include any summary of the arguments made by the parties. Finally, counsel failed to analyze any possible appellate issues or highlight anything in the record that might arguably support the appeal. The "argument" section of counsel's brief merely stated in conclusory fashion: "The undersigned has fully analyzed the record below, performed the necessary legal research, and it is my legal opinion that there are no nonfrivolous issues to raise on appeal." Accordingly, counsel failed in his role as advocate by filing a deficient brief, and, on this basis alone, the mother was entitled to new counsel. It noted that based upon an independent review of the record, the record presented nonfrivolous issues including, but not limited to, whether ACS met its burden of showing that, as alleged in the petition, the mother was involved in a drug sale in the child's presence; whether ACS's evidence was insufficient to establish neglect, at least as a matter of law and relatedly, whether the matter was improperly decided on a motion for summary judgment.

Important New Decisions - November 11, 2011

2011-11-16T14:08:00.000-05:00

Presumptive Amount of Temporary Maintenance Unjust or Inappropriate Where There Were Substantial Marital Assets Subject to Equitable Distribution, and Plaintiff Waited 3 ½ Years Prior to Seeking Temporary Maintenance

In Salai v Salai, --- N.Y.S.2d ----, 2011 WL 5526030 (N.Y.Sup.) Plaintiff wife moved for an order of temporary spousal maintenance of $9,571.22 per month. The parties were married on September 15, 1979. Plaintiff was a teacher in the husband was an attorney in private practice. Defendant was not opposed to the payment of some temporary maintenance but argued that plaintiff's requested amount exceeded her needs. The Supreme Court observed that Domestic Relations Law 236(B)(5-a)(c) provides the formula to calculate the presumptively correct award amount, which it applied to the parties' admitted income levels. It noted that DRL 236(B)(5-a)(d) provides that "the guideline amount of temporary maintenance shall be the lower" of two calculations, in this case $114,885 or $9,571 monthly. DRL 236(B)(5-a)(e)(1) provides that "[t]he court shall order the presumptive award of temporary maintenance in accordance with paragraphs c and d of this subdivision, unless the court finds that the presumptive award is unjust or inappropriate and adjusts the presumptive award of temporary maintenance accordingly based upon consideration of 17 factors. Having considered those factors the court found that an award of the presumptive amount calculated would be inappropriate and unjust because there were substantial marital assets subject to equitable distribution, and plaintiff had maintained a separate pre-divorce household for a period of three and one half years prior to seeking temporary maintenance. Review of the parties' Statements of New Worth indicated that approximately $2,440,000 of marital property was available for equitable distribution. Moreover, plaintiff maintained a pre-divorce separate household for three years and one-half years prior to seeking temporary maintenance. (DRL 236 (B)(5-a)(e)(1)(g)). Plaintiff had been virtually self supporting, aside from a $25,000 payment from defendant for a new car, for that period. This was not a case where the less-moneyed spouse can be said to have forgone her own career or educational ambitions in favor of the more moneyed spouse. Plaintiff has realized her full earning capacity and was not in need of any additional education. She had a Bachelor of Science degree, a permanent teaching certification,
and a full time permanent position paying $75,931 per year in the Penfield School
District. These factors together, together with the fact that a permanent
maintenance award, if any given the extent of equitable distribution contemplated
and plaintiff's ability to be virtually self supporting in her current job, argued
for a temporary maintenance award substantially less than the presumptive amount.
However, as plaintiff's earned income alone did not quite meet her reported current monthly expenses, it was appropriate to order an amount of maintenance to allow plaintiff to meet her expenses. Plaintiff took home $4,287 per month after taxes from her employment as a teacher. Plaintiff's claimed expenses were $5,886 per month. The
difference being $1,599 per month. In addition, while the parties appeared to live
well within their means, some consideration for the parties' standard of living
during the marriage had to be made. DRL 236(B)(5- a)(e)(1)(a). Accordingly, the court awarded maintenance in the amount of $3,000 per month, or $36,000 per year.

Fourth Department States That Federal Poverty Income Guidelines Do Not Apply Where Income Is Imputed in Excess of Guidelines Amount

In Niagra County Department of Social Services ex rel Hueber v Hueber, --- N.Y.S.2d ----, 2011 WL 5433691 (N.Y.A.D. 4 Dept.) the Support Magistrate imputed income to Respondent based on the minimum wage for a period of over three years and ordered that he pay child support arrears for that period of $1,870.68. It was undisputed that the father was incarcerated for all but the last 4 ½ months of that time period. The Appellate Divison affirmed. It held that the Support Magistrate did not abuse her discretion by imputing income to the father for the period during which he was incarcerated for the purpose of calculating his child support obligation. To the extent that the father's financial hardship was the result of his own wrongful conduct, he was not entitled to a reduction of his obligation to pay child support ( Matter of Knights v. Knights, 71 N.Y.2d 865, 866-867). The father's contention that the child support arrears should be reduced to $500 because his income was below the federal poverty income guidelines was not preserved for review inasmuch as it is raised for the first time on appeal. In any event, the Appellate Division stated that his contention was without merit because the father's income for the purpose of calculating his child support obligation includes imputed income (Family Ct Act 413[1][b][5][iv], [v] ), and thus his income was above the federal poverty income guidelines (see generally s 413[1][g]; Matter of Julianska v. Majewski, 78 AD3d 1182). The father's further contention that a local ordinance limiting the locations where registered sex offenders may be employed has prevented him from finding employment was not raised in his written objections to the Support Magistrate's order and thus was not preserved for review.

Order of Protection Properly Denied Where Communications Sent with Legitimate Purpose of Attempting to Reconcile with Petitioner

In Ovsanik v Ovsanik, --- N.Y.S.2d ----, 2011 WL 5433772 (N.Y.A.D. 4 Dept.)
the Appellate Divison reversed an order of protection granted by the Family Court finding that Petitioner failed to meet her burden of proving by a preponderance of the evidence that respondent committed acts constituting a family offense. The
record established that the parties were married in 1987 and that, on at least two
occasions prior to the events leading up to the petition, the parties separated and then reconciled. In July 2009, petitioner left the marital home and began staying at a motel. Between October 2009 and September 2010, respondent visited petitioner at the motel on a daily basis, and it was undisputed that petitioner consented to those visits. In September 2010, petitioner informed respondent that she no longer wanted to be married to him and that he should no longer visit her. In an attempt to reconcile with petitioner, respondent left four handwritten letters and a store-bought card for her over a period of approximately one month. During that same period of time, respondent knocked on the door of petitioner's motel room at approximately 2 A.M. at least once or
twice. When respondent knocked on her door, petitioner ignored him, and respondent
left after a few minutes. Because petitioner worked overnight shifts, it was not unusual for her to be awake at 2 A.M., and respondent previously had visited petitioner during the early morning hours before September 2010. In light of the foregoing, the evidence was insufficient to establish that respondent acted with "no legitimate purpose" within the meaning of the stalking statute (Penal Law 120.45). "[T]he phrase 'no legitimate purpose' means the absence of a reason or justification to engage someone, other than to hound, frighten, intimidate or threaten" (People v. Stuart, 100 N.Y.2d 412, 428). Here, the letters and the card were sent with the legitimate purpose of attempting to reconcile with petitioner, a purpose that was not unreasonable based upon the parties' lengthy marriage and history of separation and reconciliation. The evidence was also insufficient to establish that respondent knew or reasonably should have known that his conduct caused "material harm to [petitioner's] mental or emotional health". Notably, there was nothing on the face of the letters or the card that was improper or threatening. Petitioner's testimony that respondent was physically violent during
the marriage did not tend to establish that respondent's conduct in 2010 constituted stalking. Indeed, the only incident of violence that was described in any particularity occurred in the early 1990s. Although there was no statute of limitations for family offenses, and acts not "relatively contemporaneous with the date of the petition" are entitled to consideration (Family Ct Act 812[1]), petitioner's remote allegations of physical violence did not establish "a cognizable pattern of behavior" on respondent's part so as to render his behavior devoid of any legitimate purpose.

Attorney Witness Properly Disqualified Based upon Advocate Witness Rule

In Jozefik v Jozefik, --- N.Y.S.2d ----, 2011 WL 5433996 (N.Y.A.D. 4 Dept.) plaintiff contended on appeal that he was deprived of his right to counsel of his own choosing when Supreme Court disqualified his attorney based upon an alleged conflict of interest. The Appellate Divison rejected that contention. It observed that the decision to disqualify an attorney lies within the sound discretion of the trial court. It concluded that the court did not abuse its sound discretion in disqualifying plaintiff's attorney, based on rule 3.7 of the Rules of Professional Conduct (22 NYCRR 1200.0). Rule 3.7(a) provides that "[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact," with certain exceptions not relevant here. Although not binding upon the courts, the advocate-witness rule provides guidance for the courts in determining whether a party's attorney should be disqualified during litigation. The record established that it was likely that plaintiff's original trial attorney would be a witness on a significant issue of fact. During the first trial in this action, plaintiff testified that he requested and/or facilitated the transfer of an amount of wages ranging from $15,000 to $17,000 from his employer to his attorney's business account, and it appeared from the record that the transfer was in violation of an order appointing a receiver to receive plaintiff's income. Plaintiff's attorney transferred some of the funds to plaintiff and remitted the remaining funds to plaintiff's accountant, again in apparent violation of the above-referenced order. When the court questioned plaintiff's attorney on the record about that testimony, the attorney replied that he was "taking the Fifth." The court thereupon declared a mistrial and discharged plaintiff's attorney, reasoning that a conflict of interest had developed because the attorney was "likely to be called upon as a witness in this proceeding and may become a witness in another tribunal." Thus, the record established that plaintiff's attorney was likely to be a witness on a significant issue of fact in violation of rule 3.7 of the Rules of Professional Conduct, namely, the issue whether plaintiff violated the court's order appointing a receiver and, in so doing, diverted or otherwise obscured his income. As plaintiff conceded in correspondence to the court, his attorney "continually told [him], and apparently [his] wife's attorney did not disagree, that the only issues were the amount of child support and the amount and duration of maintenance." Thus, the extent of plaintiff's income was a significant issue of fact throughout the litigation. Notably, the record reflected that plaintiff's attorney was subpoenaed to turn over documents and to testify at trial against plaintiff. Although it appeared that plaintiff's attorney did not in fact testify at the second trial, the express language of rule 3.7 provides only that it is "likely" that the attorney will be called as a witness, and the Court concluded on this record that it was in fact likely. The Court rejected plaintiff's further contention that the court erred in failing to make a "searching inquiry ... to ascertain whether plaintiff understood the
dangers and disadvantages of self-representation. No such searching inquiry was required inasmuch as there is no right to counsel in a divorce action (see Matter of Smiley, 36 N.Y.2d 433), and the court was not obligated to elicit a waiver of such right by way of a searching inquiry before permitting plaintiff to proceed pro se.

Direction That Maintenance Be Nontaxable to Spouse Is "A Departure from the Norm Envisioned by Current Internal Revenue Code Provisions" and Requires Sufficient Evidence

In Siskind v Siskind, --- N.Y.S.2d ----, 2011 WL 5429488 (N.Y.A.D. 2 Dept.), an action for a divorce, Supreme Court, inter alia, awarded the plaintiff child support of $34,000 per year, and maintenance of $65,000 per year, nontaxable to the plaintiff, commencing on May 1, 2010, until the plaintiff reaches her 65th birthday, directed the defendant to obtain and maintain a life insurance policy of $4,000,000 to secure the child support and maintenance payments, directed that certain funds retained by the defendant's
attorneys in escrow be transferred to custodial accounts to pay for educational
expenses for the parties' two college-age children, and that the defendant be
responsible for payment of 90 percent of the college expenses of these two
children not covered by the funds in the custodial accounts, equitably distributed
the marital portions of the parties' investments by awarding the plaintiff $216,109.50, awarded the plaintiff an attorney's fee of $340,000, and denied that branch of his motion which was for a downward modification of his pendente lite child support and maintenance obligations. The Appellate Division modified. It held that in light of the parties' ages as well as their respective financial circumstances, the Supreme Court should have awarded the plaintiff $65,000 per year in maintenance until the earliest of her attainment of her 65th birthday, her remarriage, or her death. In found that there was insufficient evidence to justify Supreme Court's direction that maintenance be nontaxable to the plaintiff, which is "a departure from the norm envisioned by current Internal Revenue Code provisions" (Grumet v. Grumet, 37 A.D.3d 534, 536, 829 N.Y.S.2d 682). It also held that based on the evidence in the record, including the trial testimony, the defendant's financial records, and the tax returns of the parties and the defendant's businesses, the Supreme Court providently imputed income to the defendant and calculated the amount of child support by applying the statutory percentage of 17% to all of the defendant's income, which was $199,655, for child support purposes. While Supreme Court correctly required the defendant to obtain and maintain a life insurance policy in order to secure his maintenance and child support obligations, in view of those obligations, the amount of insurance that the defendant must maintain should be reduced from t$4,000,000 to $3,000,000. It held that the Supreme Court did not improvidently exercise its discretion in awarding an attorney's fee of $340,000 to the plaintiff in view of the relative financial circumstances of the parties, their ability to pay, the nature and extent of the services rendered, the complexity of the defendant's business endeavors, and the fact that the defendant litigated the issue of custody and visitation of the parties' daughter until it was settled by stipulation during the trial.

Child Not Constructively Emancipated Where Father Contributed to Deterioration of Relationship with His Son

In Matter of Glen LS v Deborah AS, --- N.Y.S.2d ----, 2011 WL 5431519 (N.Y.A.D. 2 Dept.) the Appellate Division observed that under the doctrine of constructive emancipation, where a minor of employable age and in full possession of his or her faculties, voluntarily and without cause, abandons the parent's home, against the will of the parent and for the purpose of avoiding parental control he or she forfeits his or her right to demand support. In contrast, where it is the parent who causes a breakdown in communication with his or her child, or has made no serious effort to contact the child and exercise his or her visitation rights, the child will not be deemed to have abandoned the parent (Matter of Alice C. v. Bernard G.C., 193 A.D.2d 97). The burden of proof as to emancipation is on the party asserting it. Here, there was an insufficient basis in the record to support the Family Court's determination that the parties' son unjustifiably refused contact and visitation with his father. The testimony elicited at the hearing established the father's claim that his son chose not to speak with him on the telephone and did not return his text messages following an altercation between the two in February 2008. However, the evidence also revealed that the altercation between the two prompted the son to state that "he wanted to commit suicide" and resulted in therapeutic intervention. Based on these mental health concerns, the son, via his mother, requested that the father not contact him so that he could "sort out" the issues, indicating a temporary reluctance on the son's part to contact the father. The father acknowledged that he made no effort to enforce visitation with the assistance of the court. The father made no efforts to contact the son through the school other than one telephone call to a guidance counselor, and admittedly never attempted to visit the son at his mother's home after the incident. All attempts at communication by the father ceased in October 2009, eight months after the incident. The father made no attempts to contact his son during his senior year of high school and made no effort to discuss or gain information regarding the son's college plans. In June 2009, having rented out a portion of his house, the father removed the son's belongings from his home and dropped them off at the mother's home with an email communicating, in effect, that the door was open for the son to come to him "[i]f eventually he can work his issues out and feels he needs the other part of his family." However, shortly thereafter, the father
refused an invitation to his son's high school graduation and failed to acknowledge or congratulate his son upon graduation in any manner. While the father sent a birthday card to his son without response in 2008, the father also failed to respond to an Easter card sent to him by his son in 2010. The Appellate Division found that the totality of the father's efforts to establish a relationship with his son, over a period of several months, could not be deemed a serious effort that was in turn egregiously rejected by the son. A child's reluctance to see a parent is not abandonment, relieving the parent of any support obligation. Rather, the doctrine of constructive emancipation is applicable to situations where the child refuses to submit to the authority and control of the noncustodial paying parent or actively abandons the noncustodial parent by refusing all contact and visitation. The facts here showed that the father contributed to the deterioration of his relationship with his son. The record demonstrated that the father's own behavior was the parallel and coequal cause of the deterioration in the relationship. Accordingly, the father failed to meet his burden of establishing that his son was constructively emancipated and Family Court should not have granted the father's petition to vacate the child support provisions of the parties' stipulation of settlement, which was incorporated but not merged into the judgment of divorce.

Interpreter Who Did Not Interpret Word for Word on One or Two Occasions, Engaged in Conversations with Witness, and Erred in Her Translation of One or Two Violated Standards for Court Interpreters

In Matter of Yovanny L, 931 N.Y.S.2d 485, 2011 N.Y. Slip Op. 21354 (Fam Ct), a juvenile delinquency proceeding, the Family Court found that that there were errors made by the court appointed Mandarin interpreter when interpreting the complainant's testimony. For example, the interpreter stated motorcycle before being corrected to say bicycle. In another instance the witness answered a question by saying he saw someone three to four times per week, while the interpreter interpreted two to three times. Additionally, at times it appeared that there was a conversation occurring between the interpreter and the complainant, and some statements may have been paraphrased rather than word-for-word.
The Family Court observed that Rule of Court 22 NYCRR 217 provides that "In all civil and criminal cases, when a court determines that a party or witness, or an interested parent or guardian in a Family Court proceeding, is unable to understand or communicate to the extent that he or she cannot meaningfully participate in the proceedings, the court shall appoint an interpreter." General standards expressed in the limited case law in this area set forth that since the interpreter is the conduit from the witness to the trier-of-fact, interpretation should be word-for-word rather than summarized, no conversation between the witness and the interpreter, no significant differences in the length of dialogue of the witness and the interpreter, and no bias or interest in the proceedings. (Citing, e.g., Matter of James L., 143 A.D.2d 533, 532 N.Y.S.2d 941; see also, Dat Pham v. Beaver, 445 F.Supp.2d 252; US v. Joshi, 896 F.2d 1303). In the OCA internal Court Interpreter Manual and Code of Ethics, the following "responsibilities" are indicated. Under "Accuracy", interpreters must faithfully and accurately interpret what is said without embellishment or omission, and there is additional advice for impartiality, confidentiality, proficiency, and professional demeanor. Under "proficiency" and "errors", interpreters must provide professional services only in areas where they can perform accurately, and when in doubt inform the court; and the interpreter must immediately inform the judge of an error, even if perceived after the proceeding has concluded. Because the interpreter did not interpret word for word on one or two occasions, engaged in conversations with the witness, and erred in her translation of one or two words, the Court found that she violated the standards for court interpreters. However, the bulk of her work, in the 30- 40 minutes of testimony, did meet proper standards, and the individual errors were isolated instances.
The Family Court noted that in People v. Singleton, 59 A.D.3d 1131, 873 N.Y.S.2d 838, the Court held that while there were some errors in interpretation, the defendant failed to establish that he "was prejudiced by those errors", and the conviction was affirmed. In People v. Dat Pham, 283 A.D.2d 952, 725 N.Y.S.2d 245, also, while there were some errors in the translation, the jury was informed of the errors, and the conviction was affirmed because the defendant did not show that he was seriously prejudiced. Other cases have held that the failure of the defendant to object as to the adequacy of the translation during trial or otherwise preserve proof of any serious error does not provide the basis for a reversal. Here the errors made were relatively minor and few, and did not affect the main aspects of the witness's testimony, and this Court, as the trier of fact in this Family Court juvenile delinquency case, was able to discern the testimony notwithstanding these errors. Therefore, as there had been no major prejudice to any party, and the drastic remedy requested by the Presentment Agency, that of striking the testimony and starting anew, was denied, as not warranted under the circumstances of this case. The Court directed that trial would resume with the continued testimony of the witness, with a different Mandarin interpreter to be supplied by the Clerk of the Court and the interpreter service unit.

Important New Decisions - November 11, 2011

2011-11-11T11:31:00.002-05:00

Child Support Provisions of So-ordered Stipulation Which Did Not Contain Recitals Mandated by the Cssa Not Enforceable, but Remaining Provisions Held Enforceable.

In Bushlow v Bushlow--- N.Y.S.2d ----, 2011 WL 5222909 (N.Y.A.D. 2 Dept.) the Appellate Division held that contrary to the plaintiff's contention, the parties' so-ordered stipulation of settlement dated January 26, 2009, which was incorporated, but not merged, into the judgment of divorce, did not comply with the requirements of the Child Support Standards Act (Domestic Relations Law 240[1-b][h]). The stipulation did not recite that the parties were advised of the provisions of the CSSA, and that the basic child support obligation provided for therein would presumptively result in the correct amount of support to be awarded. "[A] party's awareness of the requirements of the CSSA is not the dispositive consideration under the statute" (Lepore v. Lepore, 276 A.D.2d 677, 678, 714 N.Y.S.2d 343). Moreover, the parties' prorated shares of child care expenses and future reasonable unreimbursed health care expenses deviated from the CSSA guidelines, since they were not calculated based upon the parties' "gross (total) income as should have been or should be reported in the most recent federal income tax return" (Domestic Relations Law 240[1-b][b][5][I]; 240 [1-b][c][1]). Thus, the stipulation was required to contain the additional recitals setting forth, inter alia, the amount that the basic child support obligation would have been under the CSSA (see Domestic Relations Law 240[1-b][h]). Since the so-ordered stipulation of settlement did not contain the specific recitals mandated by the CSSA, its provisions, insofar as they concerned the plaintiff's basic child support payment and "add-ons" for child care and unreimbursed health care expenses, were not enforceable. Accordingly, the Supreme Court should not have incorporated them into the judgment of divorce. However, contrary to the plaintiff's contention, the remaining provisions of the so-ordered stipulation, and the parties' open-court stipulation entered into on September 9, 2008, continued to be enforceable. The record did not support a finding that these provisions were closely intertwined with the basic child support provisions. The matter was remitted to the Supreme Court, for a determination of the basic child support obligation, including the parties' prorated contributions towards child care and reasonable unreimbursed health care expenses, in accordance with the CSSA.

Party Who Accepts Benefits of Separation Agreement for Considerable Period of Time Deemed to Have Ratified it but Party Who Receives Virtually No Benefits from Agreement Cannot Be Said to Have Ratified It.

In Kessler v Kessler, --- N.Y.S.2d ----, 2011 WL 5241275 (N.Y.A.D. 2 Dept.) on June 10, 1980, after 25 years of marriage, the parties entered into a separation agreement, which provided that the plaintiff husband would make payments to the defendant wife for her support and maintenance and for the mortgage and carrying costs relating to the marital residence, where the defendant continued to reside. The plaintiff complied with the terms of the separation agreement and, in 2009, he commenced this action for a conversion divorce. In response to the plaintiff's motion for summary judgment, the defendant submitted an affidavit asserting that the plaintiff had procured the separation agreement through fraud and duress, and that the agreement was unconscionable. The defendant alleged that the plaintiff had concealed from her
his vast wealth, and had induced her to enter into the separation agreement at a time when, unbeknownst to her, New York's equitable distribution law was about to be enacted. The Supreme Court granted the plaintiff's motion for summary judgment, and subsequently entered a judgment of divorce directed the parties to comply with the terms of the separation agreement which was incorporated, but not merged into, the judgment of divorce. The Appellate Division affirmed. It held that a party who accepts the benefits provided under a separation agreement for any considerable period of time is deemed to have ratified the agreement and, thus, relinquishes the right to challenge that agreement. By contrast, when a party received virtually no benefits from the agreement, he or she cannot be said to have ratified it. Assuming the truth of the allegations set forth in the defendant's affidavit, the benefits she received pursuant to the separation agreement were far less than those she likely would have received had there been an equitable distribution of the assets accumulated during the marriage. The record, however, did not support a finding that the defendant received "virtually no benefits" from the agreement. Moreover, while a spouse will not necessarily be held to have ratified an agreement if it is found to be the product of duress and overreaching, the disadvantage to the defendant created by the alleged fraud and duress in this case could not be deemed to have persisted throughout the 29-year period during which the defendant accepted the benefits of the separation agreement without challenging it. Thus, the plaintiff made a prima facie showing that the defendant ratified the separation agreement. In opposition, the defendant failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment.

Appellate Division Explains Doctrine of Res Judicata and Collateral Estoppel. Incidents in Counterclaim Occurring More than 5 Years Before Commencement May Be Properly Included If Relevant to Evaluation of Party's Claim for Cruelty Divorce.

In Maybaum v Maybaum, --- N.Y.S.2d ----, 2011 WL 5244417 (N.Y.A.D. 2 Dept.) the defendant wife and the plaintiff husband were married on March 13, 1995. Two children were born of the marriage. In April 2010, the defendant commenced a proceeding pursuant to article 8 of the Family Court Act, alleging that the plaintiff committed certain family offenses. Thereafter, the plaintiff commenced the action for a divorce on the ground of cruel and inhuman treatment. On April 27, 2010, the parties appeared before the Family Court and entered into a stipulation on the record. The parties stipulated that the defendant was withdrawing the pending family offense petition, with prejudice, in exchange for the plaintiff giving the defendant exclusive use of the marital residence. The parties agreed that the stipulation was binding in the action for a divorce pending in the Supreme Court. Subsequently, the defendant answered the complaint in this action and asserted a counterclaim for a divorce and ancillary relief on the ground of cruel and inhuman treatment. In reply, the plaintiff asserted affirmative defenses, including, as a third affirmative defense, that the defendant's counterclaim was insufficiently specific to meet the requirements of CPLR 3016(c), and, as a fourth affirmative defense, that the counterclaim was barred, in whole or in part, by the doctrines of res judicata, collateral estoppel, and equitable estoppel, based on the stipulation between the parties. The parties made several motions and cross motions for relief.
The Appellate Division held that the Supreme Court erred in granting the plaintiff's motion to strike stated paragraphs of the defendant's counterclaim on the grounds of res judicata, collateral estoppel, and equitable estoppel. The allegations in the defendant's counterclaim for a divorce on the ground of cruel and inhuman treatment, and the allegations in the plaintiff's family offense petition, did not arise out of the same transaction or series of transactions. "It is not always clear whether particular claims are part of the same transaction for res judicata purposes. A 'pragmatic' test has been applied to make this determination-analyzing 'whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage' " (Xiao Yang Chen v. Fischer, 6 N.Y.3d 94, 100-101). Applying this test, it concluded that the family offense petition and counterclaim for a divorce on the ground of cruel and inhuman treatment did not form a
convenient trial unit. Thus, the defendant was not precluded from litigating her counterclaim for a divorce on the ground of cruel and inhuman treatment in the separate action in the Supreme Court.
The Appellate Division pointed out that collateral estoppel, or issue preclusion, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party, whether or not the tribunals or causes of action are the same. The doctrine applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action. Collateral estoppel effect will only be given to matters actually litigated and determined in a prior action. An issue is not actually litigated if, for example, there has been a default, a confession of liability, a failure to place a matter in issue by proper pleading or even because of a stipulation. Here, the issue of whether the plaintiff committed certain acts against the defendant was never determined in the Family Court proceeding, and the defendant's participation in the stipulation to withdraw her family offense petition, with prejudice, could not be construed to be the kind of determination following a full and fair opportunity to litigate the issues that would be necessary to collaterally estop the defendant from establishing that the plaintiff committed the alleged acts. Further, the circumstances set forth by plaintiff simply did not rise to a level of unconscionability warranting application of equitable estoppel.
Since the doctrines of res judicata, collateral estoppel, and equitable estoppel did not preclude the defendant from litigating certain of the allegations in her counterclaim that were alleged in her family offense petition, the Supreme Court should have granted defendant's cross motion to dismiss the plaintiff's fourth affirmative defense alleging that the defendant's counterclaim was barred in whole or in part by the doctrines of res judicata, collateral estoppel, and equitable estoppel, as that defense had no merit.
The Appellate Division held that Supreme Court erred in granting plaintiff's motion to strike stated paragraphs of the defendant's counterclaim, in effect, as time-barred on the ground they alleged acts occurring more than five years prior to the commencement of the action. The allegations in the counterclaim relating to incidents occurring more than five years before the commencement of the action may be properly included to the extent that those allegations may be relevant to an evaluation of a party's claim for a divorce on the ground of cruel and inhuman treatment in the context of the entire marriage.

Second Department Explains Requirements of Anders Brief and Responsibilities of Counsel in Relieving Assigned Counsel Who filed Inadequate Brief

In Matter of Giovani S, --- N.Y.S.2d ----, 2011 WL 5222834 (N.Y.A.D. 2 Dept.) the mother appealed from a fact-finding order in a child protective proceeding which found that she had neglected the child. The mother's counsel submitted a brief pursuant to Anders v. California (386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493), in which he moved for leave to withdraw as counsel for the appellant. The Appellate Division granted the motion, relieved assigned counsel for the appellant and appointed a new attorney as counsel to perfect the appeal from the fact-finding order. In its decision, written by Justice Skelos, the Court reviewed the basic principles espoused in Anders and their proper application, as well as the responsibilities of counsel in relation to the filing of briefs pursuant to Anders.
The Court observed that the fundamental principles upon which Anders was founded apply in both criminal and family law cases. The Due Process and Equal Protection Clauses of the Fourteenth Amendment converge to require that indigent criminal defendants, faced with the risk of loss of liberty or grievous forfeiture are granted equal rights to appeal through the representation and advocacy of assigned counsel. Likewise, a parent's concern for the liberty of the child, as well as for his care and control, involves too fundamental an interest and right to be relinquished to the State without the opportunity for a hearing, with assigned counsel if the parent lacks the means to retain a lawyer (Matter of Ella B., 30 N.Y.2d 352, 356-357. Accordingly, indigent parties to certain Family Court proceedings, such as child protective proceedings pursuant to Family Court Act article 10, are entitled to be represented by assigned counsel (Family Ct Act 262[a][i]. Nonetheless, there is one limitation placed upon the right to counsel on appeal. It does not include the right to counsel for bringing a frivolous appeal. The United States Supreme Court in Anders set forth a procedure, subsequently adopted by the New York State Court of Appeals, which, when properly utilized in the context of potentially frivolous appeals, safeguards an indigent appellant's rights (see Anders v. California, 386 U.S. at 744). According to that procedure, if, after a conscientious examination of the record, assigned counsel finds a case to be wholly frivolous, counsel should so advise the court and request permission to withdraw. In fulfilling assigned counsel's role as an active advocate such requests to withdraw must be accompanied by a brief reciting the underlying facts and highlighting anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court--not counsel--then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If the court "finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal. If, however, the court is satisfied that counsel has diligently investigated the possible grounds of appeal, and agrees with counsel's evaluation of the case, then leave to withdraw may be allowed, and the appeal decided.
The Appellate Division pointed out that there are essentially two steps to the Court's review of an attorney's motion to be relieved pursuant to Anders. First, the Court must satisfy itself that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client's appeal. Significantly, although an indigent whose appeal is frivolous has no right to have an advocate make his case to the appellate court, such an indigent does, in all cases, have the right to have an attorney, zealous for the indigent's interests, evaluate his case and attempt to discern nonfrivolous arguments. "Every advocate has essentially the same professional responsibility whether he or she accepted a retainer from a paying client or an appointment from a court. In the fulfillment of that responsibility, counsel should promptly obtain any transcripts, and consult with the client, as well as with trial counsel (see People v. Stokes, 95 N.Y.2d at 637; People v. Gonzalez, 47 N.Y.2d at 610-611). Further, assigned counsel "must master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal. In searching for the strongest arguments available, the attorney must be zealous and resolve all doubts and ambiguous legal questions in favor of his or her client. Only after such a diligent and conscientious examination of the case will counsel be in a position to determine that there are no nonfrivolous issues to raise on appeal. Once that determination is made, as counsel must file a brief "reciting the underlying facts and highlighting anything in the record that might arguably support the appeal. The Court noted that the Court of Appeals' decisions in Stokes and Gonzalez provide guidance as to what will be considered a deficient brief. These cases demonstrate, counsel must, at a minimum, draw the Court's attention to the relevant evidence, with specific references to the record; identify and assess the efficacy of any significant objections, applications, or motions; and identify possible issues for appeal, with reference to the facts of the case and relevant legal authority. Counsel cannot merely recite the underlying facts, and state a bare conclusion that, after reviewing the record and discussing the case with the client, it is the writer's opinion that there are no nonfrivolous issues to be raised on appeal . Where counsel has failed in his or her role as advocate by filing a deficient brief, on this basis alone, new counsel will be assigned to represent the appellant on the appeal. If the Court is satisfied, however, that counsel diligently examined the case on the indigent appellant's behalf, the next step in the Court's review is to determine, based upon an independent review of the record, whether counsel's assessment that there are no nonfrivolous issues for appeal is correct. In analyzing whether nonfrivolous appellate issues exist, it is essential to appreciate the distinction between a potential appellate argument that is merely meritless or unlikely to prevail and one that is frivolous. There must, however, be a finding of frivolity, not merely an evaluation of the likelihood that the defendant will prevail on the merits, because the exception to the constitutional requirement that certain indigent parties receive representation on appeal is predicated on the fact that the Fourteenth Amendment does not require appointed counsel to press wholly frivolous arguments. Thus, once a court determines that the trial record supports arguable claims, there is no basis for the exception" and the indigent appellant is entitled to representation. Accordingly, it is inappropriate for the Court to analyze the merits of any particular appellate issue where the appellant has not received the benefit of a merits-based brief prepared by counsel. The question, therefore, to be answered by the Court in every Anders case is only whether "the appeal lacks any basis in law or fact". The question is not whether the appeal presents any issues that have merit, but whether it presents any issues that are "arguable" on the merits .
Turning to the present appeal, the Appellate Division found that counsel's Anders application failed on both levels of review. The Anders brief filed by assigned counsel for the mother contained a four-page statement of facts, in which he reviewed the testimony given by the sole witness (a police officer) presented by ACS, and ACS's documentary evidence. The brief reviewed only the witness's direct testimony, not the mother's counsel's cross-examination, and did not identify and evaluate the mother's counsel's objections. Significantly, although this case was resolved on motions, counsel's brief merely stated that motions were made, and indicates how they were decided, but does not include any summary of the arguments made by the parties. Finally, counsel failed to analyze any possible appellate issues or highlight anything in the record that might arguably support the appeal. The "argument" section of counsel's brief merely stated in conclusory fashion: "The undersigned has fully analyzed the record below, performed the necessary legal research, and it is my legal opinion that there are no nonfrivolous issues to raise on appeal." Accordingly, counsel failed in his role as advocate by filing a deficient brief, and, on this basis alone, the mother was entitled to new counsel. It noted that based upon an independent review of the record, the record presented nonfrivolous issues including, but not limited to, whether ACS met its burden of showing that, as alleged in the petition, the mother was involved in a drug sale in the child's presence; whether ACS's evidence was insufficient to establish neglect, at least as a matter of law and relatedly, whether the matter was improperly decided on a motion for summary judgment.

Important New Decisions - November 4, 2011

2011-11-04T09:56:00.000-04:00

Family Courts Jurisdiction is Limited to Family Offenses Committed Against Persons Listed in Family Court Act 812 Only

In Matter of Janet GG v Robert GG,--- N.Y.S.2d ----, 2011 WL 5083241 (N.Y.A.D. 3 Dept.) in March 2010, petitioner (mother) filed a Family Ct Act article 8 petition alleging that respondent (father) committed a series of family offenses against her and their two children (born in 1996 and 1998). Specifically, she alleged that on March 2, 2010, the father telephoned the children's school, spoke to a guidance counselor and demanded to see his children. Because the counselor believed that an order of protection was in place that barred the father from having such contact with his children, the counselor informed the father that he should not come to the school and, in any event, would not be allowed by school authorities to visit with his children. The father, despite this admonition, went to the school and, upon entering the premises, confronted the school superintendent demanding to see his children. After he became loud and boisterous and refused to leave the premises, the police were notified and the father was placed under arrest. The mother subsequently filed a petition claiming that this conduct qualified as a family offense and, on that basis, sought an order of protection for herself and the children. The father argued that what had occurred, even if true, did not constitute a family offense and, therefore, Family Court did not have jurisdiction. The court agreed and dismissed the petition with prejudice. The Appellate Division affirmed. It observed that Family Court's jurisdiction over family offense proceedings is limited to those acts between family members that 'would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, ...stalking, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault (Family Ct Act 812[1] ). Family Court determined that while the father's actions may have constituted disorderly conduct, they did not amount to a family offense because, when committed, the father was not in contact with the mother or either of their children. Instead, the father's actions were directed at school personnel and not any member of his family. The Appellate Division agreed. The father's actions were directed not at the mother or the children, but at school personnel, and what occurred did not constitute a family offense. As such, Family Court was without jurisdiction to entertain this petition (Family Ct Act 812).

Second Department Construes Parties' Stipulation Providing for the Distribution of "Any Pension," to Refer Only to the Portion of Pension Representing Deferred Compensation.

In Nugent-Schubert v Schubert, --- N.Y.S.2d ----, 2011 WL 5085506 (N.Y.A.D. 2 Dept.) the plaintiff former wife and the defendant former husband were divorced by judgment incorporating a stipulation of settlement. The stipulation of settlement provided for a 50% distribution to the plaintiff of the value of "any pension" received by the defendant. The plaintiff thereafter submitted to the Supreme Court a Qualified Domestic Relations Order ( QDRO), which included a provision entitling her to receive a share of any future disability pension, but limited to any portion thereof representing the defendant's earnings and years of credited service. However, the Supreme Court struck that provision of the QDRO. Subsequently, the defendant, who was employed by the New York City Police Department, retired on an accidental disability pension as a result of a line-of-duty injury. Pursuant to the QDRO in its current form, the plaintiff was receiving a portion of the defendant's accidental disability pension that represented compensation for personal injuries. The defendant moved to amend the QDRO so as to exclude this portion of his accidental disability pension from distribution to the plaintiff. The Appellate Division held that the motion should have been granted. It observed that where a QDRO is inconsistent with the provisions of a stipulation or judgment of divorce, courts possess the authority to amend the QDRO to accurately reflect the provisions of the stipulation pertaining to the pension benefits. A proper QDRO obtained pursuant to a stipulation of settlement can convey only those rights to which the parties stipulated as a basis for the judgment. Under controlling law, pension benefits, "except to the extent that they are earned or acquired before marriage or after commencement of a matrimonial action, constitute marital property" because they are "in essence, a form of deferred compensation derived from employment" during the marriage. However, any compensation a spouse receives for personal injuries is not considered marital property and is not subject to equitable distribution. Thus, to the extent [a] disability pension represents deferred compensation, it is subject to equitable distribution while to the extent that a disability pension constitutes compensation for personal injuries, that compensation is "separate property" which is not subject to equitable distribution. In Berardi v. Berardi, 54 A.D.3d at 984-985, 865 N.Y.S.2d 245 this Court concluded that, absent a provision in the stipulation specifically awarding the [wife] accident disability benefits, the Supreme Court had erred in amending the QDRO to award the wife a portion of the husband's pension representing compensation for personal injuries, as such a provision in the QDRO expanded the rights granted to the wife under the stipulation. Similarly, here, the parties' stipulation providing for the distribution of "any pension," which was entered into before the defendant became entitled to or applied for an accidental disability pension, must likewise be construed to refer only to the portion of the defendant's pension representing deferred compensation. The Appellate Division distinguished this case from its decisions in Rosenberger v. Rosenberger (63 A.D.3d 898, 882 N.Y.S.2d 426) and Pulaski v. Pulaski (22 A.D.3d 820, 820-821, 804 N.Y.S.2d 404). In those cases, the husbands had applied for disability benefits, based upon line-of-duty injuries, prior to execution of the stipulation such that they were "chargeable with knowledge of the prospect of [an] eventual disability retirement when [they] entered into the stipulation". Thus, in Pulaski and Rosenberger, where the husbands were aware, before entering into a stipulation, of the specific potential for receipt of pension benefits that they would be entitled to treat as separate property, the broad language in the stipulation referring to distribution of a pension generally, with no provision for separate-property treatment of the pension, was reasonably interpreted as intending to distribute the entire disability pension. Here, as in Berardi, where it was unknown and unanticipated that the defendant would qualify for a disability pension, there was no reason to conclude that a general provision providing for equal distribution of "any pension" was intended to opt out of the controlling law in order to distribute portions of any such pension that would not ordinarily be subject to equitable distribution. The fact that the plaintiff submitted a QDRO which would have limited the distribution of any future disability pension to that portion representing deferred compensation further evinced the parties' understanding that separate-property portions of "any pension" received by the husband would not be subject to distribution.

Third Department Affirms Initial Custody Award Made without Evidentary Hearing

In Matter of Cole v Cole, --- N.Y.S.2d ----, 2011 WL 4975299, 2011 N.Y. Slip Op. 07328
(NYAD 3 Dept) Petitioner (father) and respondent (mother) were the parents of two sons (born in 2007 and 2008). In June 2010, the father filed a petition for custody of the children. He thereafter left the marital residence at the home of the maternal grandmother, and relocated to the paternal grandmother's home. In July 2010, the mother filed a petition seeking custody of the children. At the initial appearance, Family Court assigned an attorney for the children and temporarily ordered joint legal custody of the children with physical custody to the mother and, when the mother was working, childcare provided by the father at the maternal grandmother's home. At the next appearance, the father requested shared physical custody of the children and Family Court granted this as to weekends, when the mother was working. At the third and final appearance, in November 2010, Family Court issued a final order essentially based upon this same arrangement. The Appellate Division affirmed. It rejected the mother’s argument that Family Court erred by issuing a final order without conducting a hearing or engaging in other formalities such as placing stipulations or consent of the parties upon the record. An evidentiary hearing is generally necessary to determine custody matters, but it is not obligatory where, as here, no request is made and the court has sufficient information to undertake a comprehensive independent review of the [children's] best interests. Although no sworn testimony was taken, all three appearances before Family Court were attended by each of the parents, their respective attorneys, and both grandmothers, and the court invited and received input from all involved. The attorney for the children attended the two later
appearances, and advocated a position based on interviews with the mother, her
employer, the father and various service providers for the children. Further, the
Chemung County Department of Social Services provided Family Court with a report
assessing the needs of the children and the current family circumstances. The two
parents, with the support of the two grandmothers, were essentially collaborating
relative to the matters of sharing time and the responsibilities of caring for their children during the course of the proceedings, and Family Court found this structure in the best interests of the children. Although the mother was represented by counsel at all three appearances, at no time did she or her counsel request a hearing or other formalities. Upon review, it found that Family Court had sufficient information before it to support the determination.

Third Department Holds that In Neglect Proceeding Attorney for Children May Advocate a Different Position When the Children's Wishes Would Likely "Result in a Substantial Risk of Imminent, Serious Harm to the Children

In Matter of Alyson J, --- N.Y.S.2d ----, 2011 WL 5083950 (N.Y.A.D. 3 Dept.) a neglect proceeding, the Appellate Division disagreed with respondent's contention that the attorney for the children failed to adequately represent the children's interests. It pointed out that the duty of the attorney for the children is to advocate and express the children's wishes to the court, but on occasion it is acceptable for counsel to deviate from this obligation; the attorney is specifically allowed to advocate a different position when the children's wishes would likely "result in a substantial risk of imminent, serious harm to the child[ren]" (Citing (22 NYCRR 7.2 [d][3]; see Matter of Mark T. v. Joyanna U., 64 A.D.3d 1092, 1093-1094 [2009], lv denied 15 N.Y.3d 715 [2010] ). Here, counsel had been involved with the children for several years and was well aware of their conditions, and the Appellate Division accepted the contrary position as in the best interests of the children. At the fact-finding hearing, the attorney for the children did indicate his clients' wishes, and properly informed Family Court that
he was deviating from them.

Important New Decisions - November 1, 2011

2011-11-02T02:29:00.000-04:00

Factors Set Forth in Family Court Act 413(1)(F) Should Be Considered Only Where Court Is Able to Calculate Basic Child Support Obligation Pursuant to Family Court Act 413(1)(C), Not Where Calculated Pursuant to Family Court Act 413[1][K]

In Salvatore D. V Shyou H., --- N.Y.S.2d ----, 2011 WL 4975542 (N.Y.A.D. 1 Dept.), the Appellate Division affirmed an order which directed respondent to pay $950 a month for the support of the parties' child. It held that the Support Magistrate properly ordered child support based on the needs of the child, since respondent presented insufficient evidence to determine her gross income ( Family Court Act 413[1][k]). Respondent's stated expenses were more than twice the income reflected on her tax return. The Support Magistrate found incredible respondent's testimony regarding her employment, her living situation and loans from her employer and brother. The Support Magistrate properly declined to consider the factors set forth in Family Court Act 413(1)(f), including the child's receipt of Social Security disability benefits. Such factors should be considered only where, unlike here, the court is able to calculate the basic child support obligation pursuant to Family Court Act 413(1)(c). Respondent's testimony, including that she was a well-known esthetician with celebrity clients and 22 years of experience, supported the Support Magistrate's determination that she is able to pay the child support obligation. The Support Magistrate was not required to rely on respondent's account of her finances.

Third Department Holds That Emancipation by Employment Occurs Only When Child Attains Economic Independence. Fact That Child May Work Full Time Is Not Determinative Even Where Child Lives on His/her Own.

In Drumm v Drumm, --- N.Y.S.2d ----, 2011 WL 4975452 (N.Y.A.D. 3 Dept.)
Petitioner ( mother) and respondent (father) were the divorced parents of three children, Miranda, Nicholas and Matthew (born in 1990, 1994 and 1997, respectively). In May 2006, the parties entered into a separation agreement, pursuant to the terms of which they agreed to share physical custody of their children and to divide equally, among other things, the cost of the children's health insurance and any uncovered medical expenses. In apparent contemplation of that arrangement, the parties agreed to waive any child support "at [that] time." Although not entirely clear from the record, it appeared that Miranda and Nicholas thereafter elected to reside primarily with the mother, prompting the parties to enter into stipulations of settlement that referred various issues to Family Court, including child support for Miranda and Nicholas and the parties' respective obligations for the children's health care costs. The
separation agreement, as modified, was incorporated but not merged into the
parties' May 2009 amended judgment of divorce. In September 2009, the mother and the father entered into an order on consent wherein they agreed to, among other things, grant each other a "right of first refusal" during any period of time when the parent having physical custody of Matthew would be absent for five hours or longer. As the father often was required to work on weekends, he offered--and the mother frequently accepted-- the additional parenting time with Matthew. Shortly after entering into this stipulation, the mother commenced s modification proceeding contending that, having availed herself of the opportunity to spend more time with Matthew, she now had physical custody of him more than 50% of the time and, as such, was entitled to child support. Following a hearing, the Support Magistrate found that the mother's decision to exercise her right of first refusal did not alter the parties' shared custody arrangement as to Matthew and, therefore, the mother was not entitled to child support for him. The Support Magistrate further determined that Miranda became emancipated in June 2008 when she graduated from high school and obtained full-time employment and limited any award of support for Miranda accordingly. Family Court, sua sponte, dismissed the mother's subsequent objections to the Support Magistrate's order as untimely and, upon reargument, adhered to its prior decision. The Appellate Division reversed. It found that the record did not support Family Court's finding that the mother's objections were filed outside the 35-day window set forth in Family Ct Act 439(e) and held that Family Court erred in refusing to entertain the mother's objections on the merits. The Appellate Division held that with regard to the mother's request for child support for Matthew, the mere fact that the mother elected to exercise her right of first refusal with respect to this particular child did not fundamentally alter the parties' shared custody arrangement. At best, the mother's election resulted in her choosing to spend an additional three or four days each month with her son. In its view, regardless of the burden of proof employed, this minor and entirely voluntary "change in circumstances" was insufficient to warrant the mother's request for child support as to this child.
However, it found merit to the mother's objection regarding Miranda's alleged emancipation. A parent is statutorily obligated to support his or her child until the age of 21 (see Family Ct Act 413[1] ) unless the child is sooner emancipated, which occurs, insofar as is relevant here, when the child attains economic independence through employment. The fact that a child may work full time is not determinative, as
a child cannot be deemed economically independent if he or she still relies upon a
parent for significant economic support. This remains true even where, as here, the child in question no longer resides with one of the parties, for long as the child is still
dependent on one of them for a significant portion of his or her support. Here, although the father testified that Miranda went to work full time after graduating from high school, the record fell short of establishing that she had achieved economic independence. Notably, there was no documentation of Miranda's salary or expenses or the degree to which she continued to receive financial support from her mother. Accordingly, the Support Magistrate's determination in this regard could not stand. The Court was also persuaded that the Support Magistrate erred in failing to achieve some level of parity between the parties by consistently using their respective projected incomes for 2009 in computing child support. Although the Support Magistrate's decision to utilize the mother's projected income for 2009 instead of her actual income for 2008 was well founded (due to nonrecurring income that the mother received in the prior year), no similar explanation was offered for electing to use the father's actual 2008 income instead of his projected--and presumably higher--income for 2009. The record failed to disclose a valid reason for failing to utilize similar income valuations for both parties
when computing their respective support obligations for Miranda and Nicholas. The orders were reversed, on the law and the matter remitted to the Family Court for further proceedings not inconsistent with the Court's decision.
In a footnote the Court pointed out that to the extent that the parties' separation agreement defined emancipation as, among other things, a "child establishing a permanent residence away from his or her custodial parent," it noted that "the parties cannot contract away the duty of child support" (Matter of Thomas B. v. Lydia D., 69 A.D.3d 24, 30 [2009] ).

Ineffective Assistance of Counsel Requires Reversal of Neglect Orders

In Matter of Jaikob O., --- N.Y.S.2d ----, 2011 WL 4974840 (N.Y.A.D. 3 Dept.) the Appellate Division reversed an order which granted petitioner's application to adjudicate the children to be neglected. The Appellate Division held that as a result of deficiencies in the representation provided by his assigned trial counsel at the fact-finding hearing, he was denied meaningful representation. It found that counsel's ineffectiveness permeated the proceedings. At the fact-finding hearing, counsel failed to make an opening statement or to cross-examine petitioner's witnesses on relevant matters such as the children's exposure to respondent's allegedly neglectful conduct during the relevant time period (i.e., February to June 2008). Counsel's cross-examination of the mother and the wife, both clearly young victims of disturbing domestic violence, was at points tasteless and irrelevant, even prurient. Counsel made no motions at the close of petitioner's case and no closing arguments, stating only, "I think everything's been said." Counsel never submitted, as directed by Family Court, proposed findings of fact and conclusions of law. Likewise, petitioner submitted no findings or conclusions of law. Notably, at the close of the fact-finding hearing, Family Court merely stated that it found petitioner's witnesses to be "credible," but made no finding of neglect, deferring its decision thereon. Surprisingly, counsel then consented to immediately proceeding to a dispositional hearing. Particularly disturbing on the issue of whether counsel provided meaningful representation was a letter sent by counsel to respondent in prison after the fact-finding hearing, but before a neglect determination was issued, in response to his request for a new attorney. The letter contained a not-so-subtle threat that counsel would not send respondent anything, or convey any information to or cooperate with his next attorney, if he pursued a change of attorneys; counsel also flaunted that he had achieved financial success, upon which he elaborated, with his "clients who have money" and essentially did not need this assignment. The Appellate Division found that the letter was inappropriate and served to undermine any confidence respondent might have had in counsel effectively representing him. Accordingly, the fact-finding order was reversed. In light of the foregoing, all proceedings at which counsel represented respondent subsequent to the fact-finding hearing and order were invalid.
It also deemed it important to point out that, with regard to the dispositional hearing, counsel failed to object to petitioner's oral motion to dispense with its duty to make diligent reunification efforts for respondent and the children based upon the termination, years earlier, of respondent's (and the wife's) parental rights to their three oldest children. Such a motion by petitioner was required to be "in writing " and on notice to respondent, allowing him "the opportunity to gather evidence and raise issues of fact in answering papers and prepare for an evidentiary hearing". Moreover, absolutely no proof was offered by any party at the dispositional hearing addressing the children's "best interests" either on the propriety of terminating reasonable reunification efforts (see Family Ct. Act 1039-b[b][6] [last paragraph] ) or on the ultimate disposition upon the neglect finding (see Family Ct. Act 1045, 1052); the current status and placement of the children was not disclosed at the hearing or in the dispositional order. Counsel filed no notice of appeal from the resulting dispositional order. As respondent was denied meaningful representation by trial counsel at the fact-finding hearing, the fact-finding order, as well as the subsequent resulting orders of Family Court, could not stand.

Third Department Holds That Evidence of Child’s Needs Not Necessary in Fixing Child Support. CSSA Creates Rebuttable Presumption Guidelines Contained Will Yield Correct Amount of Child Support.

In Matter of Marcklinger v Liebert, --- N.Y.S.2d ----, 2011 WL 4975510 (NYAD 3 Dept)
in a prior appeal in this child support case, the Appellate Division rejected petitioner's contention that the Support Magistrate improperly considered the parties' combined income exceeding $80,000 in the calculation of the basic child support obligation for their unemancipated child, but remitted the matter to Family Court for an articulation of a rationale for using the statutory percentage rather than the so-called "paragraph (f)" factors or a combination of both (72 A.D.3d 1431 [2010] ). Upon remittal, the Support Magistrate recalculated petitioner's support obligation, using a higher adjusted gross income for respondent as petitioner had previously requested and in accordance with Family Court's prior order, which reflected respondent's receipt of maintenance payments from petitioner. This resulted in petitioner's pro rata share being decreased to 57.65% and respondent's share being increased to 42.35%. The Support Magistrate then applied the statutory percentage set forth in the Child Support Standards Act to the parties' total combined income--first to the portion up to $80,000 and then to the portion that exceeds that amount--and determined that petitioner's pro rata share amounted to $256 per week. The Appellate Division affirmed. It noted that in his amended order, the Support Magistrate reasoned that the application of the statutory percentage yielded an amount that was "neither unjust nor inappropriate" considering that (1) the child would have enjoyed an enhanced standard of living had the parties remained married, (2) the $80,000 cap had not been adjusted for inflation since 1989, (3) the income disparity between the parties, and (4) petitioner did not offer any reason for a contrary finding. This articulation of reasoning indicated that the Support Magistrate carefully considered the parties' circumstances and found no reason to depart from the prescribed percentage. Although petitioner faulted respondent for not submitting evidence of the child's needs, application of the CSSA "creates a rebuttable presumption that the guidelines contained therein will yield the correct amount of child support" and, if petitioner believed that his presumptive pro rata share was unjust or inappropriate, it was his burden to establish such.

Appellate Division Holds Family Court Has Jurisdiction to Determine Paternity of Child Born to Married Woman Rejecting Argument Based upon Statutory Definitions of "Child," "Mother" and "Father" Limiting Those Terms to Situations Involving "A Child Born out of Wedlock"

In Matter of Nathan O v Jennifer P, --- N.Y.S.2d ----, 2011 WL 4975692 (N.Y.A.D. 3 Dept.) up until at least April 6, 2009, petitioner and respondent Jennifer P.
( mother) engaged in a sexual relationship, although they disputed when that relationship ended. In mid-April 2009, the mother engaged in a sexual relationship and began cohabiting with respondent Uwe P. The mother married Uwe P. in June 2009 and gave birth to a child on December 6, 2009. At the time of the birth, Uwe P. was listed as the child's father on the birth certificate. Shortly after the child's birth, petitioner filed two petitions seeking a declaration of paternity and either custody or visitation. Uwe P. cross-petitioned for a declaration of paternity. Family Court denied the mother's motion to dismiss the petitions and ordered the parties and child to submit to DNA testing, with the results sealed pending further proceedings. During a hearing to address whether the presumption of legitimacy should preclude DNA testing (see Family Ct Act 532 [a] ), the parties consented to unsealing the DNA test results, which revealed a high likelihood that petitioner was the biological father. The parties then stipulated to an order of parenting time for petitioner, subject to respondents'
right to appeal the court's ruling on jurisdiction and standing. Over respondents'
objections, Family Court declared that petitioner was the father of the child, entered an order of filiation to that effect, and dismissed Uwe P.'s paternity petition. The Appellate Division affirmed.
Respondents argued on appeal that the court had no jurisdiction to determine paternity of a child born to a married woman. The argument was based upon statutory definitions of "child," "mother" and "father" limiting those terms to situations involving "a
child born out of wedlock" (Family Ct Act 512). The Appellate Division held that Respondents' interpretation could not not be harmonized with other aspects of Family Ct Act article 5. For example, their interpretation is belied by the statutory phrase "presumption of legitimacy of a child born to a married woman" (Family Ct Act 532[a] ); the use of the word "married" would be unnecessary and superfluous under respondents' view. Considering the broad grant of jurisdiction in the N.Y. Constitution and in Family Ct Act 511, along with the numerous cases where courts have addressed paternity of children born to married mothers and the conflict between the definitions in Family Ct Act 512 and other aspects of Family Ct Act article 5, it held that Family Court has subject matter jurisdiction to address the paternity of a child born to a married woman. As a "person alleging to be the father," petitioner had standing to
commence a paternity proceeding (Family Ct Act 522). Family Ct Act 523 only requires
the petition to allege that a certain individual is the father of the subject child. A party seeking paternity testing under the Family Ct Act need not provide factual support for the allegations of paternity or nonpaternity; he or she need only articulate some basis for them," sufficient to show that a nonfrivolous controversy exists regarding paternity. In his application filed less than a month after the child's birth, petitioner alleged that he engaged in a sexual relationship with the mother during the probable time of conception, that the mother was not married at that time, and that he was the child's father. This information was sufficient to commence the paternity proceeding. Respondents consented--during the middle of a hearing--to Family Court unsealing the DNA test results. Upon learning of those results, the parties stipulated to the entry of an order of visitation to petitioner, subject to respondents' reservation of the right to appeal based on the court's ruling regarding jurisdiction and standing. In light of their consent, with this limited reservation of rights, respondents waived their argument that Family Court was required to conduct a full hearing concerning the child's best interests (see Family Ct Act 532[a] ) before issuing an order of filiation. Hence, it did not address that argument.

Family Court Erred by Granting the Father's Motion for Summary Judgment Modifying Custody Order Without Allowing Mother Opportunity to Present Evidence. Due Process Requires That a Parent Be Afforded "A Full and Fair Opportunity to Be Heard

In Matter of Jeffrey JJ v Stephanie KK, --- N.Y.S.2d ----, 2011 WL 4975012 (N.Y.A.D. 3 Dept.) Petitioner ( father) and respondent (mother) were the parents of a daughter (born in 2003). Pursuant to a prior order of custody, the parties' apparently shared legal custody of the child; the mother had primary physical custody and the father had liberal visitation time. The father commenced a proceeding seeking primary physical custody of the child after the Rensselaer County Department of Social Services commenced a neglect proceeding against the mother and her husband (stepfather) after receiving a report that the stepfather had been intoxicated while driving with the mother, the subject child and another child in the vehicle. At the fact-finding hearing, the father presented evidence of an existing order of protection that prohibited the stepfather from having any contact with the subject child until July 30, 2010. The father then made an oral motion for Family Court to award him custody, which the court granted over the mother's objection, after it concluded that it was "impossible [for] ... the child's primary residence to be with the mother[,] who is living with [the stepfather,] against whom there is an order of protection." The court further concluded that the issue of the child's best interests had "almost been determined by virtue of the fact that there is an order of protection against" the stepfather. The court then awarded the father primary physical custody of the child with parenting time to the mother. The Appellate Division agreed with the mother that Family Court erred by granting the father's motion without allowing her an opportunity to present any evidence. In a proceeding pursuant to Family Ct. Act article 6 seeking modification of a prior custody order, a full and comprehensive hearing is required. At such hearing, due process requires that a parent be afforded "a full and fair opportunity to be heard. Family Court violated the mother's due process rights when it granted the father's motion for summary judgment on the petition without permitting the mother an opportunity to present any evidence, call any witnesses, or even testify on her own behalf. While the court believed that the order of protection against the stepfather rendered it impossible for it to award the mother primary physical custody, on cross-examination the stepfather indicated that he was willing to move out of the mother's residence until that order expired. However, the mother was denied an opportunity to present evidence regarding the feasibility of this plan when the court granted the father's motion. In a footnote the court observed that the prior order was not included in the record on appeal, which omission ordinarily results in dismissal of the appeal (see Matter of Pratt v. Anthony, 30 A.D.3d 708, 815 N.Y.S.2d 832 [2006] ). However, since there was no dispute as to the terms of the prior order, which were put on the record in open court by Family Court, it decided to reach the merits of this appeal.

Important New Decisions - October 19, 2011

2011-10-19T10:02:00.001-04:00

Maintenance Award Should Not Provide for an Automatic Increase upon the Prospective Emancipation of Each of Parties' Children

In O’Brien v O’Brien, --- N.Y.S.2d ----, 2011 WL 4839062 (N.Y.A.D. 2 Dept.) the Supreme Court found that the plaintiff former wife had an annual income of $33,262 from all sources, and the defendant former husband had an annual income of $115,747 from all sources. The parties were divorced by judgment dated November 30, 2009. In addition to child support of $2,625 per month, plus support arrears, the Supreme Court awarded the plaintiff maintenance in the amount of $1,375 per month over a period of 10 years, to increase as each of the parties' six children becomes emancipated, so that the plaintiff would receive the total sum of $4,000 per month in combined child support and maintenance for a period of 10 years, plus maintenance arrears. The Supreme Court also awarded the plaintiff an attorney's fee in the amount of $10,000. The plaintiff was to remain in the marital residence and pay all carrying costs. The Appellate Division pointed out that the awards of child support, maintenance, arrears, and an attorney's fee were based upon the Supreme Court's calculation of the parties' respective incomes. It found that Supreme Court made a mathematical error in calculating the plaintiff's income. The numbers reflecting the various components of the plaintiff's annual income, as set forth by the Supreme Court in its decision, added up to a total of $54,163, not $33,262, as erroneously stated by the Supreme Court. It pointed out that a court has the inherent power to relieve a party from judgments taken through mistake or inadvertence in the interest of justice, and directed that the awards of child support, maintenance, arrears, and an attorney's fee had to be recalculated based on the correct figures. It also found that with respect to one of the components of the defendant's annual income, the Supreme Court attributed an incorrect amount. Three of the components were supported by the record. However, the record did not support the Supreme Court's calculation and imputation of $15,376 in annual benefits from the defendant's employer for use of an automobile and cell phone, along with the employer's payment of expenses attributable to the use of those items. It observed that Domestic Relations Law 240(1-b)(b)(5)(iv)(B) provides that the Supreme Court may, in its discretion, "attribute or impute income from ... automobiles or other perquisites that are provided as part of compensation for employment to the extent [they] constitute expenditures for personal use, or ... directly or indirectly confer personal economic benefits." Here, although the defendant's employer expended the sum of $15,376 in 2007 for the defendant's use of an automobile and cell phone and related expenses, the amount attributable to income was considerably smaller in light of the defendant's testimony that only 10% of his use of the automobile, and only a "portion" of his use of the cell phone, were personal uses. The Appellate Division observed that upon remittal for recalculation, the discrepancy between the parties' incomes would necessarily be smaller than previously calculated, and, the defendant's pro rata share of the basic child support obligation had to be recalculated. It also directed that upon remittal, the Supreme Court had to recalculate the award of maintenance based upon factors including the parties' respective incomes as recalculated, their pre-divorce standard of living, and the financial resources of each, considered separately, balancing the plaintiff's needs with the defendant's ability to pay. The Appellate Division held that that the maintenance award should not provide for an automatic increase upon the prospective emancipation of each of the parties' children. Maintenance is designed to give the spouse economic independence and should continue only as long as necessary to render the recipient self-supporting. The award should meet the recipient spouse's reasonable needs while providing an appropriate incentive for the recipient to become financially independent. The amount of the maintenance award is a discretionary determination based upon a number of interrelated facts then in existence; unless a future event is imminent and measurable, an award of maintenance should not include a provision for increase or decrease upon the happening of a particular future event. Here, the provision for automatic increase of maintenance upon the emancipation of each of the parties' children ignored other factors which may come into existence at the time of each child's emancipation. Therefore, the parties' changing needs are best addressed in a future application for modification of the amount of maintenance.
The Appellate Division found, based upon the apparent discrepancy between the parties' income and other circumstances, that Supreme Court did not improvidently award the plaintiff an attorney's fee. However, the amount of the award was premised upon an erroneous calculation of the parties' respective incomes. It directed that upon remittal, the Supreme Court should recalculate an appropriate award to the plaintiff of an attorney's fee.

Deprivation of Right to Counsel In a Custody or Visitation Proceeding is Denial of a Fundamental Right Which Requires Reversal

In Matter of Rosof v Mallory, --- N.Y.S.2d ----, 2011 WL 4839081 (N.Y.A.D. 2 Dept.) at the commencement of a hearing to determine whether the father should have only supervised visitation with his daughter, the father's attorney asked to be relieved, and the father consented to her discharge. The father asked that new counsel be appointed, but the Family Court declined to do so, and the father represented himself. The Appellate Division held that the father, as a respondent in a proceeding pursuant to Family Court Act article 6, had the right to be represented by counsel. To determine whether a party is validly waiving the right to counsel, the court must conduct a "searching inquiry" in order to be reasonably certain that the party understands the dangers and disadvantages of giving up the fundamental right to counsel. Here, the Family Court conducted no inquiry at all to determine whether the father was waiving the right to counsel. Requiring the father to try the matter without the benefit of counsel impermissibly placed the Family Court's interest in preventing delay above the interests of the parents and the child, and violated the father's right to be represented by counsel. The deprivation of a party's fundamental right to counsel in a custody or visitation proceeding is a denial of due process which requires reversal, regardless of the merits of the unrepresented party's position . The matter was remitted to the Family Court for a new hearing on the mother's petition and a new determination.

Supreme Court Finds No Basis for a Presumption That a Parent's Obligation to Pay for College Is to Be Limited to the Cost of a Suny Education Unless Proven Otherwise

In Pamela T v Marc B., --- N.Y.S.2d ----, 2011 WL 4861584 (N.Y.Sup.) the Supreme Court concluded that the proposition that before a parent can be compelled to contribute towards the cost of a private college there must be a showing that a child cannot receive an adequate education at a state college is a doctrine that in many cases is harmful to the children of divorced parents, acts to discriminate against them, and is largely unworkable.
The parties were divorced on December 23, 2008. They had two sons, one who was 18 and one who was 16. The judgment of divorce incorporated a custody agreement and a stipulation of settlement by which the parties had resolved all issues of the divorce except for those concerning child support. No mention was made in either the decision, the custody agreement or the stipulation of settlement as to the payment of the children's college tuition and expenses. In 2007, the elder child was diagnosed with "moderate emotional difficulty" and learning/anxiety disorders, which necessitated certain educational accommodations. Despite this diagnosis, he graduated in 2011 from Beacon High School, a selective public high school in Manhattan. He was accepted at Syracuse University, SUNY Binghamton and SUNY Buffalo, along with a number of other schools. Syracuse, which awarded him $3,000 in financial aid, cost approximately $53,000 a year to attend as an undergraduate, while SUNY Binghamton and SUNY Buffalo cost only about $18,000 a year. Although the child visited Binghamton and gave serious consideration to going there, he ultimately decided to attend Syracuse. He was now a freshman there studying computer engineering and computer graphics.
The parties were both practicing attorneys in New York City. Plaintiff worked for
the Metropolitan Transit Authority Inspector General's Office and defendant was
self-employed as a solo practitioner. Plaintiff's 2010 federal income tax return reported adjusted gross income of $109,896. Defendant's 2010 federal income tax return reported adjusted gross income of $105,135. Plaintiff's net worth statement showed she had assets of approximately $1,230,000. Defendant's net worth statement showed he had approximately $580,000. Both plaintiff and defendant went to private undergraduate colleges and law schools, with plaintiff graduating from Northwestern University and New York University School of Law, and defendant graduating from Columbia University and Benjamin N. Cardozo School of Law.
Defendant did not oppose an order directing him to contribute to his older child's college education, but he asked the court to apply the SUNY cap and limit his responsibility to a percentage of the costs of a state university education rather than to a percentage of a private college education. Defendant's position was based on his claim that he was unable to meet the financial demands of paying for private college and on his belief that his son could receive as good an education at SUNY Binghamton as he could at Syracuse.
Supreme Court observed that Domestic Relations Law 240(1- b)(c)(7) conferred upon the courts of this state the authority to "direct a parent to contribute to a child's private college education, even in the absence of special circumstances or a voluntary agreement. The statute provides that when a court exercises its discretion to direct such a contribution from a parent, it is to do so "having regard for the circumstances of the case and the parties, the best interests of the child, and the requirements of justice." Case law augmented the provisions of DRL 240(1-b)(c)(7) by setting forth specific factors that are to be considered in determining whether to award college expenses. These factors include the educational background of the parents and their financial ability to provide the necessary funds, the child's academic ability and endeavors, and the type of college that would be most suitable for the child. (See Rosado v. Hughes, 23 AD3d 318 (1st Dept 2005); Naylor v. Gastler, 48 AD3d 951 (3d Dept 2008); Reiss v. Reiss, 56 AD3d 1293 (4th Dept 2008).
The Court observed that DRL 240(1-b)(c)(7) does not provide for is a SUNY cap. The SUNY cap is a concept that has been judicially created by way of a string of decisions rendered since the enactment of the statute. The problem with these cases was that they provided little in the way of instruction as to when a SUNY cap might be properly applied over the objection of the parent who is seeking an award for college
expenses. The Supreme Court found that Berliner v. Berliner, 33 AD3d 745, 749 (2d Dept 2006) was instructive because the Second Department’s statement that there "is no basis in this record" for imposing the SUNY cap implied that the burden falls on the proponent of the cap to demonstrate that it is warranted. The inference to be drawn is that there is no presumption that a parent's obligation to pay for college is to be limited to the cost of a SUNY education unless proven otherwise; if anything, the presumption goes the other direction. It was also instructive because the decision's reference to the "so-called SUNY cap' "can be seen as an indication that even the Second Department views the SUNY cap as something less than an established doctrine firmly ensconced in the fabric of family law.
Supreme Court rejected defendants argument that plaintiff be required to prove that Syracuse was a better school than SUNY Binghamton in order for him to be required to pay Syracuse's higher expenses. He noted that it is difficult to conceive of a workable procedure, let alone a methodology, for a court to make a finding that one college is "better" than another. He stated that the real issue is what college or university is the best for the individual child in question in the ways that matter most to that particular child. The Court found that it had been shown that there was ample reason to support the child's choice of Syracuse, irrespective of whether it is ranked lower, higher or the same as SUNY Binghamton or any other SUNY school. Provided that the funds are available to finance the child's education, the fact that Syracuse was a private school and cost more than a public school was not a reason to interfere with the child going to the school he chose and he wanted to attend. This was particularly so in light of the fact that both his parents went to private colleges. One of the
factors to be considered when making a determination under DRL 240(1-b)(c)(7) is the parents educational background. Inasmuch as plaintiff attended Northwestern and defendant attended Columbia, it could reasonably be assumed that there would exist an expectation in the family, and in the child himself, that he too could attend a private college.
Having found that the child's academic ability and endeavors, the type of college
that would be most suitable for him, and the educational background of the parents
were all factors that called for plaintiff to contribute to his son's education at
Syracuse University, the court had to consider the defendant's ability to pay. It was defendant's position that even though plaintiff may have the means to pay the high cost of their son attending Syracuse, he lacked the means to do so. Consequently, he contended that he should have to pay no more than $9,000 a year towards his son's education, an amount that is roughly 50% of the present annual cost of a SUNY school.
The court rejected defendant's contention as to his inability to pay a significant
share of the child's actual educational expenses being incurred at Syracuse. It was true that plaintiff has considerable more savings than defendant and that she had a pension plan through her employment. But it was equally true that defendant's net income the past year was over $100,000, which was only about $5,000 less than plaintiff's net income for the same period, and that he benefitted from the substantial tax deductions and write offs that come from being self-employed. Also, defendant, although remarried for a number of years, had chosen to keep a second apartment in addition to the residence he shared with his new wife. Defendant had paid and continued to pay a very small amount in basic child support and child support add-ons. If defendant's child support obligation were to be recalculated using his 2010 income, it would be far higher than the $686 monthly that he paid.
Supreme Court held that there was no basis to impose the SUNY cap, to the extent that it should be imposed at all, where the party seeking to invoke the cap has the financial ability to contribute towards the actual amount of his or her child's college expenses. (Citing R.E. v. S.E., 27 Misc.3d 1216(A); Bonnie B. v. Michael B., 6 Misc.3d 1004(A), 2004 WL 3050804 (Sup Ct, Suffolk County 2004). It found that the defendant had the income and the assets, as well as the ability to keep producing substantial income through his law practice, to make a significant contribution to his sons's college education. Although defendant's contribution should be less than plaintiff's, based on the difference between their net assets, and in particular what each of them had available for eventual retirement, that contribution should not be subject to some artificial construct like the SUNY cap. Rather, it should be based, as with all other child support obligations, on the respective finances of the parties. On this basis, the court concluded that defendant shall be obligated to contribute 40% of the total cost of the elder child attending Syracuse University, with those costs to include tuition, room and board, fees and books.
The Court observed that it has the discretion to direct parents to pay the
costs of their children's college expenses when the separation agreement or other
stipulation between the parents is silent in this respect. However, such a directive is premature when college is several years away, the choice of college and the cost of tuition are uncertain, and the child's academic interests and abilities are not supported by evidence. (Citing Gilkes v. Gilkes, 150 A.D.2d 200, 201 (1st Dept 1989); see also LaBombardi v. LaBombardi, 220 A.D.2d 642, 644 (2d Dept 1995). Here, college was more than a year and a half away for the younger child. It was therefore premature and unduly speculative to attempt to assess what the child's plans are with regard to college and the what the costs will be. As a result, plaintiff's application for this relief was denied without prejudice to renew at a subsequent date when the child has committed to attend college and the costs of attendance are supported by evidence.

Important New Decisions - October 14, 2011

2011-10-14T10:12:00.000-04:00

Supreme Court May Not Determine Whether the Marriage Is Irretrievably Broken until All Ancillary Issues Are Resolved.

In Schiffer v Schiffer, --- N.Y.S.2d ----, 2011 WL 4790060 (N.Y.Sup.) plaintiff husband moved for an order directing that summary judgment be granted in his favor of divorce under Domestic Relations Law 170 (7). The defendant wife opposed the application and cross-moved for summary judgment dismissing the complaint. The parties were married in Massachusetts on March 25, 1990 and had three unemancipated children of the marriage. On November 29, 2010, Mr. Schiffer commenced the action for divorce, claiming irretrievable breakdown of the marriage for a period of more than six months prior to the commencement of the action. On December 21, 2010, Mrs. Schiffer served her verified answer, contesting these allegations, specifically claiming that Mr. Schiffer's actions belied his claims that the marriage was irretrievably broken. The Supreme Court observed that Domestic Relations Law § 170 [7] allows parties to seek a judgment of divorce when "the relationship between the husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath" also provides that "no judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the
payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into this judgment of divorce".
The Supreme Court agreed with the wife’s argument that the husband was not entitled to summary judgment since no judgment of divorce can be made unless and until the economic and custodial issues are determined or resolved by the parties. The statute clearly states that a judgment may only be granted after economic and custodial issues were resolved. In this case, all of the conditions of the statute had not been met since the economic and custodial issues were yet to be addressed. Mr. Schiffer had failed to meet his prima facie burden, and his motion for summary judgment was denied.
Mrs. Schiffer's motion for summary judgment was also denied, but for a different reason. Supreme Court observed that in Strack v. Strack (31 Misc.3d 258 [Sup Ct, Essex County 2011] ), Justice Muller held that the "determination of whether a breakdown of a marriage is irretrievable is a question to be determined by the finder of fact." This holding demonstrably agreed with fundamental concepts of due process and comported with similar interpretations of no-fault statutes from our sister states. Since the sole means of procuring a divorce in New York is by judicial process (N.Y. Const, art I, s 9), precluding a party from contesting a ground for divorce "must be regarded as the equivalent of denying [him or her] an opportunity to be heard ...and in the absence of a sufficient countervailing justification for the State's action, a denial of due process". A contrary finding would merely reduce the court to a rubber stamp whenever presented with an action for divorce under Domestic Relations Law 170 (7). While Mrs. Schiffer had established that the ancillary issues were not resolved and that her marriage to Mr. Schiffer had not broken down irretrievably, Mr. Schiffer raised a triable issue of fact that the marriage was irretrievably broken for at least six months. The proof bared by the parties sufficed to establish a true issue of fact as to whether this marriage was irretrievably broken, which the finder of fact would undoubtedly resolve after the other issues were resolved.

A Court May Not Delegate to a Parenting Coordinator the Authority to Resolve Issues Affecting the Best Interests of the Children

In Silbowitz v Silbowitz, --- N.Y.S.2d ----, 2011 WL 4599852 (N.Y.A.D. 2 Dept.) the Appellate Division affirmed an order of the Supreme Court which, in effect, granted the defendant former husband's motion to appoint a parenting coordinator to assist the parties in implementing the terms of their existing child custody and visitation arrangement provided for in the parties' stipulation dated October 22, 2007.
It observed that although a court may properly appoint a parenting coordinator to mediate between parties and oversee the implementation of their court-ordered parenting plan a court may not delegate to a parenting coordinator the authority to resolve issues affecting the best interests of the children. Here, despite the expansive scope of the issues entrusted to the parenting coordinator by the Supreme Court's order, his power was properly limited to implementing the terms of the existing child custody and visitation arrangement provided for in the parties' stipulation dated October 22, 2007, subject to the Supreme Court's oversight. Although the parenting coordinator was empowered to issue a written decision resolving a conflict where he was unable to broker an agreement between the parties, the Supreme Court's order also provided that the parties may seek to have the parenting coordinator's decision so-ordered by the Supreme Court and that they "retain their right to return to Court and seek a modification of their parenting plan at any time." Accordingly, the Supreme Court properly limited the role of the parenting coordinator and properly provided that his resolutions remained subject to court oversight.
The plaintiff also contended that the order insufficiently protected the confidential and privileged information of the parties and the children because it required the parties to execute authorizations and releases allowing the parenting coordinator to obtain information which was otherwise confidential or privileged. However, the order required that the parenting coordinator maintain the confidentiality of the information and when read as a whole, clearly limited his authority to request authorizations or releases and use information only in furtherance of his duty to mediate between the parties in the implementation of their parenting plan. Accordingly, no further limitation was necessary.

Supreme Court Properly Declined to Imply a Term Which the Parties Did Not Insert into Their Stipulation, for the Purpose of Determining the Contempt Motion. Court Has Discretion to Decide If it Will Consider New Argument in Reply Papers.

In Penavic v Penavic, --- N.Y.S.2d ----, 2011 WL 4600442 (N.Y.A.D. 2 Dept.) the the plaintiff moved, pursuant to Judiciary Law 756 to hold the defendant in civil contempt. Supreme Court denied the motion. The Appellate Divison affirmed. It held that to prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged with contempt willfully violated a clear and unequivocal mandate of a court's order, with knowledge of that order's terms, thereby prejudicing the movant's rights. Supreme Court providently exercised its discretion in denying her motion to hold the defendant in contempt for failing to remove her name from a home equity line of credit ( HELOC) or closing it. While the plaintiff was aware of the HELOC at the time that she executed the stipulation, no provision was included in the stipulation requiring that her name be removed from it or that it be closed, even though the defendant was precluded from continuing to use the HELOC pursuant to the provision which prohibited him from incurring additional debt upon the plaintiff's credit. Since the terms of the stipulation with respect to whether the HELOC had to be closed were unambiguous, the Supreme Court properly declined to imply a term which the parties did not insert into the stipulation, for the purpose of determining the contempt motion. The plaintiff raised, for the first time in her reply papers, the argument that the defendant was also in contempt of the judgment by increasing the balance of the HELOC from $25,000, the amount of the balance at the time that the parties executed the stipulation, to $750,000, which he disclosed in his affidavit opposing the plaintiff's motion. The Appellate Division held that it was within the Supreme Court's discretion to decide if it would consider this new argument. Inasmuch as the plaintiff did not address this provision in her motion papers and relied solely upon the provisions concerning the acknowledgment that the bills or accounts for the former marital residence were solely in the husband's individual name as the basis for her motion, Supreme Court properly exercised its discretion to disregard that argument in connection with the motion before it (citing Matter of Allstate Ins. Co. v. Dawkins, 52 AD3d 826, 827).
Authors Note: In Matter of Allstate Ins. Co. v. Dawkins, the Appellate Division said: “The function of reply papers is to address arguments made in opposition to the position taken by the movant, not to permit the movant to introduce new arguments or new grounds for the requested relief (see Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677 [2005]; Matter of TIG Ins. Co. v Pellegrini, 258 AD2d 658 [1999]). Further, Dawkins was not afforded an opportunity to address the new argument (see Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677 [2005]; Matter of TIG Ins. Co. v Pellegrini, 258 AD2d 658 [1999]).”

Court May Not Order a Parent Undergo Counseling or Treatment as a Condition of Future Visitation or Re-application for Visitation Rights but May Direct a Party to Submit to a Mental Health Evaluation for Use in Any Future Determination of Visitation.

In Matter of Smith ex rel Hunter v Dawn F.B., --- N.Y.S.2d ----, 2011 WL 4600469 (2d Dept 2011) Family Court granted the petition of the attorney for the child alleging that the mother violated an order of custody and visitation, prohibited her from having
any contact with her son, directed that she submit to a mental health evaluation,
directed her to follow treatment recommendations resulting from that evaluation,
and conditioned her application for resumption of visitation upon her compliance
with treatment, including medication, recommended by a mental health professional.
The Appellate Division modified the order by deleting the provision conditioning the mother's application for resumption of visitation upon her compliance with treatment, including medication, recommended by a mental health professional. It found that Family Court's determination that it was in the child's best interest to suspend supervised visitation and prohibit all contact with the mother had a sound and substantial basis in the record. The mother, by her own admission, violated the express terms of the Family Court's previous order, which only permitted visitation supervised by designated individuals, by having unsupervised contact with the child at two separate little league baseball games. Moreover, the mother contributed to certain events at a recent therapeutic visit which adversely affected the child and undermined the progress of the therapeutic visitation.
The Appellate Division pointed out that a court may not order that a parent undergo counseling or treatment as a condition of future visitation or re-application for visitation rights, but may only direct a party to submit to counseling or treatment as a component of visitation. Here, the Family Court improperly conditioned the mother's application for resumption of visitation upon her compliance with treatment, including medication, recommended by a mental health professional. However, the Family Court properly directed the mother to submit to a mental health evaluation for use in any future determination of visitation.

Family Court Lacks Subject Matter Jurisdiction over Article 8 Proceeding Where There Is No Intimate Relationship Between Parties

In Matter of Riedel v Vasquez, --- N.Y.S.2d ----, 2011 WL 4600481 (N.Y.A.D. 2 Dept.), the Appellate Division affirmed an order of the Family Court which, without a hearing, granted Respondents motion to dismiss the petition for lack of subject matter jurisdiction. On August 10, 2010, the petitioner commenced an Article 8 proceeding seeking an order of protection against Milagros Carranza Vasquez (respondent), who was the estranged wife of the petitioner's live-in boyfriend. The petitioner had two children with the boyfriend, and the respondent had one child with him. The petitioner alleged that she and the respondent, who did not reside together, had an "intimate relationship" within the meaning of Family Court Act 812(1). The Family Court, without a hearing, dismissed the petition on the ground of lack of subject matter jurisdiction. The Appellate Division affirmed. It pointed out that the Family Court is a court of limited subject matter jurisdiction, and "cannot exercise powers beyond those granted to it by statute" (Matter of Johna M.S. v. Russell E.S., 10 N.Y.3d 364). Pursuant to Family Court Act 812(1), the Family Court's jurisdiction in family offense proceedings is limited to certain prescribed acts that occur "between spouses or former spouses, or between parent and child or between members of the same family or household". Members of the same family or household include, among others, "persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time" (Family Ct Act 812[1])(e). Expressly excluded from the ambit of "intimate relationship," are "casual acquaintance[s]" and "ordinary fraternization between two individuals in business or social contexts". Beyond those delineated exclusions, what qualifies as an "intimate relationship" within the meaning of Family Court Act 812(1)(e) is determined on a case-by-case basis. Relevant factors include the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Here, the parties had no direct relationship and were only connected through a third party, who was the biological father of the parties' respective children. The parties never resided together and did not take care of each other's children. The respondent's contact with the petitioner and/or her children had been minimal. Given these undisputed facts, no hearing was required, as the Family Court possessed sufficient information to determine that the parties were not and never had been in an "intimate relationship" as defined by Family Court Act s 812(1)(e).

Family Court Lacked Exclusive, Continuing Jurisdiction to Modify Custody Order Where Neither the Child Nor the Father Maintained a Significant Connection with New York, and Substantial Evidence Regarding the Child's Present and Future Welfare Was No Longer Available in this State.

In Knight v Morgan, --- N.Y.S.2d ----, 2011 WL 4600549 (N.Y.A.D. 2 Dept.) the the Family Court issued an order of custody on consent, on August 24, 2009, in connection with the father's petition seeking joint custody of the subject child with the mother, awarding joint legal custody to both parents, with primary residential custody to the father. Accordingly, the child, who was born in 2000, and had resided with his mother in New York since his birth, moved to California in September 2009 to live with his father. After moving to California with the father, the child was diagnosed by a psychologist in California with attention deficit hyperactivity disorder, oppositional defiant disorder, post-traumatic stress disorder and, possibly, a bipolar disorder. The child received treatment from healthcare providers in California, and was not permitted to travel until his condition was stabilized. The child had not returned to New York since moving to California. In December 2009 the mother filed a cross petition in the Family Court, to modify the prior order of custody so as to award her sole custody of the child, in which she alleged that the father had falsely accused her of abusing the child. In January 2010 the father separately cross-petitioned to modify the prior custody order so as to award him sole custody of the child. Subsequently, in May 2010, while both cross petitions were pending, the father moved, inter alia, to dismiss the mother's cross petition for lack of subject matter jurisdiction. After a hearing on the issue of jurisdiction, the Family Court granted that branch of the father's motion which was to dismiss the mother's cross petition on that ground. The Family Court did not address the father's separate cross petition.
The Appellate Division reversed. It held that the Family Court correctly determined that it lacked exclusive, continuing jurisdiction pursuant to Domestic Relations Law 76-a(1), since neither the child nor the father maintained a significant connection with New York, and substantial evidence regarding the child's present and future welfare was no longer available in this State (Domestic Relations Law 76-a[1][a]). However, the Family Court had jurisdiction to hear the mother's cross petition for modification pursuant to Domestic Relations Law 76-a(2) since it would have had jurisdiction for an initial child custody determination under Domestic Relations Law 76(1)(a). New York was the child's "home state" within the six months immediately preceding the commencement of this proceeding, and the mother continued to reside in this State. The matter was be remitted to the Family Court for further proceedings on the cross petitions.

New York Does Not Have Subject Matter Jurisdiction Where it Is Not State in Which Child Lived for at Least Six Consecutive Months Before Commencement of Custody Proceeding

In Jablonsky-Urso v Urso, --- N.Y.S.2d ----, 2011 WL 4600550 (N.Y.A.D. 2 Dept.) the Appellate Division held that Family Court properly granted the father's motion to dismiss the mother’s petition for custody of the parties' son for lack of subject matter jurisdiction. Domestic Relations Law 75-a (7) defines a child's 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". Under the Uniform Child Custody Jurisdiction and Enforcement Act, "[h]ome state jurisdiction is paramount and whether to accept jurisdiction is a home state prerogative" (Matter of Navarrete v. Wyatt, 52 A.D.3d at 836, 861 N.Y.S.2d 393). Here, the Family Court properly determined that New York was not the child's home state and, therefore, that New York did not have jurisdiction over this custody dispute (see Domestic Relations Law 76). However, it held that the Family Court erred in refusing to exercise temporary emergency jurisdiction over the family offense petition (see Domestic Relations Law 76-c) and in summarily dismissing the family offense petition upon its finding that the allegations contained in the mother's family offense petition were insufficient to sustain a family offense. The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court and the allegations asserted in a petition seeking the issuance of an order of protection must be supported by a fair preponderance of the evidence. The Family Court improperly determined that the mother failed to demonstrate that the father possessed the intent required to sustain any of the family offenses alleged in the petition, as it did so without the benefit of a hearing. Based on the foregoing, that branch of the father's motion which was to dismiss the family offense petition had to be denied and the matter remitted to the Family Court, for a fact-finding hearing and a determination of the family offense petition with respect to the allegations contained therein.

Important New Decisions - October 13, 2011

2011-10-13T14:22:00.000-04:00

Supreme Court May Not Determine Whether the Marriage Is Irretrievably Broken until All Ancillary Issues Are Resolved.

In Schiffer v Schiffer, --- N.Y.S.2d ----, 2011 WL 4790060 (N.Y.Sup.) plaintiff husband moved for an order directing that summary judgment be granted in his favor of divorce under Domestic Relations Law 170 (7). The defendant wife opposed the application and cross-moved for summary judgment dismissing the complaint. The parties were married in Massachusetts on March 25, 1990 and had three unemancipated children of the marriage. On November 29, 2010, Mr. Schiffer commenced the action for divorce, claiming irretrievable breakdown of the marriage for a period of more than six months prior to the commencement of the action. On December 21, 2010, Mrs. Schiffer served her verified answer, contesting these allegations, specifically claiming that Mr. Schiffer's actions belied his claims that the marriage was irretrievably broken. The Supreme Court observed that Domestic Relations Law § 170 [7] allows parties to seek a judgment of divorce when "the relationship between the husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath" also provides that "no judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the
payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into this judgment of divorce".
The Supreme Court agreed with the wife’s argument that the husband was not entitled to summary judgment since no judgment of divorce can be made unless and until the economic and custodial issues are determined or resolved by the parties. The statute clearly states that a judgment may only be granted after economic and custodial issues were resolved. In this case, all of the conditions of the statute had not been met since the economic and custodial issues were yet to be addressed. Mr. Schiffer had failed to meet his prima facie burden, and his motion for summary judgment was denied.
Mrs. Schiffer's motion for summary judgment was also denied, but for a different reason. Supreme Court observed that in Strack v. Strack (31 Misc.3d 258 [Sup Ct, Essex County 2011] ), Justice Muller held that the "determination of whether a breakdown of a marriage is irretrievable is a question to be determined by the finder of fact." This holding demonstrably agreed with fundamental concepts of due process and comported with similar interpretations of no-fault statutes from our sister states. Since the sole means of procuring a divorce in New York is by judicial process (N.Y. Const, art I, s 9), precluding a party from contesting a ground for divorce "must be regarded as the equivalent of denying [him or her] an opportunity to be heard ...and in the absence of a sufficient countervailing justification for the State's action, a denial of due process". A contrary finding would merely reduce the court to a rubber stamp whenever presented with an action for divorce under Domestic Relations Law 170 (7). While Mrs. Schiffer had established that the ancillary issues were not resolved and that her marriage to Mr. Schiffer had not broken down irretrievably, Mr. Schiffer raised a triable issue of fact that the marriage was irretrievably broken for at least six months. The proof bared by the parties sufficed to establish a true issue of fact as to whether this marriage was irretrievably broken, which the finder of fact would undoubtedly resolve after the other issues were resolved.

A Court May Not Delegate to a Parenting Coordinator the Authority to Resolve Issues Affecting the Best Interests of the Children

In Silbowitz v Silbowitz, --- N.Y.S.2d ----, 2011 WL 4599852 (N.Y.A.D. 2 Dept.) the Appellate Division affirmed an order of the Supreme Court which, in effect, granted the defendant former husband's motion to appoint a parenting coordinator to assist the parties in implementing the terms of their existing child custody and visitation arrangement provided for in the parties' stipulation dated October 22, 2007. It observed that although a court may properly appoint a parenting coordinator to mediate between parties and oversee the implementation of their court-ordered parenting plan a court may not delegate to a parenting coordinator the authority to resolve issues affecting the best interests of the children. Here, despite the expansive scope of the issues entrusted to the parenting coordinator by the Supreme Court's order, his power was properly limited to implementing the terms of the existing child custody and visitation arrangement provided for in the parties' stipulation dated October 22, 2007, subject to the Supreme Court's oversight. Although the parenting coordinator was empowered to issue a written decision resolving a conflict where he was unable to broker an agreement between the parties, the Supreme Court's order also provided that the parties may seek to have the parenting coordinator's decision so-ordered by the Supreme Court and that they "retain their right to return to Court and seek a modification of their parenting plan at any time." Accordingly, the Supreme Court properly limited the role of the parenting coordinator and properly provided that his resolutions remained subject to court oversight.
The plaintiff also contended that the order insufficiently protected the confidential and privileged information of the parties and the children because it required the parties to execute authorizations and releases allowing the parenting coordinator to obtain information which was otherwise confidential or privileged. However, the order required that the parenting coordinator maintain the confidentiality of the information and when read as a whole, clearly limited his authority to request authorizations or releases and use information only in furtherance of his duty to mediate between the parties in the implementation of their parenting plan. Accordingly, no further limitation was necessary.

Supreme Court Properly Declined to Imply a Term Which the Parties Did Not Insert into Their Stipulation, for the Purpose of Determining the Contempt Motion. Court Has Discretion to Decide If it Will Consider New Argument in Reply Papers.

In Penavic v Penavic, --- N.Y.S.2d ----, 2011 WL 4600442 (N.Y.A.D. 2 Dept.) the the plaintiff moved, pursuant to Judiciary Law 756 to hold the defendant in civil contempt. Supreme Court denied the motion. The Appellate Divison affirmed. It held that to prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged with contempt willfully violated a clear and unequivocal mandate of a court's order, with knowledge of that order's terms, thereby prejudicing the movant's rights. Supreme Court providently exercised its discretion in denying her motion to hold the defendant in contempt for failing to remove her name from a home equity line of credit ( HELOC) or closing it. While the plaintiff was aware of the HELOC at the time that she executed the stipulation, no provision was included in the stipulation requiring that her name be removed from it or that it be closed, even though the defendant was precluded from continuing to use the HELOC pursuant to the provision which prohibited him from incurring additional debt upon the plaintiff's credit. Since the terms of the stipulation with respect to whether the HELOC had to be closed were unambiguous, the Supreme Court properly declined to imply a term which the parties did not insert into the stipulation, for the purpose of determining the contempt motion. The plaintiff raised, for the first time in her reply papers, the argument that the defendant was also in contempt of the judgment by increasing the balance of the HELOC from $25,000, the amount of the balance at the time that the parties executed the stipulation, to $750,000, which he disclosed in his affidavit opposing the plaintiff's motion. The Appellate Division held that it was within the Supreme Court's discretion to decide if it would consider this new argument. Inasmuch as the plaintiff did not address this provision in her motion papers and relied solely upon the provisions concerning the acknowledgment that the bills or accounts for the former marital residence were solely in the husband's individual name as the basis for her motion, Supreme Court properly exercised its discretion to disregard that argument in connection with the motion before it (citing Matter of Allstate Ins. Co. v. Dawkins, 52 AD3d 826, 827).
Authors Note: In Matter of Allstate Ins. Co. v. Dawkins, the Appellate Division said: “The function of reply papers is to address arguments made in opposition to the position taken by the movant, not to permit the movant to introduce new arguments or new grounds for the requested relief (see Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677 [2005]; Matter of TIG Ins. Co. v Pellegrini, 258 AD2d 658 [1999]). Further, Dawkins was not afforded an opportunity to address the new argument (see Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677 [2005]; Matter of TIG Ins. Co. v Pellegrini, 258 AD2d 658 [1999]).”

Court May Not Order a Parent Undergo Counseling or Treatment as a Condition of Future Visitation or Re-application for Visitation Rights but May Direct a Party to Submit to a Mental Health Evaluation for Use in Any Future Determination of Visitation.

In Matter of Smith ex rel Hunter v Dawn F.B., --- N.Y.S.2d ----, 2011 WL 4600469 (2d Dept 2011) Family Court granted the petition of the attorney for the child alleging that the mother violated an order of custody and visitation, prohibited her from having any contact with her son, directed that she submit to a mental health evaluation, directed her to follow treatment recommendations resulting from that evaluation,
and conditioned her application for resumption of visitation upon her compliance with treatment, including medication, recommended by a mental health professional.
The Appellate Division modified the order by deleting the provision conditioning the mother's application for resumption of visitation upon her compliance with treatment, including medication, recommended by a mental health professional. It found that Family Court's determination that it was in the child's best interest to suspend supervised visitation and prohibit all contact with the mother had a sound and substantial basis in the record. The mother, by her own admission, violated the express terms of the Family Court's previous order, which only permitted visitation supervised by designated individuals, by having unsupervised contact with the child at two separate little league baseball games. Moreover, the mother contributed to certain events at a recent therapeutic visit which adversely affected the child and undermined the progress of the therapeutic visitation.
The Appellate Division pointed out that a court may not order that a parent undergo counseling or treatment as a condition of future visitation or re-application for visitation rights, but may only direct a party to submit to counseling or treatment as a component of visitation. Here, the Family Court improperly conditioned the mother's application for resumption of visitation upon her compliance with treatment, including medication, recommended by a mental health professional. However, the Family Court properly directed the mother to submit to a mental health evaluation for use in any future determination of visitation.

Family Court Lacks Subject Matter Jurisdiction over Article 8 Proceeding Where There Is No Intimate Relationship Between Parties

In Matter of Riedel v Vasquez, --- N.Y.S.2d ----, 2011 WL 4600481 (N.Y.A.D. 2 Dept.), the Appellate Division affirmed an order of the Family Court which, without a hearing, granted Respondents motion to dismiss the petition for lack of subject matter jurisdiction. On August 10, 2010, the petitioner commenced an Article 8 proceeding seeking an order of protection against Milagros Carranza Vasquez (respondent), who was the estranged wife of the petitioner's live-in boyfriend. The petitioner had two children with the boyfriend, and the respondent had one child with him. The petitioner alleged that she and the respondent, who did not reside together, had an "intimate relationship" within the meaning of Family Court Act 812(1). The Family Court, without a hearing, dismissed the petition on the ground of lack of subject matter jurisdiction.
The Appellate Division affirmed. It pointed out that the Family Court is a court of limited subject matter jurisdiction, and "cannot exercise powers beyond those granted to it by statute" (Matter of Johna M.S. v. Russell E.S., 10 N.Y.3d 364). Pursuant to Family Court Act 812(1), the Family Court's jurisdiction in family offense proceedings is limited to certain prescribed acts that occur "between spouses or former spouses, or between parent and child or between members of the same family or household". Members of the same family or household include, among others, "persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time" (Family Ct Act 812[1])(e). Expressly excluded from the ambit of "intimate relationship," are "casual acquaintance[s]" and "ordinary fraternization between two individuals in business or social contexts". Beyond those delineated exclusions, what qualifies as an "intimate relationship" within the meaning of Family Court Act 812(1)(e) is determined on a case-by-case basis. Relevant factors include the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Here, the parties had no direct relationship and were only connected through a third party, who was the biological father of the parties' respective children. The parties never resided together and did not take care of each other's children. The respondent's contact with the petitioner and/or her children had been minimal. Given these undisputed facts, no hearing was required, as the Family Court possessed sufficient information to determine that the parties were not and never had been in an "intimate relationship" as defined by Family Court Act s 812(1)(e).

Family Court Lacked Exclusive, Continuing Jurisdiction to Modify Custody Order Where Neither the Child Nor the Father Maintained a Significant Connection with New York, and Substantial Evidence Regarding the Child's Present and Future Welfare Was No Longer Available in this State.

In Knight v Morgan, --- N.Y.S.2d ----, 2011 WL 4600549 (N.Y.A.D. 2 Dept.) the
the Family Court issued an order of custody on consent, on August 24, 2009, in connection with the father's petition seeking joint custody of the subject child with the mother, awarding joint legal custody to both parents, with primary residential custody to the father. Accordingly, the child, who was born in 2000, and had resided with his mother in New York since his birth, moved to California in September 2009 to live with his father. After moving to California with the father, the child was diagnosed by a psychologist in California with attention deficit hyperactivity disorder, oppositional defiant disorder, post-traumatic stress disorder and, possibly, a bipolar disorder. The child received treatment from healthcare providers in California, and was not permitted to travel until his condition was stabilized. The child had not returned to New York since moving to California. In December 2009 the mother filed a cross petition in the Family Court, to modify the prior order of custody so as to award her sole custody of the child, in which she alleged that the father had falsely accused her of abusing the child. In January 2010 the father separately cross-petitioned to modify the prior custody order so as to award him sole custody of the child. Subsequently, in May 2010, while both cross petitions were pending, the father moved, inter alia, to dismiss the mother's cross petition for lack of subject matter jurisdiction. After a hearing on the issue of jurisdiction, the Family Court granted that branch of the father's motion which was to dismiss the mother's cross petition on that ground. The Family Court did not address the father's separate cross petition.
The Appellate Division reversed. It held that the Family Court correctly determined that it lacked exclusive, continuing jurisdiction pursuant to Domestic Relations Law 76-a(1), since neither the child nor the father maintained a significant connection with New York, and substantial evidence regarding the child's present and future welfare was no longer available in this State (Domestic Relations Law 76-a[1][a]). However, the Family Court had jurisdiction to hear the mother's cross petition for modification pursuant to Domestic Relations Law 76-a(2) since it would have had jurisdiction for an initial child custody determination under Domestic Relations Law 76(1)(a). New York was the child's "home state" within the six months immediately preceding the commencement of this proceeding, and the mother continued to reside in this State. The matter was be remitted to the Family Court for further proceedings on the cross petitions.

New York Does Not Have Subject Matter Jurisdiction Where it Is Not State in Which Child Lived for at Least Six Consecutive Months Before Commencement of Custody Proceeding

In Jablonsky-Urso v Urso, --- N.Y.S.2d ----, 2011 WL 4600550 (N.Y.A.D. 2 Dept.) the Appellate Division held that Family Court properly granted the father's motion to dismiss the mother’s petition for custody of the parties' son for lack of subject matter jurisdiction. Domestic Relations Law 75-a (7) defines a child's 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". Under the Uniform Child Custody Jurisdiction and Enforcement Act, "[h]ome state jurisdiction is paramount and whether to accept jurisdiction is a home state prerogative" (Matter of Navarrete v. Wyatt, 52 A.D.3d at 836, 861 N.Y.S.2d 393). Here, the Family Court properly determined that New York was not the child's home state and, therefore, that New York did not have jurisdiction over this custody dispute (see Domestic Relations Law 76). However, it held that the Family Court erred in refusing to exercise temporary emergency jurisdiction over the family offense petition (see Domestic Relations Law 76-c) and in summarily dismissing the family offense petition upon its finding that the allegations contained in the mother's family offense petition were insufficient to sustain a family offense. The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court and the allegations asserted in a petition seeking the issuance of an order of protection must be supported by a fair preponderance of the evidence. The Family Court improperly determined that the mother failed to demonstrate that the father possessed the intent required to sustain any of the family offenses alleged in the petition, as it did so without the benefit of a hearing. Based on the foregoing, that branch of the father's motion which was to dismiss the family offense petition had to be denied and the matter remitted to the Family Court, for a fact-finding hearing and a determination of the family offense petition with respect to the allegations contained therein.

Important New Decisions - October 3, 2011

2011-10-04T08:43:00.000-04:00

First Department Establishes Rules Related to Obligation of Nonparty to Produce Electronically Stored Information Deleted Through Normal Business Operations

In Tener v Cremer, --- N.Y.S.2d ----, 2011 WL 4389170 (N.Y.A.D. 1 Dept.) the First Department addressed the obligation of a nonparty to produce electronically stored information (ESI) deleted through normal business operations. The action underlying this discovery dispute concerned a statement about plaintiff that someone posted on a website known as Vitals.com on April 12, 2009. Plaintiff claimed this statement defamed her. Plaintiff claimed that through discovery she managed to trace the Internet protocol (IP) address of the computer from which the allegedly defamatory post originated "to a computer in the custody and control of New York University." This computer had accessed the Internet through a portal located at Bellevue Medical Center and registered to nonparty New York University Langone Medical Center. According to NYU's Chief Information Security Officer, NYU had installed the Internet portal at Bellevue for the convenience of its residents who trainedd there. The portal is a network address translation (NAT) portal that is essentially a switchboard through which a person can access the Internet. While only NYU personnel with proper security codes can gain access to NYU's computer system and medical records, anyone using a computer plugged into an ethernet outlet at Bellevue can access other web sites through the NYU portal. On April 30, 2010, plaintiff served a subpoena on NYU seeking the identity of all persons who accessed the Internet on April 12, 2009, via the IP address plaintiff previously identified. With the subpoena, plaintiff served a preservation letter advising NYU that the identity of the person who posted the remarks was at issue and that NYU should halt any normal business practices that would destroy that information. When NYU did not produce the information, plaintiff moved for contempt. In opposition to plaintiff's contempt motion, NYU's Chief Information Security Officer stated that "[c]omputers that simply access the web through NYU's portal appear as a text file listing that is automatically written over every 30 days. NYU does not possess the technological capability or software, if such exists, to retrieve a text file created more than a year ago and 'written over' at least 12 times." Plaintiff, in reply, submitted an affidavit from a forensic computer expert opining that NYU could still access the information using software designed to retrieve deleted information. The expert stated that "the term 'written over' is deceptive" because what really occurs is that " 'old' information or data is typically allocated to 'free space' within the system." Plaintiff's expert suggested using "X-Rays Forensic" or "Sleuth Kit" to retrieve the information from unallocated space.
Supreme Court denied the contempt motion in part because it found that NYU did not have the ability to produce the materials plaintiff demanded and that "this allegation is unrefuted as a reply affidavit contradicting such allegation has not been supplied." The Appellate Division held that Supreme Court was incorrect. In its papers in opposition to the motion, NYU offered no evidence that it made any effort at all to access the data, apparently because it believed it could not, as a nonparty, be required to install forensic software on its system. However, the cases that NYU cites to support its assertion that it need not install forensic software were outdated. The most recent was from 1993, nearly 20 years ago (see Carrick Realty Corp. v. Flores, 157 Misc.2d 868, 598 N.Y.S.2d 903 (Civ Ct, New York County 1993). Thus, there were several unanswered questions regarding NYU's ability to produce the requested documents.
The Appellate Division held that the party moving for civil contempt arising out of noncompliance with a subpoena duces tecum bears the burden of establishing, by clear and convincing evidence, that the subpoena has been violated and that "the party from whom the documents were sought had the ability to produce them" (Yalkowsky v. Yalkowsky, 93 A.D.2d 834, 835 [1983]; see also Gray v. Giarrizzo, 47 A.D.3d 765, 766 [2008] ). In this day and age the discovery of ESI is commonplace. Although the CPLR is silent on the topic, the Uniform Rules of the Trial Courts and several courts have addressed the discovery of ESI and have provided working guidelines that are useful to judges and practitioners. The Commercial Division for Supreme Court, Nassau County publishes in depth guidelines for the discovery of ESI (the Nassau Guidelines). While aimed at parties, the Nassau Guidelines are appropriate in cases, such as this, where a nonparty's data is at issue. ESI is difficult to destroy permanently. Deletion usually only makes the data more difficult to access. Based on the specific facts of this case, the Court found that the Nassau Guidelines provided a practical approach. To exempt inaccessible data presumptively from discovery might encourage quick deletion as a matter of corporate policy, well before the spectre of litigation is on the horizon and the duty to preserve it attaches. A cost/benefit analysis, as the Nassau Guidelines provide, does not encourage data destruction because discovery could take place regardless. Plaintiff had variously described the information it seeks as stored in a "cache" file, as "unallocated" data or somewhere in backup data. Data from these sources is difficult to access. But, plaintiff's only chance to confirm the identity of the person who allegedly defamed her may lie with NYU. Thus, plaintiff thus demonstrated "good cause"necessitating a cost/benefit analysis to determine whether the needs of the case warrant retrieval of the data.
As the record was insufficient to permit the court to undertake a cost/benefit analysis it remanded to Supreme Court for a hearing to determine at least: (1) whether the identifying information was written over, as NYU maintained, or whether it is somewhere else, such as in unallocated space as a text file; (2) whether the retrieval software plaintiff suggested can actually obtain the data; (3) whether the data will identify actual persons who used the internet on April 12, 2009 via the IP address plaintiff identified; (4) which of those persons accessed Vitals.com and (5) a budget for the cost of the data retrieval, including line item(s) correlating the cost to NYU for the disruption. It observed that some of these questions (particularly [1] and [2] ) may involve credibility determinations. Until the court has this minimum information, it cannot assess "the burden and expense of recovering and producing the ESI and the relative need for the data" (Nassau Guidelines) and concomitantly whether the data is so "inaccessible" that NYU does not have the ability to comply with the subpoena. That NYU is a nonparty should also figure into the equation. In the event the data is retrievable without undue burden or cost, the court should give NYU a reasonable time to comply with the subpoena.

Family Court Finds Irrebuttable Presumption of Unfitness in SSL 378-a(2)(e)(1) and 378-a(2)(h) Violate Due Process Clauses of the New York State and United States Constitutions

In the Matter of the Adoption of Abel,--- N.Y.S.2d ----, 2011 WL 4436127 (N.Y.Fam.Ct.), Cheryl and Derrick Adamson filed a petition to adopt Abel. Abel was born on August 9, 2004. Since September 22, 2004 when Abel was discharged from the hospital, on the basis of a petition that had been filed alleging that his biological mother had neglected him, Abel resided in the home of his maternal cousin, Cheryl Adamson, and her husband, Derrick Adamson. On April 20, 2009, the court terminated Abel's biological mother's parental rights.. The evidence submitted provided incontrovertible support for the proposition that it was in Abel's best interest to be adopted by the Adamsons and clearly militated in favor of this court approving the Adamsons' petition to adopt Abel. Mr. Adamson's criminal history, however, created an issue as to whether there existed a statutory bar to such approval. Mr. Adamson had a 1987 Washington D.C. conviction for simple assault and a 1992 Kings County (New York State) conviction for Robbery in the Third Degree. On November 24, 2009, pursuant to Social Services Law 378-a(2)(h), New York Foundling conducted a safety assessment of the conditions of the Adamson household. Based on the remoteness in time of his criminal convictions and the fact that in the years since the 1992 robbery conviction, Mr. Adamson had reformed his behavior and has led a productive life, the safety assessment reported that Mr. Adamson did not pose a safety concern to Abel. The assessment concluded that because "Mr. Adamson has been the sole father figure in Abel's life, [New York Foundling] strongly believes that it is in the best interest of the child to be adopted by Mr. and Mrs. Adamson."
In order to gain further understanding of the facts underlying Mr. Adamson's 1992 robbery conviction, the court obtained the criminal court complaint and a transcript of Mr. Adamson's guilty plea. The criminal complaint alleged that on November 27, 1991, in Kings County, Mr. Adamson hit the victim with an unknown blunt object about his head and face and took a bag containing money that the victim had been carrying.The blows allegedly knocked out the victim's front teeth, caused his nose to bleed, and resulted in his sustaining a separated shoulder. On February 3, 1992, having been promised a sentence of one and one-third to four years imprisonment, Mr. Adamson pled guilty to one count of Robbery in the Third Degree and admitted that, on November 27, 1991, when the owner of a store came out [of the store], he hit him, caused him to fall, took his bag containing money, and fled. The Family Court observed that prior to the 2008 amendment of SSL 378-a(2)(e), the court would have found that Mr. Adamson's 1992 robbery conviction did not automatically disqualify him from adopting Abel because denial of Mr. and Mrs. Adamson's petition to adopt would have created an unreasonable risk of harm to Abel's mental health and granting said petition would have been in Abel's best interest and would not have placed his safety in jeopardy. However, in 2008, in order to comply with the federal Adam Walsh Child Protection Act of 2006, see Public Law 109-248, New York State eliminated the language in SSL 378--a which only presumptively disqualified from becoming foster or adoptive parents those who had been convicted of certain felonies, and by doing so made automatic the disqualification of those prospective foster or adoptive parents who had been convicted of certain felonies. The Court held that Mr. Adamson's conviction in 1992 for Robbery in the Third Degree fell within the category of convictions which would automatically disqualify him from adopting Abel. SSL 378-a(2)(e)(1)(A) reads, in pertinent part, "an application for certification or approval of a prospective foster parent or prospective adoptive parent shall be denied where a criminal history record of the prospective foster parent or prospective adoptive parent reveals a conviction for: (A) a felony conviction at any time involving: (i) child abuse or neglect; (ii) spousal abuse; (iii) a crime against a child, including child pornography; or (iv) a crime involving violence, including rape, sexual assault, or homicide, other than a crime involving physical assault or battery. See also 18 NYCRR 421.27(d)(1); 42 USCA 671(a)(20)(A)(I); 45 C.F.R. 1356.30(b)(4). Since assault was specifically excluded from the above-cited provision and since Mr. Adamson's assault conviction was both a misdemeanor and occurred over five years ago, there was no doubt that, unlike the robbery conviction, the assault conviction fell within the category of convictions for which the court had discretion to approve or deny the petition to adopt. See SSL 378-a(2)(e)(3(A). Because robbery was not specifically mentioned in this provision, the court, therefore, found that Mr. Adamson's 1992 robbery conviction constituted a "crime involving violence. The fact that robbery is not specifically included in Social Services Law 378-a(2)(e)(1)(A)(iv) is not dispositive. Although this provision specifically includes rape, sexual assault and homicide and specifically excludes assault as crimes involving violence, there is nothing in either the legislative history of this provision or the state or federal regulations promulgated thereunder that would indicate that the listed crimes are exhaustive, and not merely illustrative, of crimes involving violence.
It was beyond cavil that Mr. Adamson had rehabilitated himself and that removal of Abel from this home would have a devastating impact upon Abel. Under the circumstances of this case, it was clear that to follow the strict mandate of the statute and deny Mr. and Mrs. Adamson's petition to adopt Abel and to remove Abel from the home of his maternal cousin and her husband-the only home he has ever known-based solely upon Mr. Adamson's 1992 robbery conviction, would deprive both Abel and the Adamsons of their due process right to an individualized determination of whether this adoption is in Abel's best interest. That right, to a case-specific determination, was firmly established almost forty years ago in Stanley v. Illinois, 605 U.S. 645(1972) when the United States Supreme Court struck down as violative of the Fourteenth Amendment, Illinois' irrebuttable statutory presumption that all unmarried fathers are unqualified to raise their children. The Court held that a hearing was required by the due process clause, upon the death of the mother and prior to the removal of the children, to determine whether the father was fit to raise the children. In so ruling, the Court opined, "procedure by [irrebuttable] presumption is always cheaper and easier than individualized determination. But when ... the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to fast formalities, it needlessly risks running roughshod over the important interests of both parent and child ... [and] therefore cannot stand." Based upon the due process clauses of the New York State and United States Constitutions, this court found that SSL 378-a(2)(e)(1) and 378-a(2)(h), as applied to the facts of this matter, violated Mr. and Mrs. Adamson's and Abel's right to a determination, based on the totality of the circumstances, as to whether the adoption of Abel by the Adamsons is in Abel's best interest. The court examined the totality of the circumstances presented and notwithstanding Mr. Adamson's criminal past, held that it was in Abel's best interest to be adopted by Mr. and Mrs. Adamson and granted the petition.

Method of Service Provided for in Order to Show Cause Is Jurisdictional

In Matter of Sharma v New, --- N.Y.S.2d ----, 2011 WL 4389744 (N.Y.A.D. 2 Dept.), in March 2010 the mother filed a petition and order to show cause to modify the overnight visitation provisions contained in an order dated January 14, 2010, alleging that the father violated that order by taking the subject child "to a different hotel than the one ... which he informed [the social worker] he would be using." In an order dated July 9, 2010, the Family Court, inter alia, granted the mother's petition so as to suspend the father's overnight visitation. The Appellate Division reversed. It observed that the method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with. Moreover, where the court orders service by a particular date, all components of service must be accomplished by that date. Here, the record did not contain any evidence establishing that the father was properly or timely served in compliance with the provisions of the order to show cause. Moreover, contrary to the contention of the attorney for the child, the father asserted the defense of lack of personal jurisdiction in his answer and did not waive the defense (see CPLR 3211[e]). Since personal jurisdiction was not obtained, the Family Court should have dismissed the proceeding.

Father Did Not Implicitly Consent to Referee by Merely Participating in Custody Proceeding. Referee Had No Jurisdiction.

In Gale v Gale, --- N.Y.S.2d ----, 2011 WL 4090031 (N.Y.A.D. 2 Dept.) the Appellate Divison reversed on the law and remitted for a new hearing, an order of the Family Court which, after a hearing, granted the mother's petition to modify the custody provisions of a judgment of divorce so as to award her sole custody of the parties' children, and denied the fathers petitions for sole custody of the children. It pointed out that a referee derives authority from an order of reference by the court (see CPLR 4311), which can be made only upon the consent of the parties, except in limited circumstances not applicable here. It found that the parties did not stipulate to a reference in the manner prescribed by CPLR 2104. In any event, there was no indication that there was an order of reference designating the referee who heard and determined the petitions at issue here. It observed that that contrary to the mother's contention, the father did not implicitly consent to the reference merely by participating in the proceeding without expressing his desire to have the matter tried before a judge (see McCormack v. McCormack, 174 A.D.2d at 613). The Court held that “...to the extent that certain dicta in Chalu v. Tov-Le Realty Corp. (220 A.D.2d 552, 553) may suggest a different conclusion, it is not to be followed.” Furthermore, a stipulation consenting to a reference to a specified referee, executed by the parties in connection with the father's previous petition to modify the visitation schedule, expired upon completion of that matter and did not remain in effect for this matter. Accordingly, the referee had no jurisdiction to consider the father's petitions related to custody and visitation and the mother's petition to modify custody, and the referee's order determining those petitions had to be reversed.

Important New Decisions - September 23, 2011

2011-09-23T08:21:00.000-04:00

Policy of Broad Pretrial Disclosure Regarding Corporate Interests

In Jaffe v Jaffe, --- N.Y.S.2d ----, 2011 WL 4089440 (N.Y.A.D. 1 Dept.) defendant served 37 nonparty subpoenas on the business office maintained by plaintiff's father. Each subpoena was addressed to a different entity closely held by, or affiliated with, plaintiff's family, which had many real estate holdings. Plaintiff acknowledged that, before the marriage, she had minority interests in many of the entities and that during the marriage she transferred the interests in those companies to a single holding company in exchange for a 25% interest in the holding company. Unlike two of her siblings, plaintiff was given no current or future managerial authority in the holding company. Defendant also addressed subpoenas to SC Management, the company that managed the real estate holdings of the various LLC's. Plaintiff claimed to have no interest in SC Management or six other entities that received subpoenas. In addition to the entities affiliated with plaintiff's family, defendant served a subpoena on Bank of New York Mellon, seeking documents related to accounts maintained there by all of the entities in which plaintiff held an interest, as well as SC Management and the six other entities in which plaintiff denied having any interest. The subpoenas addressed to the entities in which plaintiff had transferred her interest to the holding company differed from each other in some respects, but they uniformally sought financial statements; tax returns; detailed fixed asset registers and depreciation schedules for all assets held; building permits filed between 1996 and 2000; rent rolls identifying all tenants, their apartment numbers, their leases, the square footage of their apartment, and a calculation of their rent per square foot; documents reflecting "in kind" payments or barter transactions with any entity owned by the Hakim Organization, or with any employee, partner or shareholder of such entity; board meeting or other entity meeting minutes; business plans and projections; 1099's with copies of cancelled checks; ownership, operating, management, or subscription agreements; agreements of understanding signed by plaintiff; ownership schedules and stock transfer ledgers, including copies of front and back of all shares issued; copies of credit applications made to a bank or to other creditors; and outside accountants' working paper files and business evaluations or real estate appraisals conducted during the marriage.
Plaintiff moved to quash the subpoenas. She argued that the subpoenas were duplicative of discovery demands defendant had served on her directly (to which she also objected), and that they were intended solely to harass her parents. Plaintiff asserted, the subpoenas were served on the eve of Rosh Hashanah and immediately after defendant threatened to establish that plaintiff's parents were tax evaders. She further contended that, to the extent she had interests in the entities to which the subpoenas were addressed, it was separate property and had no bearing on the distribution of the parties' marital assets. She claimed to have no active role in the companies that would have caused any appreciation in their value to become marital property. In opposition to the motion, defendant argued that the documents and information sought by the subpoenas were necessary to determine whether a portion of plaintiff's family assets is marital property and because the documents bear on maintenance and child support. Pointing to documents he had already discovered during the litigation, defendant submitted that "[m]onies flow[ed] freely" among the subpoenaed entities and that plaintiff was active in the management and development of her family's real estate holdings. Defendant further asserted that the subpoenaed entities regularly made loans to various management companies controlled by the family, particularly SC Management, and used the management companies to pay for family members' personal expenses. Defendant stated that the discovery he sought was relevant to the issue whether plaintiff's actions caused appreciation to the separate property which should then be included in the marital estate. He also argued that, even if plaintiff's interests in the entities were non-marital, they were still relevant under Domestic Relations Law s 236(5)(d)(9), which requires the court, in determining equitable distribution, to consider "the probable future financial circumstances of each party ." The court granted the motion in part and denied it in part. It held that nonparty discovery was appropriate as to those entities in which plaintiff conceded having interest. However, it quashed the subpoenas for all companies in which plaintiff claimed to have no ownership interest, except for SC Management. The court found that there was evidence, such as checks payable to plaintiff, that "raise[d] the possibility" that plaintiff received compensation for work she performed for that company. The court did not expressly address the subpoena served on Bank of New York.
The Appellate Division observed that in a divorce action, "[b]road pretrial disclosure which enables both spouses to obtain necessary information regarding the value and nature of the marital assets is critical if the trial court is to properly distribute the marital assets" (Kaye v. Kaye, 102 A.D.2d 682, 686 [1984] ). In Kaye, the court denied the husband's motion for a protective order preventing discovery into four closely held family corporations in which he held minority interests, observing, "[I]t has been held that both parties in a matrimonial action governed by the Equitable Distribution Law are now entitled to: a searching exploration of each other's assets and dealings at the time of and during the marriage, so as to delineate the extent of marital property, distinguish it from separate property, uncover hidden assets of marital property, discover possible waste of marital property, and in general gain any information which may bear on the issue of equitable distribution, as well as maintenance and child support. The entire financial history of the marriage must be open for inspection by both parties". Pursuant to this rule of liberal discovery in matrimonial litigation, defendant was entitled to records of the entities in which plaintiff had an interest, so that he may determine whether her interests have a bearing on the distribution of the marital estate as well as support obligations. However, it found that find that defendant had failed to establish that plaintiff had any interest in SC management, so the subpoena served on that entity should have been quashed. Further, to the extent the subpoena served on Bank of New York Mellon sought records related to El-Kam Realty, Aval Company, Old Salem Farm Acquisition Corporation and Affiliates, Enterprise Products Partners, LP Nantucket Campfire, LLC, and Bedford Entities, the bank need not comply. Defendant also failed to demonstrate any affiliation between plaintiff and those entities. The bank was required, however, to divulge information related to the companies in which plaintiff had conceded having an interest. While the entities were not immune from discovery in this action, the Appellae Division held that the subpoenas were overbroad in many respects. For example, the subpoenas included a demand to provide the names and addresses of all commercial and residential tenants, with copies of every lease, and all building permits filed for any building, including construction and renovations for every building plaintiff's family owned, over a 15-year period of time. This information appeared to be of dubious relevance. Accordingly, it remitted the matter and held that the motion court must reconsider plaintiff's motion to determine whether the particular demands annexed to the subpoenas were sufficiently tailored to the financial issues in the action, and whether it would be unduly burdensome for the entities to respond.

Father Did Not Implicitly Consent Referee by Merely Participating in Custody Proceeding. Referee Had No Jurisdiction.

In Gale v Gale, --- N.Y.S.2d ----, 2011 WL 4090031 (N.Y.A.D. 2 Dept.) the Appellate Divison reversed on the law and remitted for a new hearing, an order of the Family Court which, after a hearing, granted the mother's petition to modify the custody provisions of a judgment of divorce so as to award her sole custody of the parties' children, and denied the fathers petitions for sole custody of the children. It pointed out that a referee derives authority from an order of reference by the court (see CPLR 4311), which can be made only upon the consent of the parties, except in limited circumstances not applicable here. It found that the parties did not stipulate to a reference in the manner prescribed by CPLR 2104. In any event, there was no indication that there was an order of reference designating the referee who heard and determined the petitions at issue here. It observed that that contrary to the mother's contention, the father did not implicitly consent to the reference merely by participating in the proceeding without expressing his desire to have the matter tried before a judge (see McCormack v. McCormack, 174 A.D.2d at 613). The Court held that “...to the extent that certain dicta in Chalu v. Tov-Le Realty Corp. (220 A.D.2d 552, 553) may suggest a different conclusion, it is not to be followed.” Furthermore, a stipulation consenting to a reference to a specified referee, executed by the parties in connection with the father's previous petition to modify the visitation schedule, expired upon completion of that matter and did not remain in effect for this matter. Accordingly, the referee had no jurisdiction to consider the father's petitions related to custody and visitation and the mother's petition to modify custody, and the referee's order determining those petitions had to be reversed.

Mootness Doctrine Explained in Opinion Dismissing Visitation Appeal as Academic

In Matter of Cissee v Graham, --- N.Y.S.2d ----, 2011 WL 4090037 (N.Y.A.D. 2 Dept.), the mother, who was Muslim, and the father, who was Roman Catholic, had one child together, a daughter born on March 24, 2001. In an order dated June 30, 2004 Family Court awarded custody of the child to the mother and visitation to the father, with such visitation to occur pursuant to a stipulation signed by the parties. In a separate order, also dated June 30, 2004, made pursuant to the aforementioned stipulation, the Family Court provided, among other things, that the child was "to be exposed to the Catholic traditions and Muslim traditions." In an order dated August 31, 2005, the parties stipulated to the father having additional visitation time in 2005. Subsequently, the mother filed a petition, in effect, to modify the visitation provisions of the aforementioned orders and the father filed a petition to modify the custody order by awarding him custody of the child. During the pendency of those proceedings, the Family Court issued an order dated August 7, 2009, which modified the June 30, 2004, order made upon the parties' stipulation by directing that "either or both parents may enroll the child in religious instruction in their faith." When the parties appeared before the Family Court on March 15, 2010, for a continued hearing on the petitions, the father, through counsel, requested a temporary change in the visitation schedule to allow the child, in May 2010, to attend rehearsal for her first communion, the ceremony for her first communion at the father's Roman Catholic church, and any associated celebrations. Despite the mother's objection, in an order dated March 18, 2010, the Family Court granted the father's application. The Appellate Division dismissed the mothers appeal as academic. It observed that it is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal (Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 713). In general an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment. Contrary to the opinion of the dissent, the rights of the parties would not be directly affected by a determination of this appeal because the events associated with the temporary modification of the father's visitation schedule had already occurred, as conceded by the mother in her brief. Accordingly, the appeal was moot and could not properly be decided by the Court unless the exception to the mootness doctrine applied. The exception to the mootness doctrine occurs where the controversy or issue involved is "likely to recur, typically evades review, and raises a substantial and novel question" (Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 811). Here, no exception to the mootness doctrine was argued or present, and the courts are prohibited from rendering purely advisory opinions absent an exception to the mootness doctrine. Justice Hall dissented and voted to decide the appeal on the merits.

Proper to Direct Disclosure Pertaining to the Retirement Benefits and Stock Options Obtained from Alleged New Business Acquired after the Marriage And/or from New Employment Entered into after the Marriage.

In Manditch v Manditch, --- N.Y.S.2d ----, 2011 WL 4090214 (N.Y.A.D. 2 Dept.) in an order dated April 15, 2010, the Supreme Court granted defendant's cross motion to compel the plaintiff to comply with discovery demands to the extent of directing the plaintiff to provide disclosure regarding an alleged new business acquired after the marriage. After receiving a request from the defendant's attorney to clarify the scope of the required disclosure and conducting a conference with the attorneys for both parties, the Supreme Court issued an amended order on June 2, 2010. The amended order clarified that the defendant was entitled to disclosure relating to the alleged new business acquired by the plaintiff after the marriage and/or to new employment entered into after the marriage, as well as retirement benefits and stock options arising out of such new business or new employment, since these retirement benefits and stock options could potentially be marital property under the terms of the parties' prenuptial agreement. The plaintiff subsequently moved to vacate so much of the amended order as directed him to disclose information relating to the retirement benefits and stock options obtained by him from the alleged new business and/or from new employment. Supreme Court denied the plaintiff's motion, and the Appellate Division affirmed. It held that Supreme Court providently exercised its discretion in issuing an amended order to clarify the scope of disclosure intended by its prior order dated April 15, 2010. Supreme Court properly directed the plaintiff to provide disclosure pertaining to the retirement benefits and stock options obtained by him from the alleged new business acquired after the marriage and/or from new employment entered into after the marriage. Broad pretrial disclosure enabling both spouses to obtain necessary information regarding the value and nature of the martial assets is deemed critical if the trial court is to properly distribute the marital assets. Moreover, the disclosure sought by the defendant was "material and necessary".

Liability for the Payment of Marital Debt May Be Distributed in Accordance with the Equitable Distribution Factors

In DiFiore v DiFiore,--- N.Y.S.2d ----, 2011 WL 4090241 (N.Y.A.D. 2 Dept.) the Appellate Division observed that the Supreme Court has broad discretion in allocating marital debt. In addition, "liability for the payment of marital debt[ ] need not be equally apportioned but may be distributed in accordance with the [equitable distribution] factors set forth in Domestic Relations Law 236(B)(5)(d)" (Lewis v. Lewis, 6 AD3d 837, 839-840). It agreed with the husband's contention that the remaining balance of a loan from his father to the parties toward the purchase of an apartment building should be repaid out of the wife's share of the proceeds of the sale of the apartment building in the principal amount of $48,388.99, plus 5% monthly interest from April 1, 2008, to the date of payment. Pursuant to the pendente lite order dated April 2, 2004, the wife was to receive the rental income from the apartment building, and pay the loan from these proceeds. She failed to do so. The prior decision and order of the Court dated June 7, 2011 (DiFiore v DiFiore, 85 AD3d 714), was recalled and vacated.

Dismissal of Counterclaims for Partition and Recoupment Warranted Pursuant to Cplr 3211(a)(4) Because There Was Already an Action Pending Between the Parties That Sought, in Essence, the Same Relief.

In L.L. v B.H.,--- N.Y.S.2d ----, 2011 WL 4007741 (N.Y.Sup.) the parties and their son resided together at XXX Ascan Road, Franklin Square, New York. The residence was purchased for $178,000.00 on November 13, 1991, thirty (30) days prior to the parties marriage. Title was in the names of the husband and wife, as joint tenants with rights of survivorship. There appeared to be no mortgages on the residence. The wife moved to dismiss the husbands counterclaims for partition and recoupment. In support of the motion, counsel for the wife alleged, among other things, that because disposition of the marital residence was an issue to be decided in the matrimonial action as part of equitable distribution, actions for partition and recoupment were improper as they sought to divest the court of its right to determine equitable distribution of the assets and obligations of the parties and exclusive occupancy of said residence. Counsel for the wife argued that this matrimonial action is regulated by Domestic Relations Law (DRL) 236(B)(5), and not Real Property Actions and Proceedings Law (RPAPL) 901 which permits partition, and that partition and recoupment are not cognizable legal theories in the context of a division of property between divorcing parties. In opposition to the motion, counsel for the husband alleged, among other thing, that the counterclaims for partition and recoupment statef legally cognizable causes of action and that the existence of a matrimonial action did not bar the husband from commencing an action for partition and recoupment.
Justice Falanga framed the issue presented as whether the husband was barred from bringing counterclaims for partition and recoupment when a matrimonial action has been commenced, in which equitable distribution of the marital residence is being sought as well as possible exclusive occupancy of same and a division of all other assets and obligations of the parties. He observed that in the case at bar, the parties acquired title to the property before they were married, as joint tenants with rights of survivorship, and their marriage did not transform the joint tenancy into one by the entirety, which could be created only by a conveyance to a husband and a wife. As such, the marital residence was not "marital property" subject to equitable distribution, as the residence constituted separate property of each of the parties acquired prior to the marriage. In Novak v Novak, 135 Misc.2d 909, 516 N.Y.S.2d 878 [Sup. Dutchess Co.1987] ) the court was faced with the same issue. The Novaks acquired a home as joint tenants ten (10) days before their marriage but they cohabited for only 2 1/2 months before the action for divorce was commenced. The court there rejected the wife's argument that the joint tenancy created an undivided one-half interest in each party and that said interests were not subject to equitable distribution. The court found that the property was not subject to equitable distribution because it was acquired prior to the marriage and because there could be little or no passive appreciation due to the briefness of the marriage, The Novak court allowed a claim for partition to stand because substantial improvements had been made to the residence and the equities of the parties had changed with the contributions that each had made to the improvements. The Novak court found that, within the partition action, it was authorized to adjust all the equities arising out of the parties' relationship with respect to the property to be divided and, found that partition gave the court more flexibility to do equity than DRL 236 (B), given the unique circumstances of that case. In contrast, in the case at bar, the parties had been married and had resided in the subject residence for nearly twenty (20) years and raised their son there since he was born. Case law interpretation of DRL 236(B) had evolved since Novak to take into account the appreciation of separate property from the active contributions of the parties to the marriage, as spouse, parent, wage earner or homemaker.
It was the court's view that, in a matrimonial action, Domestic Relations Law 234 gives to the court broad authority to determine issues that arise between the parties with respect to title and possession of property and, when read in conjunction with DRL 236(B), which authorizes the court to distribute marital and separate property and to adjust debits and credits between the parties as equity would find just and proper given the circumstances of the case, each of the parties have sufficient remedies in the instant matrimonial action so that references to separate causes of action for partition and recoupment were duplicative and unwarranted. Neither party would receive any lesser or greater relief from a separate cause of action for partition or recoupment, when all of the relief that may be had in said actions were within the power of the court in the existing statutory scheme (cf., Chen v. Fischer, 6 N.Y.3d 94, 810 N.Y.S.2d 96, 843 N.E.2d 723 [C.A.2005]; Boronow v. Boronow, 71 N.Y.2d 284, 525 N.Y.S.2d 179, 519 N.E.2d 1375 [C.A.1988] ). The matrimonial forum is a convenient forum for transactions between these parties relating to pre-marital and post-marital property claims and form a convenient trial unit for the purposes of this litigation. (see, Chen v. Fischer, supra.) The court was unconvinced that the husband could obtain any relief in a partition or recoupment action that was different from what the court does in every case involving the equitable disposition and possession of property, some of which may be separate, and the distribution of assets and debts. It was the court's view that dismissal of the counterclaims was warranted, pursuant to CPLR 3211(a)(4), because there was already an action pending between the parties that sought, in essence, the same relief. The court found as a matter of law, that the partition and recoupment action were unwarranted and that the rights and remedies of the parties could be decided and granted in the matrimonial action. (cf. Boronow v. Boronow, supra.) As partition is an equitable remedy, a 50/50 split of the equity in the residence was not mandated, for the court may partition the property unevenly, in accordance with the contributions of the parties. That is the same exact remedy that is available in the matrimonial action and the court found that the issues raised in the counterclaims were subsumed into the matrimonial action where the court is given statutory powers to do equity. The court found the previous lower court cases holding to the contrary to be unpersuasive under the facts of this case. It was the court's view that, even when a property is acquired prior to the marriage and title is in both names of the parties, the matrimonial court has jurisdiction and authority to prevent unjust enrichment to either party. The wife's motion for an order dismissing the husband's counterclaims for partition and recoupment was granted and the counterclaims were dismissed.

CPLR Amendments of Interest to Matrimonial Attorneys - September 21, 2011

2011-09-21T17:16:00.001-04:00

Laws of 2011, Ch 473 , §1, amended CPLR 306-b, effective January 1, 2012, to provide that service be made within 120 days "after commencement of the action or proceeding." CPLR 306-b formerly required service of the summons and complaint, summons with notice, third-party summons and complaint, petition with notice of petition or order to show cause within 120 days after filing, with appropriate modifications where the statute of limitations is four months or less.

CPLR 306-b now provides:

§ 306-b. Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause. Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show cause shall be made within one hundred twenty days after the commencement of the action or proceeding, provided that in an action or proceeding, except a proceeding commenced under the election law, wherethe applicable statute of limitations is four months or less, service shall be made not later than fifteen days after the date on which the applicable statute of limitations expires. If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service.

Laws of 2011, Ch 473 , §2, amended CPLR 2101(f), effective January 1, 2012, to increase the time for raising objections to defects in form of a paper. The time in which an objection to a defect in form must be raised has been two days from receipt of the paper objected to. The period of time was amended from "two" to "fifteen" days.

CPLR 2101(f) now provides:

(f) Defects in form; waiver. A defect in the form of a paper, if a substantial right of a party is not prejudiced, shall be disregarded by the court, and leave to correct shall be freely given. The party on whom a paper is served shall be deemed to have waived objection to any defect in form unless, within fifteen days after the receipt thereof, the party on whom the paper is served returns the paper to the party serving it with a statement of particular objections.

Laws of 2011, Ch 473 , §3, amended CPLR 3025(b), effective January 1, 2012 , to require a party moving to amend its pleadings to attach a copy of the proposed amended pleading to its motion to amend that pleading, clearly showing the proposed changes to the pleading.

CPLR 3025(b) now provides:

(b) Amendments and supplemental pleadings by leave. A party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading.

Laws of 2011, Ch 473 , §4, amended CPLR 3217(a)(1), effective January 1, 2012, to extend the time period in which, at the outset of a case, a voluntary discontinuance may be obtained without need for a court order or a stipulation of settlement. Formerly, a party alleging a cause of action in a complaint, counterclaim, cross-claim, or petition could only unilaterally discontinue it without court order or stipulation by serving and filing the requisite notice on all parties "at any time before a responsive pleading is served or within twenty days after service of the pleading asserting the claim, whichever is earlier..."CPLR 3217(a)(1). CPLR 3217(a)(1) was amended to permit a voluntary discontinuance without court order or stipulation before the responsive pleading is served or within 20 days after service of the pleading of the claim, whichever is later.

CPLR 3217(a)(1) now provides:

1. by serving upon all parties to the action a notice of discontinuance at any time before a responsive pleading is served or, if no responsive pleading is required, within twenty days after service of the leading asserting the claim and filing the notice with proof of service with the clerk of the court; or