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Evidence Did Not Support Imposition of Supervised Visitation Re: Mother’s Older Children—Evidence Included Family Court’s Taking Judicial Notice of Neglect Findings Re: Mother’s Younger Children

The Third Department, in a full-fledged opinion by Justice Egan, determined Family Court’s imposition of supervised visitation between mother and her two older children was not supported by the evidence—evidence which included Family Court’s taking judicial notice of the neglect proceedings involving mother’s younger children:

As for the grounds upon which Family Court elected to impose supervised visitation, although Family Court indeed was entitled to take judicial notice of the three neglect proceedings brought against the mother with respect to [the older children’s] maternal half siblings, two of the three proceedings predated the 2011 custody order wherein Family Court — following a hearing — granted the mother (unsupervised) visitation with [the older children]. Additionally, nothing in the record suggests that derivative findings of neglect were sought with respect to [the older children] in any of the neglect proceedings brought against the mother. To the extent that Family Court further relied upon the mother’s allegedly unaddressed mental health and anger management issues, as well as her purported lack of stable housing, these conclusory and unsubstantiated hearsay statements — taken verbatim from the permanency hearing report prepared by one of petitioner’s caseworkers — are not, to our analysis, the type of evidence that may be invoked to significantly curtail the mother’s preexisting visitation rights with [the older children]. Finally, the sole witness to testify at the combined hearing was the mother, who detailed her visitation history with [the older children], revealed that she regularly exercised her visitation rights and indicated that such visits generally went well. Although the mother acknowledged that she and her teenage children did not always see eye to eye, the record as a whole fails to establish that affording the mother unsupervised visitation with [the older children] — who were 16 years old and 15 years old, respectively, at the time of the hearing — “would be inimical to the child[ren]’s welfare” … . Matter of Damian D…, 2015 NY Slip Op 00263, 3rd Dept 1-8-15

 

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Real Property Purchased by Husband Prior to the Marriage Cannot Be Transformed Into Marital Property, Despite’s Wife’s Contribution of Her Own Funds ($30,000) to the Purchase/Wife Entitled to Equitable Distribution of the Appreciation of the Property After Marriage But No Proof On that Topic Was Offered Here/Wife Entitled to Recoup Mortgage Payments Made by Her

The Third Department, in a full-fledged opinion by Justice Stein, over a dissent, determined that real property purchased prior to marriage cannot be transformed into marital property by contributions made by the non-titled spouse, although the appreciation in value of the property attributable to the efforts of the non-titled spouse could be the subject of equitable distribution (there was a failure of proof on that issue here), and funds paid toward the mortgage by the non-titled spouse could be recouped:

“‘[W]hether a particular asset is marital or separate property is a question of law'” … . Marital property is defined as “all property acquired by either or both spouses during the marriage” (Domestic Relations Law § 236 [B] [1] [c] [emphasis added]), while “property acquired before marriage” is separate property (Domestic Relations Law § 236 [B] [1] [d] [1] [emphasis added]). Here, the husband purchased the marital residence in January 1994 — 2½ years prior to the parties’ marriage — paying $130,000 of his own funds and borrowing an additional $100,000 from his father, secured by a note and mortgage. Although the wife contributed $30,000 of her separate funds to the initial purchase of the residence, she did not attend the closing and the husband took title to the property in his name alone. The record reflects that the wife thereafter paid the mortgage for more than two years prior to the marriage, as well as after the parties were married through 2003, when a satisfaction of mortgage was issued, notwithstanding a principal balance remaining of approximately $52,000. Supreme Court determined that the wife’s contributions transformed the residence from the husband’s separate property into marital property, which was subject to equitable distribution. …[W]e disagree. * * *

…[W]hile Supreme Court’s finding that the wife made certain substantial contributions of money and effort toward the acquisition and maintenance of the marital residence is amply supported by the record, the effect of such contributions by the wife — particularly those she made before the marriage — is not to transform the husband’s premarital, separate property into marital property … . *  *  *

We note, however, that separate property contributions by a nontitled spouse could result in an appreciation of the value of the titled spouse’s separate property during the marriage, which appreciation would be subject to equitable distribution … . Here, inasmuch as the wife failed to prove the value of the residence at the time the parties were married, the amount of the property’s appreciation during the marriage — and, hence, the wife’s equitable share thereof — cannot be ascertained …, and no award may be made on this basis … .

We agree, however, with the wife’s alternative argument that she is entitled to recoup her equitable share of marital funds paid toward the mortgage. It is well settled that, in determining the “equitable distribution of marital property, a court has the authority to effectively recoup marital funds applied to the reduction of one party’s separate indebtedness” … . Here, the wife testified that she paid the mortgage on the marital residence from the date of the marriage until a satisfaction of mortgage was issued. Although it is not evident from the record what funds were used to make these payments, it can be presumed that marital funds were used (see Carr v Carr, 291 AD2d 672, 676 [2002]). Thus, the wife is entitled to an equitable share of the marital funds that were used to pay the husband’s separate indebtedness — the mortgage — during the marriage… . Ceravolo v DeSantis, 2015 NY Slip OP 00266, 3rd Dept 1-8-15

 

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Relationship Between Mother and Father Had Not Deteriorated to the Extent that the Joint Custody Arrangement Should Have Been Modified to Award Sole Custody to Mother

The Third Department reversed Family Court’s award of sole custody to the mother in a modification proceeding:

“A parent seeking to modify an existing custody order bears the burden of demonstrating a sufficient change in circumstances since the entry of the prior order to warrant modification thereof in the child[]’s best interests” … . Although the requisite change in circumstances may be found to exist where “the parties’ relationship has deteriorated to a point where there is no meaningful communication or cooperation for the sake of the child” …, the record before us falls short of establishing that the mother and father’s relationship has become so acrimonious as to preclude an award of joint custody. * * *

…[W]e note that the father’s stated basis for seeking sole custody stemmed not from an expressed or demonstrated inability to get along with the mother but, rather, from his concerns regarding the mother’s stability in light of her documented — and undisputed — mental health and alcohol dependency issues. Similarly, although the mother — both in the context of her modification petition and during the course of her testimony at the hearing — requested that Family Court alter the physical custody arrangement, she did not ask that Family Court award her sole custody of the child … . Under these circumstances, and inasmuch as the parties otherwise failed to demonstrate a sufficient change in circumstances to warrant modification of the prior custody order, Family Court erred in awarding sole legal and physical custody to the mother … . Matter of Dornburgh v Yearry, 2015 NY Slip OP 00260, 3rd Dept 1-8-15

 

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Mother’s Violations of Conditions of a Suspended Judgment, Under the Facts, Justified Termination of Parental Rights (Against the Wishes of the Child)

The Third Department determined Family Court, under the facts, properly terminated petitioner’s parental rights because of petitioner’s failure to comply with the conditions of a suspended judgment (against the express wishes of the child):

It is well settled that a suspended judgment gives a parent who is found to have neglected his or her child “a brief grace period within which to become a fit parent with whom the child can be safely reunited” … . Where, as here, it is established by a preponderance of the evidence that the parent has failed to comply with the terms and conditions of a suspended judgment, such judgment may be revoked and parental rights may be terminated … . Furthermore, “petitioner is not obligated to wait until the end of the period of suspended judgment to seek to revoke the suspended judgment” where the parent has repeatedly violated the judgment’s terms and conditions … . * * *

Although respondent’s breach of the express conditions of the suspended judgment “‘does not compel the termination of [his] parental rights, [it] is strong evidence that termination is, in fact, in the best interests of the child[]'” … . The child’s foster mother averred that he struggled emotionally when respondent’s visitation became inconsistent and that, despite being asked to become involved in the child’s athletic activities, respondent has failed to attend any games or practices. The child’s placement in his foster home has given him a safe, stable and caring environment in which he has bonded with his foster parents and siblings. Family Court, although obviously disheartened in resolving the instant petition contrary to the child’s express wishes, ultimately determined that his best interests would be served by terminating respondent’s parental rights and clearing the way for him to be permanently placed with the foster family. Inasmuch as Family Court’s determination has a sound and substantial basis in the record, it shall remain undisturbed … . Matter of Michael HH, 2015 NY Slip Op 00258, 1-8-15

 

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Property Purchased by Husband Upon Which a “Shell” of a House Was Constructed Prior to Marriage Should Not Have Been Deemed Marital Property/Husband’s Failure to Affirmatively Prove What Portion of His Savings Account Was Separate Property Justified Dividing It Equally/Wife’s Failure to Prove How She Contributed to the Appreciation of the Marital Residence Precluded the Award of Any Appreciation in Value to Her

The Third Department determined Supreme Court was correct in some instances but erred in other instances in its findings re: separate and marital property. The marital residence was not subject to equitable distribution because the husband purchased the land and erected a “shell” of a house prior to marriage. The property cannot thereafter be transformed into marital property by virtue of the improvements made to it.  The decision is notable for pointing out the results of failures of proof.  The husband failed to prove what portion of his savings plan was separate property, so the court correctly divided it equally.  The wife failed to prove what portion of the improvements to the husband’s separate property (their residence) was attributable to her, she therefore was not entitled to any portion of the property’s appreciation in value:

… [T]he husband’s Thrift Savings Plan … was established prior to the marriage and remains in the husband’s name. The uncontroverted proof demonstrated that contributions were also made to the plan during the marriage, so at least a portion of the plan constituted marital property. The husband did not offer any proof at trial regarding the value of the separate portion of the plan but, rather, merely indicated that the wife was ineligible to receive any portion of the plan because she had allegedly abandoned him. Inasmuch as the proof was insufficient to enable Supreme Court to determine which portion of the plan was separate and which was marital, the court was entitled to equitably distribute the entirety of the plan … .

…Supreme Court failed to properly consider what part, if any, of his pension was separate property. The record establishes the husband’s starting and ending dates of employment with the United State Postal Service and the date of the parties’ marriage, thereby allowing the court to determine which portion of the pension — a defined benefit plan — was earned prior to the marriage and is, therefore, the husband’s separate property … . Accordingly, we remit the matter to Supreme Court for a determination of the percentage of the pension that is marital property and, thus, may be equitably distributed… .

Supreme Court erred in finding that the marital residence was marital property and awarding the wife 50% of the home’s appraised value minus a $10,000 separate property credit to the husband for the purchase price of the land. Supreme Court credited the wife’s testimony that, although the husband purchased the land and constructed a “shell” of a house prior to the marriage, the construction of the residence was not complete until approximately four years after the marriage. The record demonstrates that the vast majority of the improvements occurred during the marriage due, in part, to the wife’s contributions of money, time and labor. Nevertheless, for the reasons set forth in Ceravolo v DeSantis (___ AD3d ___, ____ [decided herewith]), a parcel of real property that is separate property cannot be transformed or transmuted into marital property by the efforts and contributions of the nontitled spouse. Accordingly, the parcel was separate property (see Domestic Relations Law § 236 [B] [1] [d] [1]), which is not subject to equitable distribution … .

Appreciation in value of separate property, from the date of the marriage to the date of commencement of the divorce action, can be considered a marital asset subject to equitable distribution “if the appreciation is due to the contributions or efforts of the nontitled spouse” … . The wife, as the nontitled spouse here, bore the burden of proving that any increase in value of the husband’s separate property was at least partially due to her efforts … . The value of the parcel when the husband purchased it is irrelevant, considering that the parcel was vacant at that time but had the outer structure of a house before the marriage. Additionally, the property’s value could have increased due to market forces between the dates of purchase and marriage. Simply crediting the husband for the purchase price and dividing the remainder of the property’s value between the parties would improperly give the wife half of the value of the appreciation between the dates of purchase and marriage, despite that portion of the appreciation being separate property (see Domestic Relations Law § 236 [B] [1] [d] [3]). Although the wife could have been entitled to equitable distribution of a portion of the residence’s appreciation in value for her contributions of time, money and labor toward improving the property, she did not meet her burden by proving the real property’s increase in value, as she did not submit proof of the property’s value on the date of the marriage to compare it to the value at the time of commencement of this action … . Macaluso v Macaluso, 2015 NY Slip Op 00265, 3rd Dept 1-8-15

 

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Even Though Husband’s Funds Were Deposited in a Joint Account, the Portion of those Funds Used for a Down-Payment on the Marital Residence Was Properly Deemed Husband’s Separate Property; Supreme Court Abused Its Discretion In Ordering the Sale of the Marital Residence—Wife Entitled to Exclusive Possession Until Child Turns 18

The Third Department determined that the husband’s separate property, which had been deposited in a joint account before a portion of it  was used for a down-payment on the marital residence, was properly deemed the husband’s separate property to the extent it was used for the down-payment. The Third Department further determined Supreme Court had abused its discretion in ordering the marital residence sold. Under the facts, the mother was entitled to exclusive possession until the child turns 18:

Supreme Court erred in directing that the marital residence be listed for sale. Our case law reflects “‘a preference for allowing a custodial parent to remain in the marital residence until the youngest child becomes 18 unless such parent can obtain comparable housing at a lower cost or is financially incapable of maintaining the marital residence, or either spouse is in immediate need of his or her share of the sale proceeds'” … . Proof at trial established that the parties’ young children reside with the wife in the marital residence and, although she has the means to pay the mortgage, she is unable to refinance or purchase another residence. No evidence was adduced that the wife could obtain comparable housing at a lower cost or that either party is in immediate need to recoup their equitable share of the marital residence. Under these circumstances, we find that Supreme Court abused its discretion in directing that the marital residence should be listed for sale. Accordingly, the wife is entitled to exclusive possession of the residence until the youngest child reaches the age of 18 … . Albertalli v Albertalli, 2015 NY Slip OP 00257, 3rd Dept 1-8-15

 

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Right to Counsel Not Invoked by Defendant’s Telling Police He Wanted to Speak to his Attorney Before He Signed Anything; Spontaneous Statements Made After Right to Counsel Attached Not Suppressible; Non-Communicative Parts of Video Not Suppressible; Limited Right to Counsel Re: Deciding to Submit to Chemical Test Not Invoked

The Third Department, in reversing (in part) County Court’s suppression of videotaped statements made by the defendant after a DWI arrest, dealt in some depth with several issues:  (1) the court noted that, although a defendant seeking a suppression hearing must make sworn factual allegations supporting the motion, CPL [Criminal Procedure Law] 710.60 “does not mandate summary denial of defendant’s motion even if the factual allegations are deficient” and the hearing was properly granted in this case under “principles of judicial economy;” (2) the defendant did not invoke his right to counsel by telling the police he wanted to speak to his attorney before he signed anything; (3) the defendant did invoke his right to counsel when he subsequently asked that he be allowed to call his attorney; (3) defendant’s spontaneous statements, even those made after right to counsel attached, were not suppressible; (4) defendant’s responses to questions about the chemical test and where he last had a drink were suppressible; (5) the portions of the videotape that did not contain any communication were not suppressible; and (6) although a defendant has a limited right to counsel for the purpose of deciding whether to submit to a chemical test, the defendant did not exercise that right before refusing the test. With regard to spontaneous statements and the “non-communicative” portions of the video, the court wrote:

With a few exceptions, the video reveals that defendant’s statements in the period preceding the reading of his Miranda rights were made without any triggering words or conduct by the police. As the officers played no role in soliciting them, these statements constitute spontaneous declarations and should not have been subject to suppression … . However, at three points following defendant’s successful invocation of his right to counsel, officers asked him questions that should reasonably have been anticipated to elicit responses. The first such exchange occurred between 03:47:49 a.m. and 03:48:10 a.m., when defendant responded after an officer asked him what he thought would occur as a result of refusing a chemical test. The second occurred between 03:50:01 a.m. and 03:50:09 a.m., when defendant confirmed his last drinking location in response to a question by one of the officers. The third occurred between 04:01:05 a.m. and 04:06:23 a.m., when an officer asked defendant several questions about chemical testing and the events of the evening. Defendant’s responses to these inquiries cannot be said to be spontaneous. Thus, his statements during these three time periods and the corresponding portions of the video were properly suppressed.

As to portions of the video in which defendant was not speaking, evidence obtained from a defendant following invocation of the right to counsel is subject to suppression where it constitutes “a communicative act that disclose[s] the contents of defendant’s mind” … . Generally, a defendant’s physical characteristics and appearance are not considered to be communicative in nature … . Here, portions of the video in which defendant is silent show only his physical condition and appearance and do not disclose any communicative statements made after he had invoked his right to counsel. Whether any of these video segments may ultimately be deemed admissible at trial depends on other considerations not presented here, but there is no basis for their suppression as communicative statements … . People v Higgins, 2014 NY Slip Op 00253, 3rd Dept 1-8-15

 

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Reversible Error to Allow Cross-Examination of Defendant About an Unrelated Prior Crime

The Third Department determined it was reversible error to allow the defendant, who was convicted of manslaughter, to be cross-examinated about a unrelated prior crime involving an altercation and violence.  The evidence was not relevant to credibility and served only to demonstrate a propensity to instigate fights:

The People sought the court’s permission to cross-examine defendant about a previous guilty plea to a charge of harassment in the second degree based upon defendant’s physical altercation with another woman, maintaining that such questioning would be useful to, among other things, impeach defendant’s credibility. Despite defendant’s objection that such line of questioning would have no probative value, the court allowed the proposed cross-examination, stating that such evidence of defendant’s previous assault was “relevant” to “show that [defendant] can be physically aggressive” and, additionally, that such proof would speak to defendant’s anticipated testimony that she had acted in self-defense. The court went on to indicate that the admission of such evidence would not unduly prejudice defendant inasmuch as the prior incident did not involve a weapon or result in serious physical injury.

Based upon County Court’s authorization, the People cross-examined defendant at trial about the previous altercation, suggesting that defendant had instigated the fight and, further, emphasizing that defendant punched the woman with a closed fist, causing her to lose a tooth. Moments later, the People resumed its questioning about the altercation with the victim, asking defendant whether she baited the victim to come up to her apartment knowing that she would use a knife in a fight with the victim. As the questions regarding defendant’s prior assault bore no relation to defendant’s credibility, but rather served solely to illustrate defendant’s propensity to initiate fights so that she could physically attack other people, we find that County Court abused its discretion in allowing such inquiries … . Accordingly, as defendant’s guilt was not overwhelmingly established by the proof presented at trial and we “cannot say that there is no reasonable possibility that the error might have contributed to defendant’s conviction,” the judgment must be reversed and the matter remitted for a new trial … . People v Karuzas, 2015 NY Slip Op 00252, 3rd Dept 1-8-15

 

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Jury Should Not Have Been Allowed to Hear Defendant’s Refusal to Waive His Right to Remain Silent and His Invocation of His Right to Counsel

The Third Department determined defendant was entitled to a new trial because the jury was allowed to hear a recording in which defendant refused to waive his right to remain silent and invoked his right to counsel. Under the facts, the error was not harmless. The Third Department directed that the portion of the recording which recounts defendant’s criminal history be redacted on retrial:

….[D]efendant is entitled to a new trial. During their case-in-chief, the People generally cannot introduce evidence that a defendant invoked his or her constitutional right to remain silent or to obtain counsel … . At the trial here, the People played the recording of the police interview up to and including the portion in which defendant stated that he would not sign the line of the Miranda form indicating his willingness to speak to the detective, and defendant stated, “Let me have a lawyer.” This was improper because “it creates a prejudicial inference of consciousness of guilt” by letting the jury hear defendant invoke his constitutional rights … . People v Carey, 2015 NY Slip Op 00251, 3rd Dept 1-8-15

 

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Petitions to Relocate Are Not Subject to a “Change in Circumstances” Analysis But Rather a “Best Interests of the Child Analysis;” the “Lincoln” Hearing Was Improperly Held In the Presence of Parents’ Counsel and the Transcribed Proceedings Were Improperly Left Unsealed and Included in the Record on Appeal; An Article 10 Hearing, Where Counsel for the Parents Are Allowed to Be Present, Should Not Be Confused with an Article 6 Hearing, Where They Are Not

In affirming Family Court’s denial of mother’s petition to relocate, the Third Department noted that Family Court wrongly used “change in circumstances” as the criteria for analyzing the petition when it should have used “the best interests of the child” as the sole criterium.  The Third Department exercised its power to make its own factual analysis.  The court further noted that the Lincoln hearing in which the children testified was improperly conducted because counsel for mother and father were present and the transcribed proceedings were not sealed.  The court explained that the procedure used for Article 10 hearings, where counsel for the parties are present, should not be confused with the procedure for Article 6 hearings, where confidentiality is paramount:

As the mother contends, Family Court applied the incorrect standard in dismissing the relocation petition on the ground that the mother had failed to show a sufficient change in circumstances to warrant modification. No change in circumstances must be established to support a relocation petition, as the planned move itself is accepted as such … . Instead, the parent who wishes to relocate bears the burden of establishing that the proposed move is in the best interests of the children, a determination based upon such factors as the parents’ reasons for seeking or opposing relocation, the quality of the children’s relationships with each parent, the feasibility of developing a visitation schedule that will permit the children to retain meaningful relationships with the parent who does not move, the degree to which the move may offer economic, emotional and educational benefits for the relocating parent and the children, and the effect of the relocation on extended family relationships … . Although that analysis was not conducted here, this Court’s authority is as broad as that of Family Court, and the record is sufficiently complete to permit us to make the relocation determination based upon our independent review … . * * *

…[W]e note that Family Court conducted what was described as a “modified” Lincoln hearing, in which counsel for both parents were permitted to be present during the court’s interview with the children. The transcript of the interview was not sealed, and was included in full in the appellate record. Neither the presence of counsel other than the attorney for the children during the interview nor the failure to seal the transcript was proper. We reiterate that the right to confidentiality during a Lincoln hearing belongs to the child and is superior to the rights or preferences of the parents … . A child who is explaining the reasons for his or her preference in custody or visitation proceedings “should not be placed in the position of having [his or her] relationship with either parent further jeopardized by having to publicly relate [his or her] difficulties with them or be required to openly choose between them” … . We address this issue recognizing that, in the course of practice, confusion may have resulted from the different procedure followed during Family Ct Act article 10 proceedings, in which the presence of the parties’ counsel during an in camera interview with a child may be permissible due to the fundamental right of litigants in such proceedings to confront their accusers. Although these interviews have sometimes been inaccurately referred to as Lincoln hearings, they are conducted for entirely different purposes than the confidential interviews conducted during custody and visitation proceedings … . For the court to fulfill its primary responsibility of protecting the welfare and interests of a child in the context of a Family Ct Act article 6 proceeding, protecting the child’s right to confidentiality remains a paramount obligation … . Matter of Julie E v David E, 2015 NY Slip OP 00254, 3rd Dept 1-8-15

 

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