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DENIAL OF MOTHER’S REQUEST FOR A LINCOLN HEARING WAS AN ABUSE OF DISCRETION.

The Fourth Department determined Family Court should have held a Lincoln hearing before granting father's motion to dismiss mother's petition to modify a custody order which awarded sole legal and primary physical custody of their daughter, now 14, to father:

We conclude that the court abused its discretion in denying the mother's request that it conduct a Lincoln hearing before ruling on the father's motion … . Such a hearing may be conducted “during or after fact-finding” … , and may be used to support an allegation of a change in circumstances … . The decision whether to conduct such a hearing is discretionary, but it is “often the preferable course” to conduct one … .

In this case, the child was 14 years old at the time of trial and expressed a preference to live with the mother, the Attorney for the Child did not oppose a Lincoln hearing, and many of the changed circumstances alleged by the mother concerned matters within the personal knowledge of the child but not that of the mother or her witnesses. Under those circumstances, we conclude that a Lincoln hearing would have provided the court with ” significant pieces of information [it needed] to make the soundest possible decision' ” … . Matter of Noble v Brown, 2016 NY Slip Op 02238, 4th Dept 3-25-16

FAMILY LAW (DENIAL OF MOTHER'S REQUEST FOR A LINCOLN HEARING WAS AN ABUSE OF DISCRETION)/CUSTODY (FAMILY LAW, DENIAL OF MOTHER'S REQUEST FOR A LINCOLN HEARING WAS AN ABUSE OF DISCRETION)/LINCOLN HEARING (DENIAL OF MOTHER'S REQUEST FOR A LINCOLN HEARING WAS AN ABUSE OF DISCRETION)

PRENUPTIAL AGREEMENT INTERPRETED TO WAIVE TEMPORARY MAINTENANCE DESPITE ABSENCE OF THE PRECISE TERM.

The First Department, over an extensive dissent, determined the prenuptial agreement waived both parties' entitlement to temporary maintenance during the divorce proceedings. The majority gleaned the intent to waive temporary maintenance from various provisions of the agreement, even though the terms “temporary maintenance” and “interim spousal support” were not used. The dissent argued that the waiver of “maintenance” in the agreement should not be interpreted to waive “temporary maintenance:”

Although the dissent acknowledges that “no particular catechism is required to waive temporary maintenance claims,” it nevertheless finds the agreement ambiguous and suggests that the parties may only have intended to waive a final award of maintenance. No fair reading of the agreement supports that conclusion. When read as a whole, the agreement contains no ambiguity as to whether the parties intended to waive temporary maintenance. As noted, the agreement waives “any and all” maintenance claims, “now and in the future.” Contrary to the dissent's view, there is nothing imprecise about the phrase “any and all.” Indeed, this Court has repeatedly found the use of that phrase to be “clear”… . Further, although minimized by the dissent, the agreement explicitly states that the parties are “fully capable of being self supporting,” which is another indicia that neither intended to seek any kind of maintenance. Anonymous v Anonymous, 2016 NY Slip Op 02016, 1st Dept 3-22-16

FAMILY LAW (PRENUPTIAL AGREEMENT INTERPRETED TO WAIVE TEMPORARY MAINTENANCE DESPITE ABSENCE OF PRECISE TERM)/MAINTENANCE (PRENUPTIAL AGREEMENT INTERPRETED TO WAIVE TEMPORARY MAINTENANCE DESPITE ABSENCE OF PRECISE TERM)/PRENUPTIAL AGREEMENT (PRENUPTIAL AGREEMENT INTERPRETED TO WAIVE TEMPORARY MAINTENANCE DESPITE ABSENCE OF PRECISE TERM)

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INADEQUATE WAIVER OF RIGHT TO COUNSEL REQUIRED REVERSAL; PRESERVATION OF THIS ISSUE NOT NECESSARY.

The Fourth Department reversed Family Court's finding respondent had willfully violated a court order because of an insufficient waiver of the right to counsel. The court noted that a prior decision requiring preservation of the right-to-counsel issue should no longer be followed:

Although the Support Magistrate properly advised respondent that he had the right to counsel (see Family Ct Act § 262 [a] [vi]), we agree with respondent that the Support Magistrate failed to make a ” searching inquiry' ” to ensure that his waiver of the right to counsel was a knowing, voluntary and intelligent choice, and thus that he was denied his right to counsel … . We therefore reverse the order and remit the matter to Family Court for a new hearing. To the extent that our decision in Matter of Huard v Lugo (81 AD3d 1265… requires preservation of a contention that the Support Magistrate erred in allowing the respondent to proceed pro se at a fact-finding hearing, that decision is no longer to be followed. Matter of Girard v Neville, 2016 NY Slip Op 01947, 4th Dept 3-18-16

FAMILY LAW (INADEQUATE WAIVER OF RIGHT TO COUNSEL REQUIRED REVERSAL, PRESERVATION OF THIS ISSUE NOT NECESSARY)/RIGHT TO COUNSEL (FAMILY LAW, INADEQUATE WAIVER OF RIGHT TO COUNSEL REQUIRED REVERSAL, PRESERVATION OF THIS ISSUE NOT NECESSARY)/APPEALS (FAMILY LAW, INADEQUATE WAIVER OF RIGHT TO COUNSEL REQUIRED REVERSAL, PRESERVATION OF THIS ISSUE NOT NECESSARY)

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JUVENILE DELINQUENCY ADJUDICATION AGAINST THE WEIGHT OF THE EVIDENCE; ANALYTICAL CRITERIA EXPLAINED.

The Second Department, over a dissent, determined the juvenile delinquency finding was against the weight of the evidence. The juvenile was accused of throwing a kitten under the wheels of a moving vehicle. The single-witness case relied upon weak identification evidence. The court explained the “weight of the evidence” analytical criteria in this context:

We must “weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions” … . In weighing the conflicting testimony in a single-witness identification case, as here, we must independently consider, among other things, the truthfulness and reliability of the identification testimony … . * * *

… [T]he reliability of the witness’s identification of the appellant was called into doubt by several factors. An examination of her testimony reveals that the witness had only a limited opportunity and ability to observe the perpetrator because the incident occurred over a relatively short period of time, and there was a distance of a minimum of 10 feet between the witness and the perpetrator during their interaction. The witness was also admittedly excited and upset during the incident. In addition, the witness’s description of the perpetrator lacked specificity, and did not include body shape, height, weight, facial features, skin tone, accent, or any distinctive characteristics. We further note that the incident occurred in the late afternoon near the time that students were being released from several neighborhood schools, that the perpetrator was dressed in a school uniform similar in type to the uniforms worn by students at those schools, and that the witness’s description of the school uniform worn by the perpetrator did not match the appellant’s school uniform. Under these circumstances, the witness’s identification of the appellant was not convincing when balanced against the substantial evidence submitted by the appellant in her own defense. Matter of Shannel P., 2016 NY Slip Op 01853, 2nd Dept 3-16-16

FAMILY LAW (JUVENILE DELIQUENCY ADJUDICATION AGAINST WEIGHT OF THE EVIDENCE)/JUVENILE DELINQUENCY (JUVENILE DELIQUENCY ADJUDICATION AGAINST WEIGHT OF THE EVIDENCE)/EVIDENCE (JUVENILE DELIQUENCY ADJUDICATION AGAINST WEIGHT OF THE EVIDENCE)/APPEALS (JUVENILE DELIQUENCY ADJUDICATION AGAINST WEIGHT OF THE EVIDENCE)/WEIGHT OF THE EVIDENCE REVIEW (JUVENILE DELIQUENCY ADJUDICATION AGAINST WEIGHT OF THE EVIDENCE, CRITERIA EXPLAINED)

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WIFE SHOULD HAVE BEEN ALLOWED TO INTERVENE IN AN ACTION SEEKING THE TURNOVER OF PERSONAL PROPERTY TO ENFORCE A JUDGMENT AGAINST HUSBAND; HER SEPARATE PROPERTY, AS OPPOSED TO MARITAL PROPERTY, COULD NOT BE REACHED BY A JUDGMENT CREDITOR.

The First Department determined the wife in a divorce proceeding, Wendy, should have been allowed to intervene in an action against her husband, Hugh, by plaintiff, Pensmore, seeking the turnover and sale of personal property to enforce a money judgment. Wendy submitted proof supporting her claim that the personal property in her possession was her separate property, not marital property, and therefore could not be reached by the creditor:

As a preliminary matter, we agree with Wendy that because Hugh was not in physical possession of the property which is the subject of the turnover order, the enforcement proceeding should have been brought as a special proceeding pursuant to CPLR 5225(b). Wendy was required to have been named as a party and separately served with the petition, because she is the one in actual possession of the disputed property (CPLR 5225[b] McKinney's Practice Commentary, 5225.5). Although Pensmore did not properly name Wendy, the error could have been cured by permitting Wendy to intervene, so long as the burden of proof remained on the judgment creditor (Pensmore) to establish that the judgment debtor (Hugh) has an interest in the property that is superior to the person in actual possession (Wendy) … .

The trial court was required to hold a hearing to determine whether the personal property in Wendy's possession is her sole separate property or marital property. * * *

While … an inchoate right to equitably share in marital property cannot be protected against third party creditors of a debtor spouse … , the same rule does not hold true for separate property of the non-debtor spouse. Domestic Relations Law § 236[B] provides that “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” is marital property (Domestic Relations Law § 236 [B][1][c]…). There is an exception, however, for “property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse;” such property is the separate property of that spouse (DRL § 236 [B][1][d]…). Separate property, is not “marital property” and it is not equitably distributed in a divorce action … . Although neither spouse has a vested interest in any property that is otherwise marital until it is distributed in a divorce action, separate property, unless transmuted or commingled, retains its character as the property of the spouse who owns it both during and after the marriage … . Pensmore Invs., LLC v Gruppo, Levey & Co., 2016 NY Slip Op 01789, 1st Dept 3-15-16

FAMILY LAW (SEPARATE PROPERTY OF A NON-DEBTOR SPOUSE, AS OPPOSED TO MARITAL PROPERTY, CAN NOT BE REACHED BY A JUDGMENT CREDITOR)/PERSONAL PROPERTY (SEPARATE PROPERTY OF A NON-DEBTOR SPOUSE, AS OPPOSED TO MARITAL PROPERTY, CAN NOT BE REACHED BY A JUDGMENT CREDITOR)/DEBTOR-CREDITOR (SEPARATE PROPERTY OF A NON-DEBTOR SPOUSE, AS OPPOSED TO MARITAL PROPERTY, CAN NOT BE REACHED BY A JUDGMENT CREDITOR)/CIVIL PROCEDURE (NON-DEBTOR SPOUSE SHOULD HAVE BEEN ALLOWED TO INTERVENE IN ACTION TO ENFORCE JUDGMENT AGAINST DEBTOR-HUSBAND)/INTERVENE, MOTION TO (NON-DEBTOR SPOUSE SHOULD HAVE BEEN ALLOWED TO INTERVENE IN ACTION TO ENFORCE JUDGMENT AGAINST DEBTOR-HUSBAND)

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FAMILY COURT SHOULD HAVE GRANTED MOTION FOR FINDINGS TO ENABLE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS).

The Second Department, reversing Family Court, determined mother’s motion for an order making the findings to enable her child to petition for special immigrant juvenile status (SIJS) should have been granted;

Pursuant to 8 USC § 1101(a)(27)(J) … and 8 CFR 204.11, a “special immigrant” is a resident alien who, inter alia, is under 21 years of age, unmarried, and dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. Additionally, for a juvenile to qualify for SIJS, a court must find that reunification of the juvenile with one or both of the juvenile’s parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under state law …, and that it would not be in the juvenile’s best interests to be returned to his or her native country or country of last habitual residence … .

Here, the child is under the age of 21 and unmarried, and has been “legally committed to, or placed under the custody of . . . an individual . . . appointed by a State or juvenile court” within the meaning of 8 USC § 1101(a)(27)(J)(i) … . Further, based upon our independent factual review, we find that the record supports the mother’s contention that the child’s reunification with her father is not viable due to abandonment … , and that it would not be in the best interests of the child to be returned to El Salvador … . Matter of Fatima J. A. J. (Ana A. J. S. — Carlos E. A. F.), 2016 NY Slip Op 01673, 2nd Dept 3-9-16

 

FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, MOTION FOR REQUISITE FINDINGS SHOULD HAVE BEEN GRANTED)/SPECIAL IMMIGRANT JUVENILE STATUS (MOTION FOR REQUISITE FINDINGS SHOULD HAVE BEEN GRANTED)

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MOTHER FAILED TO FIRST USE LESS DRASTIC CHILD-SUPPORT ENFORCEMENT MECHANISMS, MOTION TO HOLD FATHER IN CIVIL CONTEMPT PROPERLY DENIED.

The Third Department determined mother’s motion to hold father in civil contempt for alleged failure to pay child support and related expenses was properly denied. Mother did not first attempt to enforce the relevant provisions of the stipulation with a less drastic mechanism:

In matrimonial actions, Domestic Relations Law § 245 grants the court authority to punish a party for civil contempt pursuant to Judiciary Law § 756 where the party defaults “in paying any sum of money” required by a judgment or order, “and it appears presumptively, to the satisfaction of the court, that payment cannot be enforced” pursuant to the enforcement mechanisms provided in Domestic Relations Law §§ 243 and 244 and CPLR 5241 and 5242. “A civil contempt motion in a [matrimonial] action should be denied where the movant fails to make a showing pursuant to section 245 that resort to other, less drastic enforcement mechanisms had been exhausted or would be ineffectual'” … . Here, the mother did not attempt to utilize any less drastic enforcement mechanism before moving to hold the father in contempt, and failed to demonstrate that resort to a less drastic enforcement mechanism would be ineffectual. Contrary to the mother’s contention, the fact that the child care, medical care, and extracurricular activity expenses she sought payment of were not for a sum certain did not prevent her from seeking to fix any arrears due for those expenses and enforcing the father’s payment obligations through less drastic means. Rhodes v Rhodes, 2016 NY Slip Op 01657, 2nd Dept 3-9-16

FAMILY LAW (CHILD SUPPORT, MOTHER FAILED TO FIRST USE LESS DRASTIC ENFORCEMENT MECHANISMS, MOTION TO HOLD FATHER IN CIVIL CONTEMPT PROPERLY DENIED)/CHILD SUPPORT (MOTHER FAILED TO FIRST USE LESS DRASTIC ENFORCEMENT MECHANISMS, MOTION TO HOLD FATHER IN CIVIL CONTEMPT PROPERLY DENIED/CONTEMPT, CIVIL (CHILD SUPPORT, MOTHER FAILED TO FIRST USE LESS DRASTIC ENFORCEMENT MECHANISMS, MOTION TO HOLD FATHER IN CIVIL CONTEMPT PROPERLY DENIED)

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MOTHER ENTITLED TO HEARING ON HER PRO SE PETITION TO MODIFY A CUSTODY AWARD; FATHER SHOULD NOT HAVE BEEN GIVEN COMPLETE CONTROL OVER MOTHER’S VISITATION; ATTORNEY SHOULD HAVE BEEN APPOINTED FOR THE CHILDREN.

The Third Department, reversing Family Court, determined mother was entitled to a hearing on her pro se petition to modify the award of custody to father. The Third Department also noted that the court should not have delegated to father complete authority to control visitation with mother, and the court should have appointed an attorney for the children. With respect to the need for a custody-modification hearing and the visitation issue, the Third Department wrote:

As the party seeking to modify an existing custodial arrangement, the mother was required to demonstrate, as a threshold, that “there has been a change in circumstances since the prior custody order significant enough to warrant a review of the issue of custody to ensure the continued best interests of the children” … . The mother's petition, filed pro se, “should be construed liberally when considering whether she sufficiently alleged a change in circumstances” …, and she should be accorded “the benefit of every favorable inference” … . “While not every petition in a Family Ct Act article 6 proceeding is automatically entitled to a hearing, generally an evidentiary hearing is necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the [children's] best interests” … . * * *

With regard to the mother's request for visitation, there is a “presumption that visitation with the noncustodial parent is in the chil[ren]'s best interests” … and, “unless visitation is inimical to the [children's] welfare, Family Court is required to structure a schedule which results in frequent and regular access by the noncustodial parent” … . The record before us contains virtually no factual background information and, as such, does not disclose whether the denial of all visitation to the mother “was based [up]on compelling reasons” or if “visitation would be detrimental or harmful to the child[ren]'s welfare” … . While we express no opinion on the propriety of such visitation, we also note that the court should not have delegated to the father complete authority to determine whether there should be any visitation between the mother and children and under what conditions such contact should occur and, upon remittal, there must be a determination in this regard … . Matter of Harrell v Fox, 2016 NY Slip Op 01534, 3rd Dept 3-3-16

FAMILY LAW (MOTHER ENTITLED TO HEARING ON PRO SE PETITION TO MODIFY CUSTODY)/FAMILY LAW (FATHER SHOULD NOT HAVE BEEN GIVEN COMPLETE CONTROL OVER VISITATION WITH MOTHER)/FAMILY LAW (ATTORNEY SHOULD HAVE BEEN APPOINTED FOR CHILDREN IN MODIFICATION OF CUSTODY PROCEEDING)/CUSTODY (MOTHER ENTITLED TO HEARING ON PRO SE PETITION TO MODIFY CUSTODY)/VISITATION (FATHER SHOULD NOT HAVE BEEN GIVEN COMPLETE CONTROL OVER VISITATION WITH MOTHER)

FAMILY COURT SHOULD HAVE GRANTED AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL AS THE LEAST RESTRICTIVE ALTERNATIVE, RATHER THAN IMPOSING A PERIOD OF PROBATION; PETITION DISMISSED.

The Second Department determined a juvenile, Nigel H, who admitted committing what would constitute a misdemeanor arson offense, should have been granted an adjournment in contemplation of dismissal as the least restrictive sentencing alternative. The period of probation should not have been imposed. Because the probation term had expired, the court dismissed the petition, noting the potential consequences of a record of the offense:

 

The Family Court was required to impose the least restrictive available alternative consistent with the needs and best interests of Nigel H. and the need for protection of the community (see Family Ct Act § 352.2[2][a]). This “least restrictive available alternative” requirement compels the Family Court to balance the needs of the juvenile and the need for the protection of the community (see Family Ct Act § 352.2[2][a]…).

… [T]he least restrictive dispositional alternative available to the Family Court in this juvenile delinquency proceeding was the imposition of an adjournment in contemplation of dismissal. Family Court Act § 315.3(1) provides, in relevant part, that “[a]n adjournment in contemplation of dismissal is an adjournment of the proceeding, for a period not to exceed six months, with a view to ultimate dismissal of the petition in furtherance of justice.” Permissible terms and conditions of an adjournment in contemplation of dismissal may include “supervision by the probation service” (Family Ct Act § 315.3[2]). * * *

Here, the Family Court improvidently exercised its discretion in imposing a period of probation. Given Nigel H.’s many positive characteristics, his lack of prior criminal or behavioral issues, the services and support he is already receiving as a result of his placement in foster care, and the minimal risk that he poses to the community, an adjournment in contemplation of dismissal was warranted … . Matter of Nigel H., 2016 NY Slip Op 01326, 2nd Dept 2-24-16

 

FAMILY LAW (JUVENILE DELINQUENCY, COURT SHOULD HAVE GRANTED AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL RATHER THAN IMPOSING A PERIOD OF PROBATION)/JUVENILES (FAMILY COURT SHOULD HAVE GRANTED AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL RATHER THAN IMPOSING A PERIOD OF PROBATION)/LEAST RESTRICTIVE ALTERNATIVE (FAMILY COURT SHOULD HAVE GRANTED AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL RATHER THAN IMPOSING A PERIOD OF PROBATION)/SENTENCING (JUVENILE DELINQUENCY, FAMILY COURT SHOULD HAVE GRANTED AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL RATHER THAN IMPOSING A PERIOD OF PROBATION)

PROCEDURES MANDATED BY THE CHILD SUPPORT STANDARD ACTS NOT FOLLOWED; SUPREME COURT’S ORDER MODIFIED.

The First Department, in a full-fledged opinion by Justice Gische, determined Supreme Court did not follow the statutory requirements of the Child Support Standards Act (CSSA) and modified Supreme Court’s order. Supreme Court directed plaintiff-father to pay 100% of private school tuition for the child, and further ordered that plaintiff-father pay 100% of the cost of extracurricular, weekend and summer activities for the child. The First Department determined, under the CSSA, the extracurricular, weekend and summer activities should have been factored into child support. The court further determined that, because father and mother never married and lived together for only four months, the discussions between mother and father about private school for the child were not a sufficient ground for ordering father to pay for private school. The private school and extracurricular weekend and summer activities portions of Supreme Court’s order were vacated. The court explained the procedural requirements of the CSSA as follows:

The CSSA first requires a calculation of child support amount (Domestic Relations Laws 240 [1-b] [b][3]). It then allows for the payment of certain categories of enumerated add on expenses, prorated according to the parents’ relative incomes. The add on expenses permitted are expressly stated within the statute, with their own specific standards and considerations justifying the making of such an award. The add on expenses expressly addressed in the CSSA are: (1) child care expenses when a custodial parent is working, looking for work and/or engaged in an educational or training program that will lead to employment (Family Court Act § 413[1][c][4]; Domestic Relations Law § 240[1-b][c][4],[6]); (2) health insurance and unreimbursed medical expenses (Family Court Act § 413[1][c][5]; Domestic Relations Law § 240[1-b][c][5]; and (3) educational expenses (Family Court Act § 413[1][c][7]; Domestic Relations Law § 240[1-b][7]). Not expressly delineated as add on expenses in the statute are summer, extra curricular and/or weekend activities. Basic child support, when calculated properly, is presumed to meet all the child’s basic needs. Thus, the expenses of leisure, extracurricular and enrichment activities, such as after school clubs, sporting activities, etc., are usually not awarded separately, but are encompassed within the basic child support award. That is not to say that a court cannot order a parent to pay for these expenses over and above basic child support. If a court does so, however, it is a deviation from the basic statutory formula and requires an analysis under the commonly referred to paragraph “f” factors. Pursuant to Domestic Relations Law § 240 [1-b][f] (Family Court Act § 413[1][f]) “[u]nless the court finds that the non-custodial parent[‘s] pro-rata share of the basic child support obligation is unjust or inappropriate, which finding shall be based upon consideration of [certain] factors” enumerated in the CSSA, the child support calculation under the statute is presumptively correct. There are 10 enumerated factors to consider before deviating. They include the financial resources of the parties and child, the health, needs and aptitude of the child; the standard of living the child would have enjoyed had the household not been dissolved; tax consequences; nonmonetary contributions that a parent makes; educational needs of either parent; disparity in income of the parents; other child support obligation of the non-custodial parent; extraordinary expenses incurred in visitation and any other factor that the court finds relevant (Family Court Act § [1][f]; Domestic Relations Law § 240[1-b][f]). Although all the factors do not have to present, the court needs to articulate its reasons for making such a deviation from basic child support and relate those reasons to the statutory paragraph f factors … . Michael J.D. v Carolina E.P., 2016 NY Slip Op 01252, 1st Dept 2-18-16

FAMILY LAW (REQUIREMENTS OF CHILD SUPPORT STANDARDS ACT NOT MET BY SUPREME COURT, ORDER MODIFIED)/CHILD SUPPORT STANDARDS ACT (REQUIREMENTS OF CHILD SUPPORT STANDARDS ACT NOT MET BY SUPREME COURT, ORDER MODIFIED)

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