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Claimed Gestation Period of 303 Days Requires Reliable Medical Evidence It Is Scientifically Possible/Acknowledgment of Paternity by Another Did Not Preclude Petitioner from Bringing His Paternity Action

The Second Department determined that petitioner must produce reliable medical evidence that a 303-day gestation period (the time between sexual intercourse and birth) is scientifically possible before proceeding with a paternity action.  The court noted that an acknowledgment of paternity by another did not preclude petitioner from bringing his paternity action:

Appellate courts have held that the generally accepted period of gestation is between 38 and 40 weeks… . However, pregnancy periods can exceed that timeframe … . Indeed, in 1992, the Appellate Division, [3rd] Department, held that a period of gestation measured from the last menstrual period prior to the child’s birth can be between 265 and 299 days … . In the beginning of the last century, this Court, citing Code Napoleon, found that the period between sexual intercourse and birth could be up to 300 days … . Here, the petitioner alleges that 303 days, or 43 weeks and 2 days, elapsed between the last date of sexual intercourse with the mother and the birth of the child.

Any material deviation from the generally accepted average period of gestation must be explained with a reliable medical opinion … . Although no such evidence was presented at the hearing, under the circumstances of this case, a new hearing should be conducted to afford the petitioner an opportunity to present such evidence. Since the petitioner has the burden of proof, he must present reliable medical evidence to demonstrate that the 303-day gestational period alleged here is scientifically possible

A prior acknowledgment of paternity made in accordance with Family Court Act § 516-a does not serve as an insuperable bar to a claim of paternity by one who is a stranger to the acknowledgment … . * * * Therefore, upon remittal, if the petitioner satisfies his burden of demonstrating at the hearing, with reliable medical evidence, that a 303-day gestational period is scientifically possible, then the Family Court must determine whether to direct a DNA or genetic marker test in the child’s best interest.

 

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Custody and Visitation Can Only Be Determined by a Court—Custody and Visitation Arbitration-Award Invalid/However Child Support Can Be the Subject of Arbitration

The Second Department determined Supreme Court should not have confirmed the arbitration award to the extent the award dealt with custody and visitation.  Custody and visitation can be addressed only in the courts.  However, Supreme Court properly confirmed the arbitrator’s child support award, as there was no showing the award failed to comply with the Child Support Standards Act:

Although the parties consented to arbitration of custody and visitation matters, they had no power to do so. “Disputes concerning child custody and visitation are not subject to arbitration as the court’s role as parens patriae must not be usurped'” … . Accordingly, that branch of the petition which was to confirm the custody and visitation provisions of the arbitration award should have been denied, and the matter must be remitted to the Supreme Court, Kings County, for a hearing and determination as to the issues of custody and visitation … .

An arbitration award concerning child support may be vacated on public policy grounds if it fails to comply with the Child Support Standards Act (Domestic Relations Law § 240[1-b]; hereinafter the CSSA) and is not in the best interests of the children … . Here, the father failed to demonstrate that the award of child support was incompatible with the objectives of the CSSA and that it was not in the best interests of the children. Matter of Goldberg v Goldberg, 2015 NY Slip Op 00539, 2nd Dept 1-21-15

 

Children’s Attorney Entitled to Cross-Examine Petitioner’s Witnesses Despite Taking a Position Similar to Petitioner’s

The Third Department determined the children’s attorney was entitled to ask leading questions in the cross-examination of petitioner’s witnesses, even though the the attorney for the children had taken a position similar to petitioner’s.  The similar positions did not convert petitioner’s witnesses to witnesses for the children:

…[W]e reject respondent’s contention that Family Court erred by denying her request to require the attorney for the children to cross-examine petitioner’s witnesses before respondent’s cross-examination, or by permitting the attorney for the children to ask leading questions during cross-examination. Both of these claims are premised on respondent’s incorrect view that petitioner’s witnesses effectively became witnesses for the attorney for the children when she agreed with petitioner’s position. The duty of an attorney for the child is to represent the child and advocate for his or her position (see Family Ct Act § 241…). Contrary to respondent’s claim, the fact that here the exercise of this duty resulted in a position similar to that of petitioner did not effectively convert the two parties into one entity. Accordingly, the attorney for the children was entitled to ask leading questions while cross-examining petitioner’s witnesses (see Jerome Prince, Richardson on Evidence § 6-230 at 376 [Farrell 11th ed 1995]). Matter of Aniya L, 2015 NY Slip Op 00410, 3rd Dept 1-15-15

 

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The Second of Two Ceremonial Marriages Is Presumed Valid/Property Owned by Persons Not Legally Married, But Who Are Described as Married in the Deed, Own the Property as Tenants In Common with Right of Survivorship Pursuant to the Estates, Powers and Trusts Law (EPTL)

The Second Department determined plaintiff’s complaint was properly dismissed.  Decedent was plaintiff’s mother by her mother’s first marriage (in Haiti).  Plaintiff alleged that her mother’s subsequent marriage to defendant (in the US) was void because her mother never divorced plaintiff’s father. On that basis, plaintiff alleged that her mother and defendant owned real property as tenants in common, not tenants by the entirety, and therefore half of the property passed to her upon her mother’s death.  The Second Department held that the second marriage was presumed valid and plaintiff did not rebut the presumption.  The court further noted that, even if decedent and defendant were not legally married, the property would have been owned as a joint tenants with right of survivorship, by virtue of Estates Powers and Trusts Law (EPTL) 6-2.2(d):

Where as here, there are two ceremonial marriages at issue, the second marriage is presumed valid, requiring proof from the challenger that the first marriage was not terminated … .

The existence of a rebuttable presumption in favor of the defendant established his entitlement to judgment as a matter of law … . In opposition, the plaintiff failed to raise a triable issue of fact.

Further, even if [plaintiff’s mother] were not legally married to the defendant, the deed to the subject property nevertheless created a joint tenancy, with the right of survivorship … . The deed to the subject property was executed in 1980. Accordingly, EPTL 6-2.2(d), as amended in 1975, governs … . Pursuant to EPTL 6-2.2(d) “[a] disposition of real property . . . to persons who are not legally married to one another but who are described in the disposition as husband and wife creates in them a joint tenancy, unless expressly declared to be a tenancy in common.” Joseph v Dieudonne, 2015 NY Slip OP 00338, 2nd Dept 1-14-15

 

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Statute Prohibits Petition for Downward Modification of Support After Arrears Accrue/No Appeal Lies from an Order Entered by Consent

The Second Department determined father could not bring a petition for retroactive reduction of child support and a reduction of arrears after the arrears had accrued.  The court noted that father could not appeal an order he consented to:

Family Court Act § 451 provides that the court “shall not reduce or annul child support arrears accrued prior to the making of an application pursuant to this section.” A court “ha[s] no discretion to reduce or cancel arrears of child support which accrue before an application for downward modification of the child support obligation” … . Here, the father petitioned for a downward modification of his child support obligation after the arrears accrued. Thus, any modification was [*2]prohibited.

In any event, the Family Court properly concluded that the father was barred from relitigating the amount of arrears owed. The order dated July 11, 2012, which fixed the amount of arrears that the father owed, and provided the basis for the entry of the money judgment against him, was entered on his consent. On appeal, a party may not collaterally attack an order entered on his or her consent … . Matter of Cadwell v Cadwell, 2015 NY Slip Op 00369, 2nd Dept 1-14-15

 

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Evidence Insufficient to Support Neglect Finding, Criteria Explained/Repetition of Child’s Out-of-Court Statement Does Not Corroborate It

In reversing Family Court’s finding of neglect, the Third Department explained the analytical criteria and noted that a child’s out-of-court statement about his alleged consumption of alcohol was not corroborated by the child’s repetition of the statement:

“[A] party seeking to establish neglect must show, by a preponderance of the evidence, first, that a child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship” … . “In order for danger to be imminent, it must be near or impending, not merely possible” … , and regarding degree of care “the statutory test is minimum degree of care — not maximum, not best, not ideal” … .

…[W]e note that one factual determination made by Family Court as supporting its finding of neglect was that respondent allegedly pressured [the child] to take a sip of her eggnog and brandy beverage at the party. The child did not testify, but the court found that his out-of-court statement was sufficiently corroborated because he had made such a statement to two different adults, although he had both denied and affirmed the allegation to one of the adults. While the corroboration requirement is low …, “[i]t is well settled that ‘repetition of an accusation by a child does not corroborate [that] child’s prior account'” … . Here, the out-of-court repetition of the statement did not provide sufficient corroboration and the statement should not have been considered as part of the neglect determination. Matter of Cadence GG…, 2015 NY Slip OP 00261, 3rd Dept 1-8-15

 

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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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

 

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

 

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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