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Defendant’s Motion to Vacate a Default Judgment of Divorce Should Have Been Granted Even Though Defendant First Appeared and Then Withdrew

The Fourth Department defendant’s motion to vacate a default judgment of divorce should have been granted, even though the defendant had appeared in the action and then withdrew.  The court noted that a default judgment cannot be appealed and the only remedy is therefore a motion to vacate:

We reject plaintiff’s contention that defendant could not move to vacate the judgment based on excusable default pursuant to CPLR 5015 (a) (1) because he appeared and then withdrew his appearance on the record. Regardless of the fact that defendant appeared initially, the judgment was entered upon defendant’s default. Defendant therefore could not appeal from the judgment of divorce (see CPLR 5511) and, indeed, his only remedy was to move to vacate the judgment of divorce pursuant to CPLR 5015 (a) (1) … .

We conclude that defendant demonstrated both a reasonable excuse for the default and a meritorious defense …, and that he is entitled to vacatur of those parts of the judgment of divorce distributing the parties’ assets …, the only parts of the judgment challenged by defendant on appeal … . Defendant averred that he informed his attorney that he disagreed with the proposed resolution of the parties’ retirement accounts and did not want to finalize the judgment on those terms, but that he was subsequently unable to contact his attorney, and a default judgment of divorce was entered without his knowledge. Furthermore, the judgment of divorce failed to resolve the outstanding issues regarding distribution of the retirement accounts, the home equity loan, and defendant’s enhanced earning capacity, which issues the parties expressly acknowledged remained to be resolved and were dependent upon, at least in part, the forthcoming report. Marshall v Marshall, 2015 NY Slip Op 00059, 4th Dept 1-2-15

 

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Appeal Dismissed Pursuant to Fugitive Disentitlement Doctrine Reinstated Upon Posting of a Bond

The Fourth Department, which had previously dismissed respondent’s appeal pursuant to the fugitive disentitlement doctrine, reinstated the appeal upon respondent’s posting a $25,000 bond:

We previously dismissed respondent’s appeal from an “order of dismissal” entered by Family Court upon declining to sign an order to show cause seeking to vacate two orders entered on respondent’s default. One of the orders determined that respondent was in willful violation of a child support order, and the other order committed him to a term of six months of incarceration … . The court also issued a warrant for respondent’s arrest … . We determined that the fugitive disentitlement theory applied both to respondent’s order to show cause to vacate the default orders and to the subsequent appeal … . We nevertheless granted respondent leave to move to reinstate his appeal upon the posting of an undertaking in the amount of $25,000 with the court within 60 days of service of our order with notice of entry … . Respondent timely posted the undertaking and his motion to reinstate the appeal was granted by this Court.

“The principal rationales for the doctrine [of fugitive disentitlement] include: (1) assuring the enforceability of any decision that may be rendered against the fugitive; (2) imposing a penalty for flouting the judicial process; (3) discouraging flights from justice and promoting the efficient operation of the courts; and (4) avoiding prejudice to the nonfugitive party”… . By posting an undertaking in the amount of the child support arrears, we conclude that respondent has demonstrated that he is not flouting the judicial process and has provided a means of enforcement of the court’s order determining the amount of child support arrears in the event that the court’s determination is unchanged (see Family Ct Act § 471; CPLR 2502 [c]). We conclude that the fugitive disentitlement theory no longer applies to respondent … , and thus we reverse the order insofar as appealed from and remit the matter to Family Court to determine respondent’s application to vacate the orders entered on his default and the warrant for his arrest. Matter of Shehatou v Louka, 2015 NY Slip Op 00086, 4th Dept 1-2-15

 

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Robbery Petition Jurisdictionally Defective—No Nonhearsay Identification of Respondent As the Perpetrator

The Third Department determined the petition charging respondent with the equivalent of robbery in the second degree and petit larceny was jurisdictionally defective and must be dismissed, even though respondent admitted to the charged acts and did not seek dismissal of the petition.  Although the petition was supplemented by a video showing the person alleged to have committed the robbery and a letter identifying the respondent as that person, the letter was unsworn and unsigned:

A juvenile delinquency petition must contain “a plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of the crime charged and the respondent's commission thereof” (Family Ct Act § 311.1 [3] [h]…). “A juvenile delinquency petition that fails to contain non-hearsay allegations . . . establish[ing] . . . every element of each crime charged and the respondent's commission thereof is both legally insufficient and jurisdictionally defective” … . Finally, notwithstanding respondent's admission to the charged acts in Family Court and his failure to seek the dismissal of the petition, his assertion that the petition is facially insufficient can be considered for the first time on appeal as such claim regards a nonwaiveable jurisdictional defect … .

Although the statements in the victim's deposition constitute nonhearsay allegations establishing that property was forcibly stolen from him, the deposition does not establish that respondent was the individual who committed such acts. Nor do the video image and … letter identifying respondent as the individual wearing the blue jacket depicted therein cure the evidentiary deficiencies that render the petition invalid. In particular, the video image shows, among other things, a male wearing a blue jacket with a white-striped sleeve that matches the description provided in the victim's report; however, the image itself does nothing to connect respondent to the robbery. Moreover, as [the] letter to the investigating police officer identifying respondent as the person wearing a blue jacket with white stripes on the sleeve was unsigned and unsworn, it does not constitute a nonhearsay identification of respondent as the person who committed the charged acts, thereby rendering the petition facially invalid … . Matter of Jayquan Vv, 2014 NY Slip Op 09086, 3rd Dept 12-31-14


 

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Prior Ties to New York Sufficient to Justify Jurisdiction of New York Courts over Custody Proceedings Brought by the Child’s Grandmother Two Months After the Child and Mother Moved to Florida

The Second Department determined New York did not have jurisdiction over the custody matter by virtue of Domestic Relations Law 76 (1)(a) but did have jurisdiction pursuant to Domestic Relations Law 76 (1)(b) ( Unified Child Custody Jurisdiction and Enforcement Act [UCCJEA]).  Respondent mother had moved from New York to Florida with the child two months before the custody proceedings were commenced by petitioner, the child's grandmother (who lives in New York).  The mother argued the New York courts did not have jurisdiction:

UCCJEA provides the jurisdictional grounds for a court of this state to hear an initial custody dispute, including when “this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state” (Domestic Relations Law § 76 [1] [a]…).

It is not disputed that New York was the home state of the child within six months prior to the time that petitioner commenced this proceeding. Because the child moved to Florida approximately two months prior to the commencement of the proceeding, the question presented is whether Family Court properly concluded that petitioner was a “person acting as a parent” for the purposes of the UCCJEA. A “person acting as a parent” is one who “(a) has physical custody of the child or has had physical custody for a period of six consecutive months . . . within one year immediately before the commencement of a child custody proceeding; and (b) has been awarded legal custody by a court or claims a right to legal custody under the law of this state” (Domestic Relations Law § 75-a [13]). …[B]ecause petitioner neither claims a right to legal custody nor has been awarded legal custody of the child, Family Court erred when it determined that petitioner was a “person acting as a parent” pursuant to Domestic Relations Law § 76 (1) (a).

…Having found that petitioner was not a “person acting as a parent,” it follows that, at the time this proceeding was commenced, the child, who had been living in Florida for fewer than six months, did not have a home state for purposes of the UCCJEA … . In such a case, a New York court may exercise jurisdiction if “(i) the child [and the parent] . . . have a significant connection with this state other than mere physical presence; and (ii) substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships” (Domestic Relations Law § 76 [1] [b]).

* * * … [W]e find that the record supports a finding that, at the time that the petition was filed, the child and respondent had a significant connection with New York and that “substantial evidence regarding her present and future welfare” existed in New York … . Accordingly, we find that Family Court had subject matter jurisdiction to entertain the petition. Matter of Breselor v Arciniega, 2014 NY Slip Op 09084, 3rd Dept 12-31-14


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In reversing Family Court in a custody proceeding and sending the matter back for complete forensic evaluations of the parties and a de novo hearing, as well as ordering the appointment of a new attorney for the child, the Second Department noted several significant evidentiary errors, including inadmissible hearsay, a violation of the Health Insurance Portability and Accountability Act (HIPAA), and the failure to order forensic evaluations of the parties:

Before a hearing on the petitions was held, the attorney for the subject child, based on the out-of-court statements of the day care provider, made an application for the father to be awarded temporary custody of the subject child. The Family Court granted that application. Such an award was improper, as it was based on the disputed hearsay allegations … .

During the hearing on the petitions, the Family Court erred in permitting the father to testify that the subject child told him that the mother's other daughter “did it.” The father's testimony was intended to show that the mother's other daughter might have sexually abused the subject child. The statement was inadmissible hearsay, and did not qualify as either prompt outcry evidence, or as a spontaneous declaration… . * * *

The Family Court also erred in overruling the mother's objection to the testimony of her other daughter's treating physician about his treatment of that child on the ground that the Privacy Rule standard of the Health Insurance Portability and Accountability Act of 1996 (hereinafter HIPAA) for disclosure of her other daughter's medical information was not met (see 45 CFR 164.512[e][1][i], [ii]). The mother's other daughter was not a party to the proceeding, and permitting her treating physician to testify in violation of HIPAA directly impaired the interest protected by the HIPAA Privacy Rule of keeping one's own medical records private. As such, the Family Court should have sustained the mother's objection to this testimony … . * * *

The Family Court erred in failing to order forensic evaluations of the parties, their living environments, and the subject child prior to issuing a decision on the petitions. “In custody disputes, the value of forensic evaluations of the parents and children has long been recognized” … . “Although forensic evaluations are not always necessary, such evaluations may be appropriate where there exist sharp factual disputes that affect the final determination” … . Here, in the absence of such evaluations, the record in this case is inadequate to support the court's finding that it was in the best interest of the subject child for the father to be awarded sole custody of her… .

Moreover, “[an attorney for the child] should not have a particular position or decision in mind at the outset of the case before the gathering of evidence” … . It is only appropriate for an attorney for a child to form an opinion as to what would be in the child's best interest, after such inquiry … . Here, it was inappropriate for the attorney for the subject child to have advocated for a temporary change in custody without having conducted a complete investigation. The attorney for the subject child acknowledged that his application was based solely on his discussion with the father and the subject child's day care provider, which was located near the father's residence, and that he did not speak to the mother or the subject child's other day care provider closer to the mother's residence. Matter of Brown v Simon, 2014 NY Slip Op 09127, 2nd Dept 12-31-14


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Neither CPLR 5015 Nor Family Court Act 451 Was a Bar to Mother’s Petition to Modify a Child-Support Money Judgment by Temporarily Suspending Interest

In reversing Family Court's denial of mother's petition to modify a child-support money judgment (temporary suspension of interest), the Second Department explained that neither CPLR 5015, nor Family Court Act 451 was a bar to the petition:

The mother's failure to allege any of the grounds listed in CPLR 5015 did not preclude her from seeking modification of the money judgment since the grounds set forth in the statute are not exhaustive … . Additionally, Family Court Act § 451 provides the Family Court with continuing jurisdiction over any support proceeding brought under Family Court Act article 4 “until its judgment is completely satisfied,” and authorizes it to “modify, set aside or vacate any order issued in the course of the proceeding” without limitation as to grounds (Family Ct Act § 451[1]). * * *

Contrary to the Family Court's conclusion, the prohibition contained in Family Court Act § 451 on modifying or vacating an order or judgment so as to “reduce or annul child support arrears accrued prior to the [filing of the petition for modification]” did not preclude the modification the mother sought through her motion, inasmuch as she proposed only to suspend interest on the money judgment prospectively from the date her modification petition was filed (Family Ct Act § 451[1]). Moreover, DSS, the party in whose favor the money judgment was entered, expressly consented to the suspension of interest on the money judgment as requested by the mother.  Matter of Nassau County Dept of Social Servs v Schapp, 2014 NY Slip Op 09139, 2nd Dept 12-31-14


Child Unborn When Sibling Found to Be Neglected Properly Found to Be Derivatively Neglected—Summary Judgment Properly Granted

The Second Department determined Family Court correctly granted summary judgment finding a child not yet born when a sibling was adjudicated neglected to be derivatively neglected.  The court explained the analytical criteria, including when summary judgment in such a case is warranted:

In determining whether a child born after the underlying acts of neglect should be adjudicated as a child who was derivatively neglected, the determinative factor is whether, taking into account the nature of the conduct and any other pertinent considerations, the conduct that formed the basis for a finding of neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists … . “In such a case, the condition is presumed to exist currently and the respondent has the burden of proving that the conduct or condition cannot reasonably be expected to exist currently or in the foreseeable future” … . “[I]n an appropriate case, the Family Court may enter a finding of neglect on a summary judgment motion in lieu of holding a fact-finding hearing upon the petitioner's prima facie showing of neglect as a matter of law and the respondent's failure to raise a triable issue of fact in opposition to the motion” … . Matter of Alicia P …, 2014 NY Slip Op 09140, 2nd Dept 12-31-14


Grandmother’s Pro Se Petition to Modify Visitation Is To Be Construed Liberally and Should Not Have Been Dismissed Without a Hearing

The Third Department determined Family Court should not have dismissed grandmother's petition to increase her visitation with the child without a hearing.  The court noted that because the grandmother filed her petition pro se, it should be construed liberally:

“A party seeking to modify a visitation order must show a change in circumstances resulting in a need for the modification to ensure the best interests of the child” … . Inasmuch as the grandmother filed her petition pro se, it should be construed liberally when considering whether she sufficiently alleged a change in circumstances (…see also CPLR 3026). Here, the grandmother alleged that an increase in visitation was warranted given that the child was older, the grandmother and child had developed a close bond, overnight visitation had never been addressed, and an overnight would permit the grandmother and the child to do more together, including spending time with family members who live farther away. While the mere passage of time and the child getting older do not constitute unanticipated changes in circumstances …, more was alleged here. Liberally construed, the grandmother's allegations in the petition adequately asserted that a sufficient change in circumstances has occurred. Matter of Ford v Baldi, 2014 NY Slip Op 09078, 3rd Dept 12-31-14


Child Not Yet Born When Father Neglected Siblings Was Properly Found to Be Derivatively Neglected

The Second Department determined that a child who had not been born at the time father was found to have neglected two siblings was properly determined to be derivatively neglected by the father:

“In determining whether a child born after underlying acts of abuse or neglect should be adjudicated derivatively abused or neglected, the determinative factor is whether, taking into account the nature of the conduct and any other pertinent considerations, the conduct which formed the basis for a finding of abuse or neglect as to one child is so proximate in time to the derivative proceeding that it can reasonably be concluded that the condition still exists'” … . If such a showing is made, ” the condition is presumed to exist currently and the respondent has the burden of proving that the conduct or condition cannot reasonably be expected to exist currently or in the foreseeable future'” … .

Here, the conduct which formed the basis for the Family Court's finding that the father neglected the subject child's two older siblings was “so proximate in time to [this proceeding] that it can reasonably be concluded that the condition still exists” …, and the father failed to complete the programs mandated by the prior order of disposition relating to the older siblings … . Thus, ACS [Administration for Child Services] demonstrated that the father derivatively neglected the subject child, and because the father ” failed to present any evidence to either rebut [ACS's] prima facie case or establish that the condition leading to [the] neglect finding as to the other child[ren] no longer existed,'” the derivative neglect finding was proper … . Matter of Madison B…, 2014 NY Slip Op 08991, 2nd Dept 12-24-14

 

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Supreme Court Should Not Have Denied Motion to Set Aside a Stipulation of Settlement Without a Hearing, Criteria Explained/Lower Court Properly Considered Issues Raised for the First Time in Plaintiff’s Reply Papers Because Defendant Availed Himself of the Opportunity to Oppose the Contentions at Oral Argument

The Second Department determined Supreme Court should not have denied plaintiff's motion to set aside the stipulation of settlement without a hearing.  The court explained the analytical criteria.  (It is worth noting that the Second Department found that Supreme Court properly considered matters raised for the first time in plaintiff's reply papers because the defendant availed himself of the opportunity to oppose the contentions at oral argument.):

“Marital settlement agreements are judicially favored and are not to be easily set aside” … . However, because of the fiduciary relationship existing between spouses, ” [a] stipulation of settlement should be closely scrutinized and may be set aside upon a showing that it is unconscionable or the result of fraud, or where it is shown to be manifestly unjust because of the other spouse's overreaching'” … .

“To rescind a separation agreement on the ground of overreaching, a plaintiff must demonstrate both overreaching and unfairness” … . ” [N]o actual fraud need be shown, for relief will be granted if the settlement is manifestly unfair to a spouse because of the other's overreaching . . . in its execution'” … . “[C]ourts may examine the terms of the agreement as well as the surrounding circumstances to ascertain whether there has been overreaching” … . However, generally, if the execution of the agreement is fair, no further inquiry will be made … . “[W]hile evidence that one spouse was not represented by counsel is insufficient, standing alone, to find overreaching, it is a significant consideration when determining whether the parties entered into the stipulation freely and fairly” … . “[C]ourts have thrown their cloak of protection [over] separation agreements and made it their business, when confronted, to see to it that they are arrived at fairly and equitably, in a manner so as to be free from the taint of fraud and duress, and to set aside or refuse to enforce those born of and subsisting in inequity” … . Jon v Jon, 2014 NY Slip Op 08961, 2nd Dept 12-24-14

 

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