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Civil Contempt Does Not Include the Element of Willfulness/Adverse Inference May Be Drawn Re: Assertion of Privilege Against Self-Incrimination in Civil Contempt Proceeding

In a full-fledged opinion by Justice Angiolillo, the Second Department cleared up some confusion created by conflicting authority concerning whether willfulness was an element of civil contempt.  The defendant was held in contempt based upon his failure to deposit the proceeds of the sale of marital property with the court. The Second Department concluded willfulness is not an element of civil contempt.  In addition, the Second Department explained that the defendant’s assertion of his Fifth Amendment privilege against self-incrimination in the contempt proceedings did not preclude the court from drawing an adverse inference and did not relieve the defendant of his burden of proof:

…[W]e conclude that, for the plaintiff to prevail on her motion to hold the defendant in civil contempt, she was required to prove by clear and convincing evidence “(1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct” … . The use of the words “willful” and “willfully” in some of our cases involving civil contempt …, should not be construed to import the element of willfulness into a civil contempt motion made pursuant to Judiciary Law § 753(A)(3). “It is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes, or prejudices the rights or remedies of a party” … . * * *

“[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them” … . “In New York, unlike the rule in a criminal case, a party’s invocation of the privilege against self-incrimination in a civil case may be considered by the finder of the facts in assessing the strength of the evidence offered by the opposing party on the issue which the witness was in a position to controvert” … .  El-Dehdan v El-Dehdan, 2013 NY Slip Op 08404, 2nd Dept 12-18-13

 

 

Court Erred In Applying the “15% Increase in Income” Criteria for Support Modification to an Order Which Predated the 2010 Effective Date of the “15% Increase” Statutory Amendment/the 2008 Order Was Incorporated But Not Merged Into a 2012 Judgment

The Third Department determined Family Court erred in modifying child support based upon the father’s income having increased by 15%.  The 2008 child support order at issue pre-dated the 2010 effective date of the “15% increase” statutory amendment and the order was not merged with the 2012 judgment of divorce:

Family Court erred in finding that child support should be modified based on a 15% change in the father’s income.  Family Ct Act § 451 (2) (b) (ii) allows a court to modify an order of child support, without requiring a party to allege or demonstrate a substantial change in circumstances, where either party’s gross income has changed by 15% or more since the order was entered or modified.  When that provision was added to the statute through a 2010 amendment, however, the Legislature provided that “if the child support order incorporated without merging a valid agreement or stipulation of the parties, the amendments [to section 451] shall only apply if the incorporated agreement or stipulation was executed on or after [October 13, 2010]” (L 2010, ch 182, § 13).  The 2008 order was based upon the parties’ agreement, incorporated into the 2012 judgment of divorce and entered prior to the effective date of the statute’s 2010 amendments.  Accordingly, the amendments did not apply to a modification of this order, and Family Court should not have relied on the father’s 15% increase in income as the basis for modification.

For agreements executed prior to the effective date of the amendments to Family Ct Act § 451, the standard for modifying an order based on the parties’ agreement is whether the petitioning party has demonstrated “an unanticipated and unreasonable change in circumstances” or that the children’s needs are not being met … .  The mother’s generalized testimony that the costs of food, health care and clothing for the children had increased, as had the father’s income, was insufficient to meet her burden under that standard … .  Matter of Zibell v Zibell, 516324, 3rd Dept 12-12-13

 

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Service Upon Opposing Party of Objections to Support Magistrate’s Order Is a Condition Precedent to Consideration of the Objections and Appellate Review

Failure to properly serve opposing party with objections to Support Magistrate’s order precludes a consideration of the merits of the objections and appellate review:

Family Court Act § 439 provides, in pertinent part, that “[a] party filing objections shall serve a copy of such objections upon the opposing party,” and that “[p]roof of service upon the opposing party shall be filed with the court at the time of filing of objections and any rebuttal.” Here, given the mother’s evidence that she did not live at the address to which the father had mailed the objections, coupled with the father’s conceded failure to mail the objections to the correct address, and where “no rebuttal to the objections had been filed by the mother” … ,”the father failed to fulfill a condition precedent to filing timely written objections to the Support Magistrate’s order and, thus, failed to exhaust the Family Court procedure for review of [his] objections” … . Consequently, “the Family Court lacked jurisdiction to consider the merits of the objections, and the father waived his right to appellate review” … . Matter of Hamilton v Hamilton, 2013 NY Slip Op 08246, 2nd Dept 12-11-13

 

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Parent Ordered to Pay Attorney’s Fees for Attorney Appointed to Represent the Children Has Standing to Raise Legal Malpractice Defense

In a full-fledged opinion by Justice Saxe, the First Department determined that father, who had been ordered to pay the attorney’s fees for the attorney appointed to represented the children, had standing to raise the defense of legal malpractice:

…[A] parent may assert legal malpractice as an affirmative defense to the fee claim of an attorney for a child. The attorney for the child, no less than the attorneys for the parties, is serving as a professional and must be equally accountable to professional standards. That the children cannot hire and pay for their own attorneys, leaving it to the court to make the necessary appointment, does not alter the applicable standards, or the means by which they may be raised.  Venecia V v August V, 2013 NY Slip Op 08140, 1st Dept 12-5-13

 

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New York Had Continuing Exclusive Jurisdiction Re: Custody of Child Living With Mother In Florida Eight Months Per Year

Family Court had continuing jurisdiction over the custody of a child who had been living with mother in Florida.  The custody arrangement included four months per year with the father in New York:

…[T]he Family Court correctly determined that New York had exclusive, continuing jurisdiction to determine custody pursuant to Domestic Relations Law § 76-a. It is undisputed that the initial child custody determination was rendered in New York, and there is ” ample evidence of a significant connection by the child with this state for Family Court to retain jurisdiction'” (…see Domestic Relations Law § 76—a[1][a]). The father’s extensive parenting time took place in New York, the child has relationships with a half-sibling and extended family in New York, and the father has furthered the child’s education and attended to her medical care in New York … . Accordingly, the court correctly concluded that the child has a substantial connection to New York, that there was adequate evidence in this state regarding her present and future well-being, and that jurisdiction in the courts of this state is proper (see Domestic Relations Law § 76-a[1]). Matter of Seminara v Seminara, 2013 NY Slip Op 07978, 2nd Dept 11-27-13

 

Father Demonstrated His Loss of Employment Justified a Downward Modification of Child Support

The Second Department determined Family Court erred when it held father had not demonstrated his loss of employment constituted a substantial and unanticipated change in circumstances justifying a downward modification of his child support obligations:

Loss of employment may at times constitute a substantial and unanticipated change in circumstances … . A party seeking a downward modification of his or her child support obligation based upon a loss of employment has the burden of demonstrating that he or she diligently sought to obtain employment commensurate with his or her earning capacity … .

Here, the father testified that he is unable to pay child support because he lost his prior job in October 2010. More specifically, he stated that he had been working at a restaurant in the dual capacity of manager and head waiter. Following his loss of that employment, he sought and obtained a position as a manager at a restaurant at a lesser salary, but could not find a position working in the dual capacity of manager and head waiter.

Under these circumstances, the father demonstrated that his loss of employment and obtainment of new employment at a lesser salary constituted a substantial and unanticipated change in circumstances, and that he made a good faith effort to obtain new employment which was commensurate with his qualifications and experience… .  Matter of Dimaio v Dimaio, 2013 NY Slip Op 07969, 2nd Dept 11-27-13

 

 

Supreme Court Properly Declined to Give Husband Credit for Separate Property Contributions to Marital Residence—Husband Subsequently Conveyed Property to the Parties Jointly

The Third Department determined that Supreme Court properly declined to credit the husband with separate property contributions to the acquisition of the marital residence:

Although the residence was purchased prior to the marriage and the husband’s separate funds were used for the down payment and premarital mortgage payments, the husband conveyed the property to the parties jointly in 1998, creating a presumption that it then became marital property in its entirety … .  Under these circumstances, whether to grant the husband a credit for the contribution of separate property to the acquisition of this marital asset was within Supreme Court’s discretion …, and we find no abuse of that discretion here. Alecca v Alecca, 516659, 3rd Dept 11-21-13

 

Criteria for Reduction or Termination of Father’s Child Support Obligations Not Met/No Showing Wife Interfered with Access to Child/No Showing of Unjustified Abandonment by Child

The Third Department affirmed Family Court’s determination that the father’s child support obligations for his 18-year-old son should not be reduced or terminated.  The court described the relevant criteria:

Generally, a parent in this state is obligated to support his or her child until the child turns 21 (see Family Ct Act § 413 [1] [a]).  However, a noncustodial parent’s child support obligation may be suspended where such parent establishes that “the custodial parent unjustifiably frustrat[ed] the noncustodial parent’s right of reasonable access” … .  On the record before us, we agree with Family Court’s determination that the father failed to establish that the mother unjustifiably interfered with his visitation.  * * *

…[W]e similarly conclude that the record supports a finding that the father’s support obligation should not be terminated based upon the son’s refusal to have contact with him.  A child’s right to support payments may be forfeited when he or she is “of employable age and . . . actively abandons the noncustodial parent by, without cause, refusing contact” … .  However, the child’s refusal of contact must be “‘totally unjustified'” …, and “where it is the parent who causes a breakdown in communication with his [or her] child, . . . the child will not be deemed to have abandoned the parent” … .  Matter of McCloskey v McCloskey, 516342, 3rd Dept 11-21-13

 

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Criteria for Termination of Parental Rights Based Upon Abandonment Explained

The Third Department determined Family Court properly terminated respondent’s parental rights after a finding of abandonment:

Despite respondent’s intermittent homelessness, difficulties in arranging transportation, and lack of finances and accessible phone service, at some points during the six-month period she had housing and employment.  Thus, Family Court found that it would not have been impossible or unfeasible for respondent to contact petitioner or her child at some time during that period … .  …

Unlike in a permanent neglect proceeding, in an abandonment proceeding petitioner is not required to prove that it exercised diligent efforts to reunite the family or assist the parent in maintaining contact (see Social Services Law § 384-b [5] [b]…; compare Social Services Law § 384-b [7] [a], [f]).  The only statutorily authorized disposition after a finding of abandonment is an order committing the child’s custody to petitioner; a suspended judgment is not an option (see Social Services Law § 384-b [3] [g]; compare Family Ct Act § 631 [permitting suspended judgment as an option after a finding of permanent neglect]).  Thus, Family Court properly terminated respondent’s parental rights.  Matter of Erving BB …, 515880, 3rd Dept 11-21-13

 

Amendment Allowing the Consideration of Incarceration as a Reason for a Downward Support Modification Is Not Applied Retroactively

The Third Department affirmed Family Court’s finding that the amendment to Family Court Act section 451 (which allows a court to consider incarceration as a reason for a downward support modification) does not apply retroactively:

Before the 2010 amendment to Family Ct Act § 451, a parent’s loss of income resulting from incarceration generally was not considered a sufficient change in circumstances to warrant a reduction or suspension of child support … .  As part of legislation making many changes regarding child support (see Assembly Mem in Support, 2010 McKinney’s Session Laws of NY at 1747), Family Ct Act § 451 was amended in several respects including, as relevant here, to provide that “[i]ncarceration shall not be a bar to finding a substantial change in circumstances provided such incarceration is not the result of nonpayment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment” (Family Ct Act § 451 [2] [a]; see L 2010, ch 182, § 6).  However, the legislation further provided that, as to the section that included this amendment, it “shall apply to any action or proceeding to modify any order of child support entered on or after the effective date of this act”… .  Matter of Baltes v Smith, 514485, 3rd Dept 11-21-13

 

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