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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

 

Grandmother Had Standing to Request Visitation/Visitation Properly Granted

The Third Department affirmed Family Court’s determination that grandmother had standing to petition for visitation with the child (Dakota) and that such visitation was in the best interests of the child. With respect to the standing criteria, the Third Department wrote:

Family Court correctly determined that petitioner established standing to petition for visitation with Dakota. When a child’s parents are living, a grandparent who seeks visitation with his or her grandchild must establish that “conditions exist which equity would see fit to intervene” (Domestic Relations Law § 72 [1]) in order to obtain standing … . The grandparent “must establish a sufficient existing relationship with [his or her] grandchild, or in cases where that has been frustrated by the parents, a sufficient effort to establish one, so that the court perceives it as one deserving the court’s intervention” … .  In the latter situation, the grandparent’s “effort is measured against what [he or she] could reasonably have done under the circumstances”… . Matter of Rubel v Wilson, 511985, 3rd Dept 11-21-13

 

Family Court Should Not Have Terminated Parental Rights (After an Alleged Violation of a Drug-Treatment Condition of a Suspended Judgment) Without Holding the Necessary Hearings

The Second Department sent the matter back to Family Court for a hearing on whether the parents (after a finding of permanent neglect) violated the drug-treatment condition of a suspended judgment, and, if warranted, a new dispositional hearing with respect to the termination of parental rights. Family Court, based solely on documents from DSS, determined the parents had violated the drug-treatment condition of the suspended judgment, and, on that ground, had terminated the parents’ parental rights without any hearings:

Upon a finding of permanent neglect, the Family Court may suspend judgment, “during which time the parents must comply with terms and conditions that relate to the adjudicated acts or omissions of the parents which led to the finding of [permanent] neglect” (…see Family Ct Act §§ 631[b]; 633). By enacting Family Court Act §§ 631(b) and 633, the Legislature vested the Family Court with discretion to give a parent of a permanently neglected child a second chance before terminating the parent’s parental rights … . If a parent fails to comply with the terms and conditions of a suspended judgment, “a motion or order to show cause seeking the revocation of the order” suspending judgment “may be filed,” and “if, after a hearing or upon the respondent’s admission, the court is satisfied that the allegations of the motion or order to show cause have been established and upon a determination of the child’s best interests, the court may modify, revise or revoke the order of suspended judgment” (22 NYCRR 205.50[d][1], [5] [emphasis added]). “The Family Court may revoke a suspended judgment after a violation hearing if it finds, upon a preponderance of the evidence, that the parent failed to comply with one or more of its conditions” … . * * *

…[E]ven if the Family Court had conducted a hearing on the DSS’s motion to hold the parents in violation of the drug-treatment condition, and had determined that the violations had been established by a preponderance of the evidence, the Family Court was required to conduct an inquiry into the children’s best interests before terminating the parents’ parental rights … . Although a separate dispositional hearing is not always required in a proceeding to enforce a suspended judgment where the violation hearing or prior proceedings established that the court was aware of and considered the children’s best interests …, this is not such a case … . The Family Court conducted no hearing at all on the motion to hold the parents in violation of the drug-treatment condition, and the record does not otherwise show that the Family Court made an inquiry into or adequately considered the best interests of the children in terminating the parents’ parental rights.  Matter of Timmia S, 2013 NY Slip Op 07739, 2nd Dept 11-20-13

 

Modification of Custody Reversed

The Second Department reversed Family Court’s modification of a custody arrangement (changing custody from mother to father), finding there was no sound and substantial basis for the modification in the record. There was evidence that the father induced the mother to agree to allow him to have custody of the child while she recovered from surgery by falsely stating the arrangement would be temporary:

Upon weighing the appropriate factors (see Eschbach v Eschbach, 56 NY2d 167), we find that the Family Court’s determination that the best interests of the child would be served by remaining in the father’s physical custody lacked a sound and substantial basis in the record, and that the child’s best interests will be served by awarding the mother sole physical custody of the child. The Family Court failed to give sufficient weight to the mother’s testimony, which it credited, that she only intended for the father to have custody of the child temporarily while she underwent a hysterectomy and moved from Washington to Colorado with her new husband. The record here shows that the mother, who stays at home to care for her children, has been the primary caregiver throughout the child’s life, while the father had limited involvement with the child until the mother transferred custody to him …. Furthermore, while living with her mother, the child thrived both at home and at school … .  * * * The Family Court also erred in finding that the mother replaced the “father figure” in the child’s life. The record contains no evidence to support a finding of parental alienation against the mother.

The Family Court also failed to give sufficient weight to the fact that the child’s relationship with her half-siblings, who reside with the mother, will continue to be disrupted if she remains in the father’s care, as the record demonstrates that the child and her half-siblings have a close and healthy relationship. Courts will not disrupt sibling relationships unless there is an overwhelming need to do so… . Matter of Shannon J v Aaron P, 2013 NY Slip Op 07733, 2nd Dept 11-20-13

 

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Neglect Finding Cannot Be Based Upon Theoretical Future Harm

The Fourth Department determined that a finding of neglect “cannot be based upon the child’s possible reaction to future harm:”

…DSS failed to meet its burden of establishing by a preponderance of the evidence that the “child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired” as a consequence of respondent’s failure to exercise a minimum degree of care … .  The court’s finding of neglect hinges of the testimony of DSS’s expert psychologist that respondent’s dismissive response to the child’s allegations that she had been sexually abused by her eight-year-old cousin put the child at risk of harm because such response would cause the child to be reluctant to report future allegations of abusive contact.  The evidence did not establish that the child was in fact sexually abused, and we therefore conclude that the court erred in finding that respondent is chargeable with neglect for failing to protect the child from actual harm … .  Moreover, the finding of neglect cannot be based upon the child’s possible reaction to future harm.  “[A] finding of neglect will not be based on a failure to prevent theoretical future harm which never occurred” … .  Matter of Lebraun H … 1203, 4th Dept 11-15-13

 

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Test for Sufficiency of Evidence of Accessorial Liability Is Same As Test for Sufficiency of Circumstantial Evidence

The Second Department upheld Family Court’s juvenile delinquency finding and explained the burden of proof.  The appellant argued on appeal that, although he was present at the robbery, there was insufficient proof he participated in it:

“The evidence supporting a fact-finding in a juvenile delinquency proceeding is legally sufficient if, viewing that evidence in the light most favorable to the presentment agency, any rational trier of fact could have found the appellant’s commission of all the elements of the charged crimes beyond a reasonable doubt” … . The test is no different when the evidence supporting the fact-finding is circumstantial … . Although “[a] person’s mere presence at the scene of the crime, even with knowledge of its perpetration, cannot render him or her accessorially liable for the underlying criminal conduct” …, the complainant’s testimony in this case, when viewed in the light most favorable to the presentment agency, established the appellant’s active participation in the incident. Accordingly, the evidence was legally sufficient … . Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence …, we nevertheless accord great deference to the opportunity of the trier of fact to view the witnesses, hear the testimony, and observe demeanor … . Upon reviewing the record, we are satisfied that the Family Court’s fact-finding determination was not against the weight of the evidence (see Family Ct Act § 342.2[2]…).  Matter of Chakelton M, 2013 NY Slip Op 07484, 2nd Dept 11-13-13

 

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Cause of Action for Breach of “Sharing Assets” Agreement Entered Into During an 18-Year “Committed Same-Sex Relationship” Reinstated

In a full-fledged opinion by Justice Austin, over a dissent, the Second Department determined plaintiff had stated a cause of action for breach of contract based upon an agreement made during an 18-year “committed, same-sex relationship.” The complaint alleged that the partners had entered an oral “joint venture/partnership” agreement involving sharing assets, including retirement contributions and earnings, in exchange for plaintiff’s leaving her full-time job to care for the partners’ children. Supreme Court had dismissed the complaint. The Second Department reinstated the breach of contract cause of action but affirmed the dismissal of the constructive trust, unjust enrichment and accounting causes of action.  With respect to breach of contract, the court wrote:

[The] factual allegations adequately set forth the existence of a contract pursuant to which the plaintiff would quit working full-time, thereby ceasing to earn money toward her own retirement plan, and pursue part-time work enabling her to stay home to care for the parties’ children, in exchange for a one-half share in the defendant’s retirement accounts accrued during those years that the plaintiff refrained from working at a job which provided retirement benefits.

The alleged contractual agreement between the parties was supported by consideration. “Consideration consists of either a benefit to the promisor or a detriment to the promisee. It is enough that something is promised, done, forborne, or suffered by the party to whom the promise is made as consideration for the promise made to him [or her]” … . The consideration here for the alleged contract is the forbearance of the plaintiff’s  career, the inability to continue to save toward her retirement during that forbearance, and her maintenance of the household in return for a share in the defendant’s retirement benefits and other assets earned during the period of forbearance … . Since the plaintiff also alleged that the defendant breached the alleged agreement and that she has sustained damages as a result of that breach, at this pleading stage, the eighth cause of action must survive dismissal … .

The fact that the alleged agreement was made by an unmarried couple living together does not render it unenforceable. “New York courts have long accepted the concept that an express agreement between unmarried persons living together is as enforceable as though they were not living together, provided only that illicit sexual relations were not part of the consideration of the contract'” … . “[W]hile cohabitation without marriage does not give rise to the property and financial rights which normally attend the marital relation, neither does cohabitation disable the parties from making an agreement within the normal rules of contract law” … . Dee v Rakower, 2013 NY Slip Op 07443, 2nd Dept 11-13-13

 

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