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Prior Stipulation Based Upon Inaccurate Information Properly Vacated

In a divorce proceeding, the Fourth Department upheld Supreme Court’s vacating the child support and maintenance provisions of a prior stipulation, finding that the wife had not disclosed all of her assets and earnings at the time the stipulation was entered.  The Fourth Department also upheld $50,000 of imputed annual income assigned to the wife by Supreme Court:

… [T]he court did not err in vacating the child support and maintenance provisions of the parties’ October 2009 stipulation.  In that stipulation, the parties had agreed to impute income to the wife in the amount of $15,000, and the husband had agreed to maintenance and child support awards to the wife based on that imputed income.  Although “[s]tipulations of settlement are favored by the courts and not lightly cast aside” (…see generally CPLR 2104), “[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” … .  We agree with the court that “a reasonable inference exists that the [wife did not] fully disclose[] h[er] financial assets . . . , and, as a result, the terms of the agreement were so inequitable as to be manifestly unfair to the [husband]” … . …[T]he wife had over $100,000 more in income than was imputed to her in the stipulation, and her income was more than two times what the husband had earned in any of the years before the stipulation.  We thus conclude that, regardless whether the wife can be said to have committed fraud, the wife’s failure to disclose her earnings in the stock market resulted in an agreement that was manifestly unfair to the husband.  Marlinski v Marlinski, 979, 4th Dept 11-8-13

 

Visitation Details Should Not Have Been Left to Supervising Agency

The Fourth Department determined Family Court erred by delegating its authority with respect to the visitation schedule and sibling visits to the agency supervising the mother’s visitation:

…[T]he court “erred in failing to set a supervised visitation schedule, implicitly leaving it to the supervisor to determine” … .  By ordering only that visitation “shall take place through the Catholic Charities Therapeutic Supervised Visitation program,” the court improperly delegated its authority to the supervising agency … .  We note in addition that the court erred in merely indicating that “access should include the child’s siblings, if that can be accommodated by the program.”  If the court determined that sibling visitation is indeed in the best interests of the child, the court should specify in its order that the agency or organization designated to supervise visitation must be able to accommodate sibling visits.  We therefore modify the order accordingly, and we remit the matter to Family Court to determine the access schedule and whether sibling visitation shall occur. Matter of Green v Bontzolakes, 1034, 4th Dept 11-8-13

 

Burden of Proof for Relocation with Child Not Met

In reversing Family Court, the Second Department determined there was not a sound and substantial basis for granting the mother’s request to return to South Africa with the couple’s child.  The court explained the analytical criteria for relocation:

A parent seeking to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child’s best interests … . In determining whether relocation is appropriate, the court must consider a number of factors, which include “each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements”… . In assessing these factors, “no single factor should be treated as dispositive or given such disproportionate weight as to predetermine the outcome” … . However, “the impact of the move on the relationship between the child and the noncustodial parent will remain a central concern” … . “In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child’s best interests” … .

… [T]he record is devoid of evidence that he has ever harmed the child or directed his anger toward her, and many of the incidents described by the mother involved the father’s suicidal ideation and infliction of harm upon himself. Significantly, the court-appointed psychologist found that the father was currently emotionally and mentally stable, and at low risk of neglectful or abusive behavior toward the child. Moreover, the record shows that the mother sought permission to relocate primarily because she feels lonely and isolated in the United States, and not to escape domestic violence … . The record also establishes that the father consistently exercises his right to visit the child twice a week, and that he desires to spend more time with her …. Further, there is no economic necessity for the proposed relocation because the mother has been steadily employed as a payroll analyst for more than six years.  Matter of Francis-Miller v Miller, 2013 NY Slip Op 07177, 2nd Dept 11-6-13

 

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Child Qualified as “Special Immigrant;” Abandoned by One Parent

In reversing Family Court, the Second Department determined the subject child, Brenda, qualified as a “special immigrant” who could apply for lawful permanent residency in the US because she had been abandoned by one (not both) of her parents:

Pursuant to 8 USC § 1101(a)(27)(J) (as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub L 110-457, 122 US Stat 5044) and 8 CFR 204.11, a “special immigrant” is a resident alien who, inter alia, is under 21 years of age, is unmarried, and has been legally committed to, or placed under the custody of, an individual appointed by a State or juvenile court. Additionally, for a juvenile to qualify for special immigrant juvenile status, 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 (see 8 USC § 1101[a][27][J][i]…), 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 (see 8 USC § 1101[a][27][J][ii]; 8 CFR 204.11[c][6]…).

Brenda is under the age of 21 and unmarried. Inasmuch as the Family Court placed Brenda under her mother’s custody, Brenda has been “legally committed to, or placed under the custody of . . . an individual or entity appointed by a State or juvenile court” within the meaning of 8 USC § 1101(a)(27)(J)(i)…). Based upon our independent factual review, we find that the record, which includes a detailed affidavit from Brenda, fully supports Brenda’s contention that, because her father neglected and abandoned her, reunification with her father is not a viable option … . Contrary to the Family Court’s determination, the fact that Brenda’s mother did not also neglect and abandon her does not preclude the issuance of the order requested … . Lastly, the record reflects that it would not be in Brenda’s best interests to be returned to El Salvador… .  Matter of Maria PEA v Sergio AGG, 2013 NY Slip Op 07168, 2nd Dept 11-6-13

For a similar case with the same result, see Matter of Karen C, 2013 NY Slip Op 07170, 2nd Dept 11-6-13

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Neglect Allegations Not Proven by Hearsay Testimony Based On Statements Made by Mother

The Third Department affirmed the dismissal of a neglect petition after a hearing where the only evidence was the hearsay testimony of the caseworker based on what the caseworker was told by the mother:

“To establish neglect, [a] petitioner must prove by a preponderance of the evidence that a child’s physical, mental or emotional condition was harmed or is in imminent danger of harm as a result of a failure on the part of the parent to exercise a minimum degree of care”… . At a fact-finding hearing, only “competent, material and relevant evidence” may be admitted (Family Ct Act § 1046 [b] [iii]…).Here, the only proof offered by petitioner was the testimony of its caseworker, who had no personal knowledge of the events that led to the filing of the petition.  Rather, the caseworker’s testimony concerning the alleged acts constituting neglect consisted entirely of what he was purportedly told by the mother.  Upon our review of the record and notwithstanding the absence of any contrary testimony, we discern no error in Family Court’s determination that the testimony of the caseworker was insufficient to sustain petitioner’s burden of proof… .  Matter of Lydia DD…, 515237, 3rd Dept 10-31-13

 

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Abuse Was Not Demonstrated; Non-Testifying Child’s Out-Court-Statements Not Corroborated by Witnesses Who Testified About What the Child Told Them

The Third Department affirmed Family Court’s determination that the petitioner had not met its burden of proof that respondent had abused a child (Kaelynn).  The child did not testify and petitioner relied entirely on the testimony of four people to whom the child had disclosed abuse, and the observations of the child’s demeanor during the disclosures. No medical proof was submitted.  In finding the out-of-court allegations made by the child had not been corroborated, the court explained:

…[T]he record contains insufficient evidence to corroborate Kaelynn’s allegations.  Significantly here, a child’s uncorroborated unsworn allegations of abuse alone are insufficient to sustain a finding of abuse (see Family Ct Act § 1046 [a] [vi]) and, although “a child’s out-of-court statement ‘may be corroborated by any evidence tending to support its reliability, and a relatively low degree of corroborative evidence is sufficient in abuse proceedings'” …, there is “a threshold of reliability that the evidence must meet” … .  “Whether this corroboration requirement has been satisfied is a ‘fine judgment’ entrusted in the first instance to Family Court, which has the advantage of having heard and seen the various witnesses” … .

Under established law, Kaelynn’s repetition of the allegations of abuse to the testifying witnesses, however consistent and believable, is not sufficient to corroborate these prior out-of-court statements … .  Petitioner presented no expert testimony to “objectively validate [Kaelynn’s] account” or to “relate[] any of her past or present conduct or characteristics to the alleged sexual abuse” … .  While a police investigator who interviewed Kaelynn testified that he conducted a “truth versus lie” inquiry of her and concluded that she understood the consequences of lying, he did not explain his methodology for reaching this conclusion nor did he relate whether her account fit any profile for truthful testimony from abused children … .  Moreover, there was no physical evidence of sexual abuse …, and Kaelynn – in light of her young age — did not give sworn testimony nor was she questioned in camera … . Matter of Dezarea T …, 514693, 3rd Dept 10-31-13

 

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Abuse Not Demonstrated; Conflicting Expert Testimony

In upholding Family Court’s determination that petitioner had not demonstrated the child (Sincerity) was abused when the child was in the custody of the mother, in the face of expert testimony the child suffered forceful blunt trauma within 24 hours of death, the Second Department explained:

The Family Court Act defines an “[a]bused child,” inter alia, as “a child less than eighteen years of age whose parent or other person legally responsible for his [or her] care (i) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death [or] (ii) creates or allows to be created a substantial risk of physical injury to such child by other than accidental means which would be likely to cause death” (Family Ct Act § 1012[e][i], [ii]). The petitioner may establish a prima facie case of abuse through a method of proof “closely analogous to the negligence rule of res ipsa loquitur” (…see Family Ct Act § 1046[a][ii]…). If the petitioner establishes a prima facie case of abuse, “the burden of going forward shifts to respondents to rebut the evidence of parental culpability,” although the burden of proof always remains with the petitioner … .

The Family Court’s assessment of witnesses’ credibility is accorded deference and will not be disturbed unless clearly unsupported by the record … . Where there is conflicting testimony and the matter primarily turns on an assessment of witnesses’ credibility, we accord great weight to the Family Court’s factual findings … . * * *

The mother’s expert witness, the forensic pathologist who conducted the autopsy on Sincerity’s body, testified that based upon a microscopic examination of the brain injury, Sincerity sustained the brain injury a few days to one week prior to her death. Notably, the petitioner did not present evidence establishing that Sincerity was exclusively in the mother’s care for a period of time greater than 24 hours before her death. Moreover, the forensic pathologist testified that she could not determine whether Sincerity died from blunt force trauma to the head or by accidental asphyxiation caused by being placed to sleep on her side and wrapped in a blanket on the mother’s futon. Matter of David T…, 2013 NY Slip Op 07049, 2nd Dept 10-30-13

 

In Court Stipulation Was Valid Postnuptial Agreement; DRL 236(B)(3) Did Not Apply

In affirming Supreme Court’s determination that a stipulation/postnuptial agreement, which was not signed in open court, was not invalidated by Domestic Relations Law 236, the Second Department explained:

…[T]he Supreme Court properly determined that the postnuptial agreement was valid and that Domestic Relations Law § 236(B)(3) does not compel a different result. “An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded” (Domestic Relations Law § 236[B][3]). A written agreement between parties made before or during a marriage which does not meet the formalities of Domestic Relations Law § 236(B)(3) is not enforceable … . However, Domestic Relations Law § 236(B)(3) “applies only to agreements entered into outside the context of a pending judicial proceeding”… . Moreover, “[s]tipulations of settlement are favored by the courts and are not lightly cast aside” … . Thus, “[a]n agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered” (CPLR 2104…).

Here, the record established that the parties relied on the duly executed stipulation of settlement, which was denominated as the postnuptial agreement, as a means of resolving the respondent’s prior divorce action. It is undisputed that the postnuptial agreement was executed while the respondent’s action was pending before the Supreme Court … . … Accordingly, the postnuptial agreement was valid, as it “was executed in the context of a pending divorce proceeding, and was subject to judicial oversight, even though it was not signed in open court” … . Rio v Rio, 1013 NY Slip Op 07023, 2nd Dept 10-30-13

 

Relocation Criteria Explained

In affirming the grant of father’s petition to relocate with the child, the Third Department explained the criteria:

The party seeking to relocate with a child – here, the father – bears the burden of establishing by a preponderance of the credible evidence that the relocation is in the child’s best interests … .  Family Court must consider a number of relevant factors in making this determination, including “‘each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child’s future contact with the [nonmoving] parent, the degree to which the [moving] parent’s and child’s life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the [non-moving] parent and child through suitable visitation arrangements'” … .  Notably, as “Family Court is in the best position to make factual findings and credibility determinations, its decision will not be disturbed if it is supported by a sound and substantial basis in the record” … .  Matter of Cole v Reynolds, 514712, 3rd Dept 10-24-13

 

Sex Offender Status Not Enough to Support Neglect Finding

The Third Department reversed Supreme Court’s finding of neglect against respondent mother for leaving the children with the father unsupervised.  The father was a sex offender who failed to complete sex offender treatment and was previously found to have neglected the children by Supreme Court on that and other grounds.  In the prior appeal of the father’s neglect finding, the Third Department reversed Supreme Court and determined the father’s status as a sex offender was insufficient to support a finding he neglected the children and the other factors relied upon by the court lacked a sound and substantial basis in the record.  Because of those prior rulings, a finding of neglect against the mother based on leaving the children unsupervised with the father had to be reversed:

Inasmuch as the finding of neglect against respondent was premised on her permitting the father to have unsupervised contact with the children, it would be completely illogical to conclude that the subject children’s “physical, mental or emotional condition [had] been impaired or [was] in imminent danger of becoming impaired as a result of the failure of [respondent] . . . to exercise a minimum degree of care . . . in providing the child[ren] with proper supervision or guardianship” (Family Ct Act § 1012 [f] [i] [B]), when we previously determined that petitioner failed to prove that the father posed a risk of imminent danger to them (Matter of Hannah U. [Dennis U.], 97 AD3d at 909).  Thus, for the same reasons that led us to reverse the finding of neglect as to the father, we similarly conclude that petitioner failed to prove by a preponderance of the evidence (see Family Ct Act § 1046 [b] [i]) that respondent neglected the subject children as alleged in the petition … .  Matter of Hannah U …, 514024, 3rd Dept 10-24-13

 

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