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No Sound Basis for Family Court’s Determination Shared Custody Was Appropriate

The Third Department determined there was not a sound basis for Family Court’s determination that shared custody was appropriate

…[N]either party appears to have requested such relief, and the parties’ testimony at the fact-finding hearing was replete with mutual allegations of domestic violence and poor communication, as well as descriptions of vastly differing parenting styles. Moreover, although not a determinative factor, we note the absence in the court’s decision of any discussion concerning the wishes or preferences of the children, both of whom are in their teens, even though this factor should be “entitled to great weight” … .   Nor is there any discussion addressing the difficulties in a shared custody arrangement raised by the testimony concerning the son’s alleged preference to live in the mother’s home.  Additionally, while the court specifically found that there was some evidence that the father “does not fully understand or appreciate the daughter’s dietary needs and her medical issues,” it was not explained how this concern would be met by the alternating physical custody schedule set forth in the decision.  Given these and other concerns raised by the parties’ testimony, we deem it appropriate to remit the matter to Family Court for a determination of primary physical custody of the children, accompanied by appropriate findings detailing the facts essential to such decision… . Matter of Glenna Y…, 514558, 3rd Dept 10-17-13

 

Custody Petition by Maternal Grandmother Denied in Favor of Child’s Mother

In affirming the denial of custody to petitioner, the maternal grandmother, in favor of the child’s mother, the Third Department explained the relevant criteria:

“‘[A] biological parent has a claim of custody of his or her child, superior to that of all others, in the absence of surrender, abandonment, persistent neglect, unfitness, disruption of custody over an extended period of time or other extraordinary circumstances'” … .  Significantly, the nonparent seeking custody bears a heavy burden of establishing the existence of extraordinary circumstances … .

Persistent neglect will be found where the parent “has failed either to maintain substantial, repeated and continuous contact with a child or to plan for the child’s future” … . While relinquishing care and control of a child for a continuous period of 24 months will be considered an extraordinary circumstance (see Domestic Relations Law § 72 [2]…), petitioner concedes that no such period of separation occurred here … .  Although the child had visits with petitioner that lasted multiple weeks and, on at least one occasion, three months, the record does not reflect a prolonged period of separation or “a complete abdication of parental rights and responsibilities”… . Matter of Mildred PP v Samantha QQ, 514416, 3rd Dept 10-17-13

 

Imputed Income, As Opposed to Actual Income, Used to Determine Mother’s Contribution to College Costs

The Third Department used imputed income to determine mother’s ability to contribute to the children’s college education:

In determining child support or related expenses, a court may impute income to a parent based on that party’s failure to seek more lucrative employment that is consistent with his or her education, skills and experience … .  Imputed income more accurately reflects a party’s earning capacity and, presumably, his or her ability to pay … .  Thus, imputed income may be attributed to a party as long as the court articulates the basis for imputation and record evidence supports the calculations … .

Here, Family Court accepted the mother’s income as $15,000, without imputing any income to her.  She testified that she earned approximately that amount at her part-time job as a tax preparer, but acknowledged that she has a Bachelor’s degree in accounting and could work full time, yet chooses to work reduced hours out of loyalty to her employer.  Because we are basing the college expenses on the parties’ ability to pay rather than their actual income, we will impute income to the mother based on her underemployment and ability to earn more ,,, .  Using the mother’s testimony that she earned approximately $15,000 working full time from January through April and two days per week for the remainder of the year, we can extrapolate a full-time salary for her at the same earning rate, resulting in an imputed income of $25,000.   Matter of Curley…, 514294, 3rd Dept 10-17-13

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Parental Rights Termination Based Upon Mental Illness Reversed—Psychologist’s Report Included Inadmissible Hearsay

The Third Department reversed Family Court’s determination that mother’s parental rights should be terminated based upon her mental illness. The psychologist’s (Liotta’s) report, upon which Family Court based its ruling, should not have been admitted in evidence because it included inadmissible hearsay:

Pursuant to the professional reliability exception to the hearsay rule, an expert witness may rely on information that would otherwise constitute inadmissible hearsay “if it is of a kind accepted in the profession as reliable in forming a professional opinion or if it comes from a witness subject to full cross-examination on the trial” … .  While some of the individuals with whom Liotta spoke testified during the hearing and were thus subject to cross-examination, several others did not.  Liotta was not asked and offered no opinion as to whether the information he gleaned from the interviews with individuals who did not testify was professionally accepted as reliable in performing mental health evaluations.  Respondent objected on hearsay grounds to Liotta’s testimony about these interviews and to the admission of his report – which contained detailed accounts of each interview – but the court overruled these objections.  Moreover, when respondent’s counsel sought to ask about the effect of the collateral source interviews on his opinions, the court precluded him from doing so.  As a result, no proper foundation was laid for the admission of Liotta’s testimony or his report… . Matter of Dakota F …, 513066, 3rd Dept 10-17-13

 

Resort to Contempt for Failure to Make Payments Appropriate

In finding the resort to contempt for failure to make payments pursuant to a judgment in a matrimonial action was appropriate, the Second Department explained the criteria:

Pursuant to Domestic Relations Law § 245, where a spouse fails to make payments of money pursuant to an order or judgment entered in a matrimonial action, the aggrieved spouse may apply to the court to punish the defaulting spouse for contempt, but only if “it appears presumptively, to the satisfaction of the court,” that payment cannot be enforced by other means such as enforcement of a money judgment or an income execution order (Domestic Relations Law § 245…). In order to punish the defaulting spouse for contempt, the aggrieved spouse is not required to exhaust all alternative remedies; proof that alternative remedies would be ineffectual is sufficient … . Here, the defendant satisfied that burden… . Longman v Longman, 2013 NY Slip Op 06664, 2nd Dept 10-16-13

 

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In a Sexual Abuse Proceeding—Effects of Victim’s Exercise of Privilege Against Self-Incrimination and Exclusion of Appellant During Testimony of Victim Explained

In a sexual abuse case, the Second Department affirmed Family Court’s finding of abuse and noted the effect of Judith C.Z.’s exercise of her privilege against self-incrimination and the effect of the appellant’s exclusion from the courtroom during the testimony Judith C. Z.:

The failure of [a witness] to testify does not permit the trier of fact to speculate about what his [or her] testimony might have been nor does it require an adverse inference. It does, however, allow the trier of fact to draw the strongest inference against him [or her] that the opposing evidence in the record permits” … . Under the circumstances presented here, we find no basis to disturb the Family Court’s refusal to draw the negative inference urged by the appellant … .

The appellant’s further contention that the Family Court erred in excluding him from the courtroom during the testimony of Judith C. Z. is without merit. The Family Court reasonably concluded that Judith C. Z. would suffer emotional trauma if compelled to testify in front of the appellant …, and, after properly weighing the respective rights and interests of the parties, thereafter providently exercised its discretion in permitting her to testify via a two-way closed-circuit television set-up. “Because the appellant’s attorney was present during the child’s testimony and cross-examined her on the appellant’s behalf, neither the appellant’s due process right nor his Sixth Amendment right of confrontation was violated by his exclusion from the courtroom during the child’s testimony” … .  Matter of Michael U…, 2013 NY Slip Op 06583, 2nd Dept 10-9-13

 

Dispositional Hearing Should Have Been Held After Neglect Finding

In a neglect proceeding, the Second Department noted a dispositional hearing was required before entering a dispositional order:

…Family Court erred in issuing the orders of disposition without first conducting a dispositional hearing (see Family Ct Act §§ 1045, 1047[a], 1052[a]…). “A dispositional hearing must be held as a condition precedent to the entry of a dispositional order” … . “A dispositional hearing is required so as to permit the Family Court to make an informed determination, from amongst the dispositional alternatives, which is consistent with the best interests of the . . . children” … . At a dispositional hearing, “due process requires that the parties be provided an adequate opportunity to offer evidence” (…see Family Ct Act § 1011). Here, the Family Court did not allow the mother to testify, failed to adduce any evidence from the father, to whom it released two of the children, and conducted no inquiry into dispositional alternatives before making its determination.  Matter of Monique M, 2013 NY Slip Op 06577, 2nd Dept 10-9-13

 

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Separation Agreement Found Unconscionable

The Fourth Department affirmed Supreme Court’s vacation of a separation agreement finding insufficient evidence the agreement was signed under duress but determining the terms of the agreement were unconscionable:

“ ‘Judicial review [of separation agreements] is to be exercised circumspectly, sparingly and with a persisting view to the encouragement of parties settling their own differences in connection with the negotiation of property settlement provisions’ ” … . “[S]eparation agreements will be scrutinized ‘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’ ” … .  “A separation agreement ‘may be vacated if it is manifestly unfair to one party because of the other’s overreaching or where its terms are unconscionable’ ” … .

We agree with defendant that plaintiff did not sign the agreement under duress.  Plaintiff’s allegations that defendant threatened to evict her from the marital residence if she did not sign the agreement and that he threw the agreement at her are not substantiated by proof sufficient to justify setting it aside … .  Further, even accepting plaintiff’s allegation that defendant persistently urged her to sign the agreement, such conduct does not constitute duress, particularly inasmuch as plaintiff signed the agreement after defendant revised it in accordance with her suggested changes.

We conclude, however, that the court properly determined that the agreement was “ ‘one such as no [person] in his [or her] senses and not under delusion would make on the one hand, and as no honest and fair [person] would accept on the other’ ” … .  As defendant correctly concedes, the agreement gives him almost all of the marital property, including his pension and retirement assets, and we note that the value of the pension and retirement assets is not apparent from the record because defendant failed to include a copy of his net worth statement.  The agreement further provides that plaintiff may not seek maintenance and, most troubling under the circumstances of this case, that plaintiff waived her right to seek child support. Dawes v Dawes, 886, 4th Dept 10-4-13

 

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ATTORNEY FOR THE SEVERELY DISABLED CHILD COULD CONTINUE TO MAKE FOSTER CARE AND MEDICAL CARE DECISIONS FOR THE CHILD AFTER THE CHILD’S EIGHTEENTH BIRTHDAY, APPOINTMENT OF A GUARDIAN IS UNNECESSARY (SECOND DEPT).

The Second Department, reversing Family Court, determined the attorney for a child with Down syndrome and profound disabilities could continue to make medical and foster care decisions for the child after the child turned 18. Therefore, Family Court’s sua sponte appointment of a guardian was unnecessary:

We disagree with the Family Court’s determination to deny the child’s motion to relieve the guardian ad litem. Family Court Act §§ 1016, 1087, and 1090(a), and 22 NYCRR 7.2(d)(3), read in conjunction with each other, authorize the attorney for the child to represent the child’s interests in this matter, substitute its judgment for that of the child, and provide consent for the child to remain in foster care, thereby rendering the appointment of a guardian ad litem unnecessary … . Matter of Elliot Z. (Joseph Z.), 2018 NY Slip Op 06547, Second Dept 10-3-18

FAMILY LAW (ATTORNEY FOR THE SEVERELY DISABLED CHILD COULD CONTINUE TO MAKE FOSTER CARE AND MEDICAL CARE DECISIONS FOR THE CHILD AFTER THE CHILD’S EIGHTEENTH BIRTHDAY, APPOINTMENT OF A GUARDIAN IS UNNECESSARY (SECOND DEPT))/ATTORNEYS (FAMILY LAW, ATTORNEY FOR THE SEVERELY DISABLED CHILD COULD CONTINUE TO MAKE FOSTER CARE AND MEDICAL CARE DECISIONS FOR THE CHILD AFTER THE CHILD’S EIGHTEENTH BIRTHDAY, APPOINTMENT OF A GUARDIAN IS UNNECESSARY (SECOND DEPT))/GUARDIANS (FAMILY LAW, ATTORNEY FOR THE SEVERELY DISABLED CHILD COULD CONTINUE TO MAKE FOSTER CARE AND MEDICAL CARE DECISIONS FOR THE CHILD AFTER THE CHILD’S EIGHTEENTH BIRTHDAY, APPOINTMENT OF A GUARDIAN IS UNNECESSARY (SECOND DEPT))

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Wife’s Encumbrance of Marital Property in Violation of Court Order and Knowledge of the Court Order by Mortgage-Holder’s Agent Precluded Payout to Mortgage-Holder from Surplus Foreclosure Sale Proceeds

The Second Department determined the holder of a mortgage (Marie Holdings), which was undertaken by the wife in violation of the matrimonial court’s order not to encumber the marital residence, was not entitled to any of the surplus proceeds after a foreclosure sale of the property.  The facts that the wife violated the matrimonial court’s order and the attorney who was the agent for the mortgage holder knew of the court-order were determinative:

“The surplus funds of a foreclosure sale stand in the place of the land for all purposes of distribution among persons having vested interests or liens upon the land” … . Accordingly, “[s]urplus money takes the place of the equity of redemption and only one who had a vested estate or interest in the land sold under foreclosure which was cut off by the foreclosure sale is entitled to share in the surplus money with priority in each creditor determined by the filing date of his lien or judgment” … . * * *

Contrary to Marie Holdings’ contention, the matrimonial court had authority to determine that the husband was entitled to the surplus funds as part of the equitable distribution of the marital property … . Thus, notwithstanding the secured interest Marie Holdings acquired in the marital home by virtue of the mortgage the wife gave to it, because the wife undertook the mortgage in violation of the restraining order … , and because Marie Holdings’ agent knew or should have known of the restraining order, its interest in the surplus funds was properly limited to the wife’s interest therein … . The matrimonial court, in its discretion, divested the wife of that interest based upon her conduct. Emigrant Mtge Co Inc v Biggio, 2013 NY slip Op 06344, 2nd Dept 10-2-13

 

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