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Mother Demonstrated Relocation to Mississippi Was In Best Interest of Child, Job and Family Support Available

In a full-fledged opinion by Justice Saxe, the First Department reversed Family Court and granted the mother’s petition for relocation with the couple’s child to Mississippi.  The mother’s inability to find sufficient work in New York, after several years of effort, coupled with job offers in Mississippi and the support of grandparents in Mississippi, were important factors:

In this relocation case, where respondent mother, Elizabeth E., seeks permission to move with the parties’ child to Oxford, Mississippi, we are once again confronted with the problem of balancing a child’s need for the ongoing presence of both parents in his daily life, with the custodial parent’s proven inability to support herself and the child beyond the subsistence level here in New York. * * *

Admittedly, the mother here is not (yet) destitute. Her financial situation is certainly not as bleak as that of the mother in Matter of Melissa Marie G. v John Christopher W. (73 AD3d 658, 658 [1st Dept 2010]), where this Court affirmed the grant of the mother’s application to relocate with the parties’ child to a stable home near the mother’s family in Florida, after she and the child had lived in a series of homeless shelters. However, while the need to improve the mother’s and child’s economic situation was far more extreme in that case, we find that the present relocation application was prompted by a legitimate, pressing need for a secure economic situation. Not only do we reject the unsupported suggestion that the mother actually had other, hidden, means of support, but we observe that proof of economic necessity does not require the parent to wait until she has used up every last dollar of her savings before taking steps to ensure that she will be able to care for the child’s future economic needs. Matter of Kevin McK v Elizabeth AE, 2013 NY Slip Op 06328, 1st Dept 10-1-13

 

Proof Requirements Re: Whether An Account Is Entirely Marital Property Explained

The Fourth Department explained the proof requirements where the defendant claimed the entire amount in a deferred compensation account should not have been deemed marital property:

According to defendant, the court improperly presumed that all of the funds in that account accumulated during the marriage, and he therefore contends that we should remit the matter to Supreme Court to determine the “marital share” of that account as distinguished from his “separate property share.”  There is no merit to that contention. Pursuant to a statutory presumption, “all property, unless clearly separate, is deemed marital property,” and the burden rests with the titled spouse to rebut that presumption … . Domestic Relations Law § 236 [B] [1] [c]; [d]).  “The party seeking to rebut that presumption must adequately trace the source of the funds” …; otherwise, the court may properly treat the funds as marital property … .  Here, it does not appear from the record that defendant offered any evidence establishing the amounts he contributed to his deferred compensation account before or during the marriage. Thus, he failed to meet his burden of establishing that any of the funds in that account are separate property, and we therefore conclude that the court properly presumed that the entire account constitutes marital property subject to equitable distribution. Zufall v Zufall, 887, 4th Dept 9-27-13

 

Doctrine of Equitable Estoppel Does Not Apply When Biological Mother Opposes Paternity Petition

In affirming Family Court’s dismissal of a paternity petition, the Fourth Department explained that the doctrine of equitable estoppel, urged to bar the mother from denying petitioner is the father of the child, did not apply:

“[T]he Court of Appeals has recently reiterated that a nonbiological, nonadoptive parent does not have standing to seek visitation when a biological parent who is fit opposes it, and that equitable estoppel does not apply in such situations even where the nonparent has enjoyed a close relationship with the child and exercised some control over the child with the parent’s consent” … .  It is well settled “that parentage under New York law derives from biology or adoption” …, and that “Alison D., in conjunction with second-parent adoption, creates a bright-line rule that promotes certainty in [custody situations] otherwise fraught with the risk of ‘disruptive . . . battles’ . . . over parentage as a prelude to further potential combat over custody and visitation” … .  As the Court of Appeals has stated, “any change in the meaning of ‘parent’ under our law should come by way of legislative enactment rather than judicial revamping of precedent” … .  Matter of White v Wilcox, 903, 4th Dept 9-27-13

 

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Cognizable Counterclaim for Breach of Domestic Partnership Stated

In finding defendant had stated a legally cognizable counterclaim for breach of a domestic partnership agreement, the Fourth Department explained:

With respect to domestic partnership agreements, “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’ ” … .  Additionally, there is no statutory requirement that such a contract be in writing … .  We conclude that here defendant sufficiently pleaded counterclaims for breach of a domestic partnership agreement and that the court therefore erred in dismissing the fourth and fifth counterclaims … . Ramos v Hughes, 866, 4th Dept 9-27-13

 

Neglect Finding Based on Children’s Exposure to Bloody Domestic Violence Affirmed’ Requirements for Admission of Police Reports Explained

In affirming Family Court’s finding of neglect based upon the children’s exposure to bloody violence involving the mother and her boyfriend, the Fourth Department noted that police reports should not have been admitted in evidence because they were not properly certified:

The mother correctly contends that Family Court erred in admitting police records in evidence inasmuch as the certification attached to those records failed to comply with Family Court Act § 1046 (a) (iv).  That statute provides that where, as here, a certification is completed by a “responsible employee” rather than the head of an agency, the certification “shall be accompanied by a photocopy of a delegation of authority signed by both the head of the . . . agency and by such other employee” (emphasis added).  The language of the statute is mandatory, and it is undisputed that “the requisite delegation of authority to [the employee] was lacking” … .  We must therefore “find the admission of these records to have been in error if we are to give effect to the clear and unambiguous intention of the [l]egislature”… . Matter of Kadyn J…, 929, 4th Dept 9-27-13

 

Criteria for Suspension of Judgment in Neglect Proceeding

In reversing Family Court, the Second Department explained the criteria for a suspension of judgment in a permanent neglect proceeding:

A dispositional order suspending judgment is a dispositional alternative, upon a finding of permanent neglect, that affords “a brief grace period designed to prepare the parent to be reunited with the child” … . In essence, an order suspending judgment provides the parent with a second chance, but it may be utilized only when the court determines that a second chance is in the child’s best interests (see Family Ct Act §§ 631, 633…). Moreover, the maximum duration of a suspended judgment is one year, unless the court finds at the conclusion of that period that “exceptional circumstances” require an extension of that period for one additional period of up to one year (Family Ct Act § 633[b]…). * * *

Family Court Act § 633© provides that an order suspending judgment “must set forth the . . . terms and conditions of the suspended judgment” (see also 22 NYCRR 205.50[b]) so that the Family Court may determine whether the parent has violated it … . Matter of Jesse D…, 2013 NY slip Op 06001, 2nd Dept 9-25-13

 

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Husband’s Contribution to Purchase of Home by Wife’s Parents Constituted a Constructive Trust

In a divorce action, the Second Department affirmed Supreme Court’s determination that the husband’s [Henn’s] contribution toward the purchase of a house constituted a constructive trust.  The parties separated before Henn moved into the home.  The wife’s [Tyree’s] parents [the Raffas] contributed some money and purchased the home for Henn and Tyree, both of whom also contributed funds toward the purchase.  In concluding Henn’s contribution constituted a constructive trust, the court wrote:

Here, the Supreme Court correctly found that the first element relevant to imposing a constructive trust was satisfied, as Henn and the Raffas were related through marriage and they pooled their resources to purchase the subject premises … . Henn satisfied the second element by demonstrating that the Raffas implicitly promised to convey the premises to him and Tyree … . He satisfied the third element, which requires a showing that he acted in reliance on the promise, by establishing that he gave $58,500 to Samuel J. Raffa, and that Samuel J. Raffa used that money to purchase the premises … . As for the fourth element, which requires a showing of unjust enrichment flowing from the breach of the promise, the evidence adduced at trial established that Henn never moved into the premises or acquired a legal interest therein. To the contrary, he and Tyree separated the very month that the premises were acquired by the Raffas, and Tyree commenced this divorce action just a few months later. The Raffas remained the sole owners of the premises, and they did not return Henn’s $58,500. In view of this evidence, there is no basis upon which to disturb the Supreme Court’s determination… . Tyree v Henn, 2013 NY Slip Op 05895, 2nd Dept 9-18-13

 

Determination of Paternity Not in Child’s Best Interest; Mother Equitably Estopped from Seeking Paternity Determination

The Second Department determined a genetic marker test to determine appellant’s paternity was not in the best interest of the child and the mother was equitably estopped form asserting appellant’s paternity.  The appellant had not been part of the 16-year-old child’s life since the child was 18 months old and the mother had failed to appear in a paternity proceeding instituted when the child was 8 months old:

…[I]in appropriate circumstances, the doctrine of equitable estoppel may be asserted defensively by a purported biological father to prevent a child’s mother from asserting biological paternity where a genetic marker test would not be in the best interests of the child … . Here, the Family Court improvidently rejected the appellant’s equitable defense. An adverse inference may be taken against the mother for her failure to appear for the court-ordered genetic marker test in 1999, and her failure to pursue that proceeding … . Thereafter, the mother failed to commence a new proceeding for 13 years, during which time the subject child had no relationship with the appellant and lived with the mother, her current husband, and his half-siblings on the mother’s side. Accordingly, a genetic marker test is not in the best interests of the subject child, on the ground that the mother is equitably estopped from asserting the appellant’s biological paternity (see Family Ct Act § 532[a]…). Matter of Karen G v Thomas G, 2013 NY Slip Op 05901, 2nd Dept 9-18-13

 

Motion to Suspend Child Support Properly Denied; Criteria Explained

In affirming Supreme Court’s denial of plaintiff’s motion to suspend child support, the Second Department explained the criteria for early suspension of the child support obligation:

Generally, parents have a statutory duty to continually support their children until they reach 21 years of age (see Family Ct Act § 413[1][a]…). ” However, where the noncustodial parent establishes that his or her right of reasonable access to the child has been unjustifiably frustrated by the custodial parent, child support payments may be suspended'” … .

Here, contrary to the plaintiff’s contention, the Supreme Court properly denied, without a hearing, that branch of his motion which was to suspend his obligation to pay child support. The plaintiff alleges continuing conduct on the part of the defendant which, if proven, would not “rise to the level of deliberate frustration’ or active interference’ with the noncustodial parent’s visitation rights”… . Jones v Jones, 2013 NY Slip Op 05879, 2nd Dept 9-18-13

 

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Relationship of Prenuptial Agreement to Temporary Maintenance and Award of Attorneys Fees

The Second Department determined that temporary maintenance was not properly granted in light of the facts (where the prenuptial agreement did not expressly deal with the topic) and legal fees in excess of the limit in the prenuptial agreement were properly granted.  The court explained the relevant analyses as follows:

“As with all contracts, prenuptial agreements are construed in accord with the parties’ intent, which is generally gleaned from what is expressed in their writing” …. “Where a prenuptial agreement is clear and unambiguous on its face, the intent of the parties is gleaned from the four corners of the writing as a whole with a practical interpretation of the language employed so that the parties’ reasonable expectations are met” … .

Contrary to the plaintiff’s contention, the parties’ prenuptial agreement did not expressly preclude an award of temporary maintenance pendente lite, nor did the defendant expressly waive such an award under the terms of the agreement… .   On the record presented, including evidence of the defendant’s expenses, the defendant’s reasonable needs were more than adequately met. Accordingly, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in directing the plaintiff to pay temporary maintenance in the sum of $1,000 per month… . * * *

Supreme Court properly awarded the defendant interim counsel fees, notwithstanding a provision in the prenuptial agreement limiting, to the sum of $10,000, the plaintiff’s obligation to pay such fees incurred by the defendant in any divorce action. Because of a strong public policy favoring the resolution of matrimonial matters on a level playing field …, the determination of whether to enforce an agreement waiving the right of either spouse to seek an award of an attorney’s fee is to be made “on a case-by-case basis after weighing the competing public policy interests in light of all relevant facts and circumstances both at the time the agreement was entered and at the time it is to be enforced” … . Here, the parties are involved in extensive litigation concerning child custody, a matter not expressly addressed in their prenuptial agreement. Moreover, the plaintiff’s net worth is more than $13 million and his monthly gross income exceeds $45,000, while the defendant has no income other than what she is receiving pursuant to the agreement. Abramson v Gavares, 2013 NY Slip Op 05861, 2nd Dept 9-18-13

 

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