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Failure to Contest Referral of Support-Arrearages to Tax Department Precluded Further Court Action

The Third Department determined plaintiff’s failure to administratively challenge the referral of his support-arrearages case to the Department of Taxation and Finance and the subsequent issuance of a tax warrant (pursuant to provisions of the Social Services Law) barred his action against the Department in Supreme Court.  Plaintiff was seeking a declaratory judgment and injunctive relief after the Department seized his vehicles to satisfy the judgment for support arrearages.  Koziol v State of New York…, 514767, 3rd Dept, 6-6-13

 

Wife Deemed Not Entitled to Maintenance

In reversing Supreme Court and determining the wife was not entitled to maintenance, the Third Department wrote:

While “[t]he amount and duration of [a maintenance] award are addressed to the sound  discretion of the trial court” (…see Domestic  Relations Law  §  236  [B] [6] [a]), “this Court’s authority is as broad as Supreme  Court’s in resolving questions of maintenance”….  Accordingly, we  find that under  the circumstances of this case – where  the marriage was not of particularly long duration, the parties had no  children, the wife has stable employment  that provides her a significant salary, the  wife  is not  losing  retirement  or  health benefits and  the parties’ predivorce standard of living was falsely inflated by  overextended lines of credit – the statutory factors do  not support an  award  of maintenance  (see Domestic Relations Law  §  236  [B] [6] [a] [1]-[20]…).  McCaffrey v McCaffrey, 515718, 3rd Dept, 6-6-13

 

Appreciation of Value of Marital Residence Should Have Been Reduced by Cost of Improvements

The Second Department determined Supreme Court should have reduced the distributive award based upon the appreciation in value of the marital residence during the marriage by the equitable share of the marital debt incurred in making improvements to the residence:

While the marital residence was the plaintiff’s separate property, the Supreme Court directed the plaintiff to pay the defendant the sum of $102,500 as a distributive award based on the appreciation in value of the marital residence that was attributable to the efforts of both parties in physically improving the property during the marriage (see Domestic Relations Law § 236[B][1][d][3]…). Although the defendant’s counsel noted at trial that the defendant’s distributive award based on the appreciation of the marital residence should be reduced by the defendant’s equitable share of the marital debt incurred in financing the improvements to the residence, the Supreme Court improperly failed to do so… . Szewczuk v Szewczuk, 2013 NY Slip Op 03987, 2nd Dept, 6-5-13

 

“Economic Necessity” Justified Relocation

The Second Department determined the mother’s relocation was in the best interests of the child based upon “economic necessity:”

“[E]conomic necessity . . . may present a particularly persuasive ground for permitting the proposed move”… .. Here, the mother demonstrated that she was not able to meet her living expenses while residing in Queens, and the father conceded that he did not regularly pay his share of the childcare expenses. The mother also demonstrated that, if she were permitted to relocate, her mother would assist with the childcare and that she and the child would be able to reside, at a reduced rent, in her mother’s home, located only blocks from where the child would attend school. While the father’s loss of weekly weekday contact with the child is neither trivial nor insignificant…, the relocation is not a great distance and the visitation schedule devised by the court in this case allows for the continuation of a meaningful relationship between the father and the child… . Matter of Sahagun v Alix, 2013 NY Slip Op 04009, 2nd Dept, 6-5-13

 

Family Court Award of Sole Custody to Mother Reversed, Sole Custody Awarded to Father

The Second Department reversed Family Court, which awarded sole physical custody to the mother, and awarded sole physical custody to the father:

Here, the Family Court’s award of sole physical custody to the mother lacked a sound and substantial basis in the record. In awarding the mother custody, the Family Court gave undue weight to its finding that the mother would be more likely than the father to foster a meaningful relationship between the subject children and the noncustodial parent. Furthermore, the Family Court failed to give sufficient weight to the forensic mental health evaluation, which indicated that the mother was not suitable for physical custody of the children and to its own finding that it was in the children’s best interests for them to remain away from Sherlock [the mother’s boyfriend] at all times. Under the totality of the circumstances, including the founded concerns with respect to Sherlock and the attendant risk his relationship with the mother posed to the safety and well-being of the subject children, the best interests of the children would be served by awarding the father sole physical custody ….Matter of James AS v Cassandra AS, 2013 NY Slip Op 03995, 2nd Dept, 6-5-13

 

No Basis in Record for Denying Noncustodial Parent Visitation

After affirming a derivative neglect finding against the mother based upon excessive corporal punishment of a sibling, the Second Department determined Family Court should not have denied her visitation:

Absent extraordinary circumstances, such as where visitation would be detrimental to the child’s well-being, a noncustodial parent has a right to reasonable visitation privileges… . Here, the Family Court improvidently exercised its discretion in failing to provide the mother with any visitation, either unsupervised or supervised, with Keith W., since there were no extraordinary circumstances justifying the denial of the mother’s right to reasonable visitation… .  Matter of Jacob P, 2013 NY Slip Op 04007, 2nd Dept, 6-5-13

 

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Family Court Has Power to Issue Judgment for Child Support Arrearages

After Family Court ruled it did not have jurisdiction to issue a judgment for child support arrearages, the Third Department determined that the court did in fact have jurisdiction.   In a full-fledged opinion by Justice Peters, the Third Department wrote:

While “Family Court is a court of limited jurisdiction, constrained to exercise only those powers granted to it by the State Constitution or by statute” …, it is empowered “to determine applications to modify or enforce judgments and orders of support” … .In that regard, petitioner [child support collection unit] is authorized to commence violation proceedings “on behalf of persons” who receive child support pursuant to a court order … .  *  *  *

Petitioner thus acted well within its statutory authority in commencing this proceeding to enforce a child support order that respondent had “fail[ed] to obey,”  and  Family  Court  likewise had  subject  matter  jurisdiction to consider it… .  In the Matter of Chemung County Support Collection Unit…v Greenfield, 515864, 3rd Dept, 5-30-13

 

 

 

Mother’s Prior Consent to Placement with Sister Did Not Preclude Mother’s Petition for Custody​

The Third Department reversed Family Court’s dismissal of the biological mother’s petition for custody of a child who had been placed with her sister with the biological mother’s consent.  The Third Department determined the mother’s prior consent to custody did not preclude her petition and the respondent, as a nonparent, bore the responsibility to demonstrate extraordinary circumstances warranting her custody of the child.  The Third Department noted:

…[W]hile “no parent has an absolute right to custody of a child . . . it is settled law that, as between a biological parent . . . and a nonbiological parent . . ., the parent has a superior right that cannot  be  denied  unless the nonparent  can establish that the parent has relinquished that right because of ‘surrender, abandonment,  persisting neglect, unfitness or other like extraordinary circumstances'” … .  In the Matter of Evelyn C …, 514179, 3rd Dept, 5-30-13

 

 

Imposition of Separate and Contradictory Permanency Goals for Father and Mother Disallowed

In reversing Family Court, the Third Department determined the imposition of separate and contradictory permanency goals violated Family Court Act 1089 [d] [2] [i]:

At the end of the hearing, Family Court continued the children’s placement and approved petitioner’s goal of reunification as to the mother only. As to the father, the court disapproved the goal of reunification, directed petitioner to commence a permanent neglect proceeding to terminate his parental rights and suspended his supervised visitation.  *  *  *

Family Court erred by imposing separate and contradictory permanency goals on the mother and father.  Upon concluding at the end of a permanency hearing that a child is not to be returned immediately to a parent, the court must determine whether the permanency goal should be approved or modified and may select among five statutory permanency goals (see Family Ct Act § 1089 [d] [2] [i]; …).  These “goal[s] are listed as alternatives, with the court to choose only one.  Nothing in the statute indicates that the court may select and impose on the parties two or more goals simultaneously” … .  The statute contemplates the commencement of termination proceedings against a parent only when the permanency goal is “placement for adoption” (Family Ct Act § 1089 [d] [2] [i] [B]). To require such proceedings as to one parent where, as here, the permanency goal is reunification with the other parent is not only inconsistent with the statutory goals but also with the overall goal of permanent neglect proceedings, to further the children’s best interests by freeing them for adoption when positive parental relationships no longer exist … .  In the Matter of Julian P, 512450, 3rd Dept, 5-30-13

 

 

 

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Defective Acknowledgment Rendered Prenuptial Agreement Invalid

In a full-fledged opinion by Judge Graffeo, the Court of Appeals determined that a defective acknowledgment on a prenuptial agreement was the type of defect that could be cured but that the notary’s affidavit was not sufficient to cure the defect.  Therefore, the prenuptial agreement was invalid.  The opinion includes an extensive discussion of the statutory requirements for acknowledgments and the limited circumstances in which defects can be cured.  With regard to the specific defect at issue, the Court of Appeals wrote:

In the certificate of acknowledgment relating to the husband’s signature, the “to me known and known to me” phrase was inexplicably omitted, leaving only the following statement: “On the 8 [sic] day of July, 1997, before me came Gary Galetta described in and who executed the foregoing instrument and duly acknowledged to me that he executed the same.” Absent the omitted language, the certificate does not indicate either that the notary public knew the husband or had ascertained through some form of proof that he was the person described in the prenuptial agreement. New York courts have long held that an acknowledgment that fails to include a certification to this effect is defective. Thus, we agree with the Appellate Division, which unanimously concluded that the certificate of acknowledgment did not conform with statutory requirements.  Galetta v Galetta, No 94, CtApp, 5-30-13

 

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