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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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Family Court Should Have Allowed Mother to Subpoena Medical Records to Rebut Allegations Against Her In Custody Proceeding​

The Second Department determined Family Court erred when it denied the mother’s subpoena for medical treatment records to rebut the allegations against her in a custody proceeding:

Under the particular facts of this case, the Family Court improvidently exercised its discretion when it did not sign a subpoena proffered by the mother so as to permit her the opportunity to present certain medical treatment records to rebut the allegations asserted against her. The subject medical treatment records were relevant to the issue of whether an award of physical custody to the father was in the best interests of the subject child, and should have been considered by the Family Court ….  Matter of Murphy v Lewis, 2013 NY Slip Op 03843, 2nd Dept, 5-29-13

 

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Grabbing and Spinning a Person Does Not Constitute Unlawful Imprisonment​

The Second Department determined that grabbing a woman by the waist, spinning her around and releasing her did not amount to unlawful imprisonment:

…[T]he evidence was legally insufficient to establish, beyond a reasonable doubt, that the appellant committed acts which, if committed by an adult, would have constituted the crime of unlawful imprisonment in the second degree (see Penal Law § 135.05). At the fact-finding hearing, the complaining witness testified that the appellant grabbed her by the waist and spun her around, and that, when she ordered him to release her, he immediately complied. This evidence was legally insufficient to establish, beyond a reasonable doubt, that the appellant “restrict[ed] a person’s movements intentionally and unlawfully in such manner as to interfere substantially with [her] liberty by moving [her] from one place to another, or by confining [her] either in the place where the restriction commence[d] or in a place to which [s]he ha[d] been moved, without consent and with knowledge that the restriction [was] unlawful” (Penal Law § 135.00; see Penal Law § 135.05…).  Matter of Terry JP, 2013 NY Slip Op 03844, 2nd Dept, 5-29-13

 

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Civil Versus Criminal Contempt Explained in Context of Imposition of Fines or Monetary Penalties

In a divorce proceeding plaintiff sought a contempt finding and the imposition of monetary penalties or fines in connection with defendant’s failure to comply with a court order.  The Second Department explained the principles underlying civil versus criminal contempt as follows:

“[U]nlike fines for criminal contempt where deterrence is the aim and the State is the aggrieved party entitled to the award, civil contempt fines must be remedial in nature and effect. The award should be formulated not to punish an offender, but solely to compensate or indemnify private complainants”…. In the instant matter, the Supreme Court held the defendant in civil contempt. “Coercive penalties designed to modify the contemnor’s behavior, generally speaking, are civil in nature, while penalties meant to punish the contemnor for past acts of disobedience are criminal…. Thus, a fine “is considered civil and remedial if it either coerces the recalcitrant party into compliance with a court order, or compensates the claimant for some loss . . . If a fine is not compensatory, it is civil only if the contemnor is given an opportunity to purge” … . Here, where the plaintiff failed to prove an actual loss, any penalty that punished the defendant for her past acts of disobedience would have been within the rubric of a criminal contempt and thus improper within this civil contempt adjudication … .  Ruesch v Ruesch, 2013 NY Slip Op 03655, 2nd Dept, 5-22-13​

 

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Wife’s Stipulation Waiving Claim to Benefits Valid Even though Law Unclear at Time of Stipulation and Benefits Later Determined by Court of Appeals to Be Marital Property

The Second Department determined that plaintiff-wife’s stipulation that variable supplement fund (VSF) benefits were not marital property should be upheld, even though the law was unclear at the time of the stipulation and the Court of Appeals subsequently determined the benefits were marital property:

The Referee was correct in noting that, at the time of the parties’ stipulation of settlement, the law on the issue of whether VSF benefits were subject to equitable distribution was unclear. The law was later clarified when the Court of Appeals held that VSF benefits were marital property subject to equitable distribution …. However, the fact that the plaintiff did not have definitive guidance on the issue of whether VSF benefits were subject to equitable distribution is not a sufficient basis upon which she may avoid the effects of her otherwise knowing and voluntary waiver. Thus, it was error to permit the defendant to avoid the consequences of her waiver of any interest in the VSF. Lamassa v Lamassa, 2013 NY Slip Op 03639, 2nd Dept, 5-22-13

 

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Children’s Hearsay Alleging Abuse by Father Was Not Corroborated; Change in Custody Should Not Have Been Granted

In reversing Family Court’s grant of the mother’s petition to modify a prior order of custody, the Third Department determined the children’s hearsay statements alleging abuse by the father was not corroborated, and therefore could not form the basis of a modification of custody:

Inasmuch as Family Ct Act § 1046 (a) (vi) is applicable to custody proceedings based upon allegations of abuse, the children’s out-of-court statements are excepted from the hearsay rule, but must be corroborated …. *  *  * Because the  children’s out-of-court statements were not corroborated, Family Court’s finding of a change in circumstances lacks a sound and substantial basis in the record.  Matter of Zukowski v Zukowski, 514074, 3rd Dept, 5-16-13

 

Sufficient Grounds for Custody Hearing Raised​

The Second Department determined Supreme Court erred when it denied plaintiff’s motion for a change in custody/visitation without holding a hearing.  The plaintiff had alleged, among other things, the defendant operated a vehicle in an impaired state, posing a danger to the children:

Here, the plaintiff made the necessary showing entitling him to a hearing regarding those branches of his motion which were to modify the Stipulation so as to award him sole legal custody and suspend the defendant’s visitation with the children, unless supervised …. Furthermore, the record does not demonstrate that the Supreme Court possessed adequate relevant information to enable it to make an informed and provident determination as to the children’s best interest so as to render a hearing unnecessary …. Accordingly, the Supreme Court erred in denying those branches of the plaintiff’s motion which sought a modification of the existing custody arrangement, without first conducting a full evidentiary hearing to ascertain the children’s best interests…. Nusbaum v Nusbaum, 2013 NY Slip Op 03307, 2nd Dept, 5-8-13

 

Burden Is On Parent to Demonstrate Exception to Statutory Relief from Making Reasonable Efforts to Reunite

The Second Department explained how the exception to Family Ct Act 1039-b[b], relating to making reasonable efforts to reunite parent and child, works. Once an enumerated condition which eliminates the need to make reasonable efforts to reunite is demonstrated, the burden switches to the parent to show that the exception should be applied:

Here …ACS [Administration for Children’s Services] established that the mother’s parental rights with respect to a sibling of the subject child had been terminated “involuntarily” …. In support of its motion, ACS submitted the judgments terminating the mother’s parental rights with respect to the child’s two elder siblings …. In opposition to ACS’s motion, the mother failed to prove that “reasonable efforts” [to reunite] should nonetheless still be required under the exception provided for in Family Court Act § 1039-b(b). We reject the mother’s contention that the statute places the burden on the social services official to establish the inapplicability of the exception, rather than on the parent to establish its applicability. …Given the text of the statute, as well as its structure, which make the exception applicable to all six enumerated circumstances, some of which involve egregious conduct by the parent, the only reasonable interpretation is that once the social services official establishes the existence of an enumerated circumstance, the burden shifts to the parent to establish the applicability of the exception. Matter of Skyler, 2013 NY Slip Op 03325, 2nd Dept, 5-8-13

 

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Failure to Pay Pension Benefits to Wife Pursuant to Divorce Was an Action which Accrued Anew Each Time a Payment Was Missed for Statute of Limitations Purposes—Plaintiff Could Sue Only for Missed Payments Going Back Six Years from When Payments Began

Pursuant to a divorce, plaintiff was entitled to a share of her husband’s pension benefits starting in 1991.  Plaintiff did not start receiving the payments until 2005.  She did not bring an action on the unpaid benefits between 1991 and 2005 until 2010.  The Fourth Department determined that a cause of action for the unpaid benefits accrued anew when each payment was missed.  Because the statute of limitations is six years, the plaintiff could sue only for the unpaid benefits which accrued during the six years prior to when her action was started in 2010.  Bielecki v Bielecki, CA 12-01393, 264, 4th Dept, 5-3-13

 

Sole Custody to Mother Appropriate Because Voluntary Joint Custody No Longer Working

In affirming the grant of sole custody to the mother (in the face of a voluntary agreement of joint custody) because the parties’ relationship had deteriorated, the Third Department wrote:

Initially, “[w]here a voluntary agreement of joint custody is entered into, it will not  be  set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interests of the [child]…, and “an order entered on consent, without a plenary hearing, is entitled to less weight” ….”[A] sufficient change [in] circumstances can be established where  . . . the relationship between  joint custodial parents deteriorates ‘to the point where they simply cannot work together in a cooperative fashion for the good of their children'” … .  Matter of Youngs v Olsen, 514669, 3rd Dept, 5-2-13

 

 

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