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Reapplication for Visitation Can Not Be Conditioned on Counseling or Treatment

In reversing Family Court’s denial of a petition for visitation by a noncustodial parent without a hearing, the Second Department determined a hearing must held and no counseling or treatment can be ordered as a condition of future visitation:

“[A] noncustodial parent is entitled to meaningful visitation. Denial of that right is so drastic that it must be based on substantial evidence that visitation would be detrimental to the welfare of the child” … . Generally, visitation should be determined after a full evidentiary hearing to determine the best interests of the child … . * * *

Moreover, “a court may not order that a parent undergo counseling or treatment as a condition of future visitation or reapplication for visitation rights, but may only direct a party to submit to counseling or treatment as a component of visitation” … .  Matter of Lew v Lew, 2013 NY Slip Op 02076, 2012-01599, Docket No V-6403/11, 2nd Dept 3-27-13

 

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Ambiguity in Separation Agreement Construed Against Drafter

The Second Department determined the ambiguity in a separation agreement about whether the decedent was obligated to maintain life insurance policy should be construed against the decedent, whose attorney drafted the document:

Here, the separation agreement was ambiguous as to whether the decedent’s obligation to maintain a life insurance policy naming the defendants as beneficiaries extended beyond the date of the defendants’ emancipation. However, it is undisputed that the decedent’s attorney drafted the separation agreement. Pursuant to the doctrine of contra proferentem, the Supreme Court should have construed the ambiguity against the decedent’s estate … .  DeAngelis v DeAngelis, 2013 NY Slip Op, 2011-08587, Index No 8485/08, 2nd Dept 3-27-13

 

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Disorderly Conduct as a Family Offense Needn’t Occur in a Public Place

The Fourth Department determined that “disorderly conduct” as a family offense does not require the conduct to take place in public:

Contrary to respondent’s contention, petitioner met her burden of establishing by a preponderance of the evidence that respondent committed the family offense of disorderly conduct … . Although respondent’s conduct did not take place in public, section 812 (1) specifically states that, “[f]or purposes of this article, ‘disorderly conduct’ includes disorderly conduct not in a public place.” In addition, disorderly conduct may be committed when a person “recklessly creat[es] a risk” of annoyance or alarm through violent or threatening behavior. We thus reject respondent’s contention that the statute “requires more than a ‘risk.’ ”  Matter of McLaughlin v McLaughlin, 330, CAF 12-01556, 4th Dept. 3-22-13

 

 

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Prior Court Ruling Can Not Be Altered Even If Erroneous

In reversing the trial court’s termination of the plaintiff-husband’s obligation to provide defendant-wife with medical coverage, the Fourth Department explained that it must apply the doctrine of res judicata, even where  the prior ruling had been erroneously decided:

We agree with defendant that the court erred in terminating plaintiff’s obligation to provide her with medical insurance coverage inasmuch as our prior order requires plaintiff to provide her with that coverage. As a general rule, the doctrine of res judicata bars relitigation of previously adjudicated disputes “even where further investigation of the law or facts indicates that the controversy has been erroneously decided, whether due to oversight by the parties or error by the courts” … .As relevant here, “a final judgment of divorce settles the parties’ rights pertaining not only to those issues that were actually litigated, but also to those that could have been litigated” … .“[A]bsent unusual circumstances or explicit statutory authorization, the provisions of [such a] judgment are final and binding on the parties, and may be modified only upon direct challenge” … .Here, plaintiff did not take an appeal from our prior order, seek reargument of that order, or make a proper application to modify it. He is therefore foreclosed from collaterally attacking it in the context of this action … . Lomaglio v Lomaglio, 142, CA 12-01317, 4th Dept. 3-15-13

 

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Suspended Sentence for Non-Payment of Support Could Not Be Revoked Without Hearing

The Fourth Department ruled that Family Court could not revoke a suspended jail sentence for non-payment of support by the father without giving the father the chance to rebut the allegations against him:

The Support Magistrate previously had issued an order “on consent” in November 2011 (November order), setting forth that the father admitted that he willfully violated the February order and finding him in willful violation of the February order. The Support Magistrate imposed a sentence of four months in jail but suspended the sentence on the condition that the father did not miss two consecutive support payments. *  *  *

Although the court had the discretion to revoke the suspension of the jail sentence, the court erred in doing so without first affording the father “an opportunity to be heard and to present witnesses . . . on the issue whether good cause existed to revoke the suspension of the sentence” (Matter of Thompson v Thompson, 59 AD3d 1104, 1105, quoting Family Ct Act § 433 [a] [internal quotation marks omitted]; see Ontario County Dept. of Social Servs. v Hinckley, 226 AD2d 1126, 1126). “No specific form of a hearing is required, but at a minimum the hearing must consist of an adducement of proof coupled with an opportunity to rebut it” (Thompson, 59 AD3d at 1105 [internal quotation marks omitted]). “ ‘[I]t is well settled that neither a colloquy between a respondent and Family Court nor between a respondent’s counsel and the court is sufficient to constitute the required hearing’ ” (id.). Here, there was only the admission of nonpayment by the father’s attorney, which was insufficient (see id.), and there was no opportunity for the father to present evidence rebutting the allegations against him.  In the Matter of Davis v Bond, 281, CAF 12-00553, 4th Dept. 3-15-13

 

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Insufficient Proof to Support “Medical Neglect” Finding

The First Department reversed Family Court’s finding of medical neglect related to a five-month-old’s fractured femur.  Family Court accepted the proof that the baby, for the first time in his life, rolled over and fell off a couch when the father left him briefly to throw away a soiled diaper.  Family Court’s medical-neglect determination was based on testimony that the fracture “would cause the child evident pain…” and the length of time between the accident and when medical attention was sought.  The First Department noted the proof that swelling would not be immediately apparent and that a hairline fracture would not cause much pain until it progressed into a full fracture, as well as a video of the child showing no movement problems or signs of pain. In light of proof the child may not have exhibited symptoms of pain, the First Department determined the finding of neglect was not supported by a preponderance of the evidence. In re Amir L., 2013 NY Slip Op 01617, 9277-9278-9279, 1st Dept. 3-14-13

 

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“Aid of the Court No Longer Required” in Neglect Proceeding

The grandmother and mother of a seven-month-old were found to have neglected the child by briefly leaving the child unattended in the kitchen sink with the water running when the hot water “spiked” causing burns.  The mother and grandmother moved to dismiss the petition pursuant to Family Court Act 1051 (c) on the ground aid of the court was not required.  The Second Department noted that the facts were sufficient to sustain the petition, but determined the petition should be dismissed because the aid of the court was not required.  Following the incident the mother completed all the programs required by children’s services, the grandmother attended parenting classes with the mother voluntarily, the child was returned to the mother 18 months before the hearing, home visits confirmed the child was not left unattended and was bathed properly, and the hot water “spikes” had been eliminated. The Second Department wrote:  “The foregoing demonstrates that the incident on which the petition was based was an isolated one, that the mother and grandmother have been rehabilitated, and that the child is no longer at risk of being neglected …”.  Matter of Kayden H., 2013 NY Slip Op 01549, 2011-09702, 2011-09704, Docket No N-22472-09, 2nd Dept. 3-13-13

 

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Failure to Hold a Hearing on Mother’s Petition for Custody and Failure to Inform Father of Right to Counsel Required Reversal of Custody Determination

The Second Department determined Family Court’s failure to hold a hearing to determine the mother’s petition for custody, and the Court’s failure to advise the father that he had the right to counsel, required reversal of the grant of custody to the mother.  In the Matter of Savoca v Bellofatto, 2012-02935, Docket No V-22033-11, Second Dept 3-6-13

 

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Standard for Upward Child Support Modification, Agreement Incorporated But Not Merged.

This case, which was not affected by the 2010 amendment to Family Court Act section 451(2)(a), includes a clear discussion of the criteria for an upward modification of a child support obligation where a party is seeking to modify “a child support provision derived from an agreement or stipulation incorporated but not merged into a divorce decree…”.  The party seeking modification “has the burden of proving that the agreement was unfair or inequitable when entered into or that an unanticipated and unreasonable change of circumstances has occurred resulting in a concomitant increased need or that the needs of the child are not being adequately met…”.  Matter of Overbaugh vs Schettini, 515079 Third Dept. 2-14-13

 

Neglect for Allowing Children to Be Driven by Intoxicated Driver.

A finding of neglect based upon the respondent’s allowing the mother of the children to drive with the children when she was intoxicated (.10%) was affirmed by the Third Department. Matter of Darcy Y., 514430 Third Dept. 2-14-13

 

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