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THE STIPULATION RE: SHARING HUSBAND’S PENSION AT A FUTURE DATE WAS NOT AMBIGUOUS AND NEED NOT BE REFORMED; THE STIPULATION WHICH WAS INCORPORATED BUT NOT MERGED INTO THE DIVORCE JUDGMENT CANNOT BE REFORMED PURSUANT TO A MOTION, A PLENARY ACTION IS REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the stipulation that was incorporated but not merged into the divorce judgment was not ambiguous and should not have reformed the stipulation based upon a mutual mistake. The stipulation was not ambiguous and required the husband to share his pension when he turned 62. In addition, reformation of the stipulation was not appropriate pursuant to a motion. A plenary action is required to reform stipulation which is incorporated but not merged into the judgment of divorce:

… Supreme Court should have rejected the plaintiff’s contention that the stipulation of settlement was ambiguous. The interpretation of the stipulation advanced by the plaintiff would render meaningless the terms of the stipulation providing that distribution of pension benefits to the plaintiff would commence in the future, when the defendant reached the age of 62 … . Inasmuch as the language of the stipulation disclosed the parties’ intent to defer the plaintiff’s pension distribution until the defendant reached age 62, at a time he would have been eligible for regular service retirement benefits, and is not subject to more than one reasonable interpretation, the agreement is not ambiguous … .

… [T]o the extent that the Supreme Court determined that the stipulation of settlement was affected by a mutual mistake, reformation was not appropriate. A motion is not the proper vehicle for challenging a separation agreement incorporated but not merged into a judgment of divorce. Rather, the plaintiff was required to commence a plenary action to reform the stipulation … . In any event, reformation of the stipulation was unwarranted, as the parties’ mistake regarding the category of benefits the defendant would receive did not “involve a fundamental assumption of the contract” … . Anderson v Anderson, 2023 NY Slip Op 06108, Second Dept 11-29-23

Practice Point: Here the judge should not have determined the stipulation incorporated but not merged into the judgment of divorce was ambiguous because it was subject to only one interpretation.

Practice Point: A stipulation which is incorporated but not merged into the judgment of divorce cannot be reformed pursuant to a motion. A plenary proceeding must be commenced.

 

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THE JUDGE SHOULD NOT HAVE DELEGATED THE COURT’S AUTHORITY TO SCHEDULE VISITATION (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, determined the judge should not have delegated the court’s authority to schedule visitation:

… Family Court improperly granted the grandfather and the father of the older child sole authority to determine the dates for at least four consecutive days of visitation in the months of July and August. Allowing the grandfather and the father of the older child to determine periods of summer visitation for the children without the agreement of the mother, the custodial parent, constitutes “an improper delegation of authority” … . In view of the sparse state of the record, as well as the passage of time since the entry of the orders on appeal, we remit solely for the purpose of Family Court setting a schedule for the summer visitation. Matter of Daniel RR. v Heather RR., 2023 NY Slip Op 06011, Third Dept 11-22-23

Practice Point: Here the court should not have delegated the authority to schedule visitation to grandfather and father without the agreement of mother, the custodial parent.

 

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FATHER IGNORED COMPULSORY DISCOVERY OF HIS FINANCIAL ABILITY TO PAY SUPPORT; FATHER IS PRECLUDED FROM OFFERING SUCH EVIDENCE IN THE SUPPORT PROCEEDINGS (SECOND DEPT).

The Second Department, reversing Family Court, determined father should be precluded from presenting any evidence of his financial ability to pay support because he submitted no financial evidence in the discovery phase:

Family Court Act § 424-a “mandates the compulsory disclosure by both parties to a support proceeding of ‘their respective financial states,’ through the provision of tax returns, pay stubs, and sworn statements of net worth” … . “Where a respondent in a child support proceeding fails, without good cause, to comply with the compulsory financial disclosure mandated by Family Court Act § 424-a, ‘the court on its own motion or on application shall grant the relief demanded in the petition or shall order that, for purposes of the support proceeding, the respondent shall be precluded from offering evidence as to [the] respondent’s financial ability to pay support'” … .

Here, the father failed to provide a sworn statement of net worth, a tax return, or a pay stub, and he did not offer an explanation for his failure to do so. Since the father failed, without good cause, to comply with the compulsory financial disclosure mandated by Family Court Act [*2]§ 424-a, the Family Court was required to either grant the relief demanded in the petition or preclude the father from offering evidence as to his financial ability to pay support … . Under the circumstances of this case, the court should have precluded the father from offering evidence regarding his financial ability to pay support, and should have determined the amount of child support based on the needs of the child, as requested by the mother … . Matter of Grant v Seraphin, 2023 NY Slip Op 06044, Second Dept 11-22-23

Practice Point: In support proceedings, discovery of a party’s financial ability to pay support is compulsory. A party who fails to provide such discovery may be precluded from presenting any financial evidence.

 

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MOTHER’S DECLINING HEALTH WAS A FACTOR IN THE COURT’S GRANTING MOTHER’S PETITION TO RECOCATE WITH THE CHILDREN NEAR HER MOTHER IN TENNESSEE; THE DISSENT ARGUED THE REFEREE DID NOT ADEQUATELY CONSIDER THE EFFECT ON VISITATION WITH FATHER AND MOTHER DID NOT MEET HER BURDEN TO SHOW THE CHILDREN WOULD BE BETTER CARED FOR OR BETTER EDUCATED IN TENNESSEE (FOURTH DEPT).

The Fourth Department, over a dissent, determined mother’s petition for sole custody and permission to relocate to Tennessee was properly granted:

... [M]other testified at the hearing that she has been the primary caregiver of the children and that her health has been steadily declining. She further established that the maternal grandmother, who moved to Tennessee in 2021, has provided her with extensive financial assistance, as well as assistance in caring for herself and the children, and that the maternal grandmother would continue to do so if the mother were to relocate closer to the maternal grandmother … . Further, the record establishes that the father has no “accustomed close involvement in the children’s everyday life” … and thus we conclude that the need to “give appropriate weight to . . . the feasibility of preserving the relationship between the noncustodial parent and [the] child[ren] through suitable visitation arrangements” does not take precedence over the need to give appropriate weight to the necessity for the relocation … .

From the dissent:

… [T]he Referee gave disproportionate weight to certain factors and largely ignored the impact of the move on the children’s future contact with the father despite that factor weighing heavily against relocation, given the distance between Clinton County, New York, where the father resides, and Tennessee … . …

… [M]other did not establish that the children’s lives will be enhanced economically, emotionally, or educationally by the move, even if the move would not diminish them … . The mother offered no testimony that the children would receive a better education in Tennessee, and there was no testimony comparing schools in each location … .

The mother also offered no explanation as to why she and the children would be better cared for in Tennessee by the maternal grandmother—who testified that she works approximately 45 to 50 hours per week at multiple jobs in addition to caring for her son’s newborn child—than in New York by the certified caregiver the mother was approved for but has never utilized … . Matter of Martin v Martin, 2023 NY Slip Op 05893, Fourth Dept 11-17-23

Practice Point: Here mother’s declining health was a factor granting mother’s petition to relocate near her mother in Tennessee. The dissent argued the referee ignored the impact of the move on the children’s contact with father and mother did not demonstrate the children would be better cared for or better educated in Tennessee.

 

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FATHER’S PETITION FOR MODIFICATION OF CUSTODY BASED PRIMARILY UPON INCREASED TRAVEL TIME BECAUSE OF MOTHER’S MOVE SHOULD NOT HAVE BEEN DISMISSED; THE MAJORITY NOTED MANY REASONING ERRORS AND ORDERED A NEW HEARING IN FRONT OF A DIFFERENT JUDGE; TWO-JUSTICE DISSENT (THIRD DEPT) ​

The Third Department, reversing Family Court, over a two-justice dissent, determined father’s petition for a modification of the custody arrangement based upon mother’s move and the consequent increase in travel times should not have been dismissed. The matter was sent back for a new fact-finding hearing before a different judge:

Applying the correct standard at this procedural stage — providing the father the benefit of every reasonable inference and resolving all credibility questions in his favor … — the father’s proof sufficiently established that, since the entry of the 2012 order, the mother had moved to a different county, which move significantly increased the time and distance required to effectuate custodial exchanges, and that, in the nine years since said order, the mother routinely refused to agree to holiday parenting time for the father. Consequently, the father demonstrated a change in circumstances sufficient to overcome a motion to dismiss … . Matter of Shayne FF. v Julie GG., 2023 NY Slip Op 05767, Third Dept 11-16-23

Practice Point: Increased travel time because of mother’s move supported father’s petition for a modification of custody. The majority found many reasoning errors and ordered a new hearing before a different judge. A two-justice dissent argued the petition was properly dismissed.

 

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IN A PROCEEDING INTERRUPTED BY COVID THE JUDGE RULED ON FATHER’S PETITION TO RELOCATE WITH THE CHILD AND MOTHER’S CROSS-PETITION FOR SOLE CUSTODY WITHOUT COMPLETING THE HEARING; REVERSED (SECOND DEPT).

The Second Department, reversing Family Court in this custody proceeding, determined the judge should not have ruled on father’s petition to locate with the child to New Jersey and mother’s cross-petition for sole custody without completing the hearing:

“Custody determinations . . . require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal result for the child” … . Accordingly, “custody determinations should ‘[g]enerally’ be made ‘only after a full and plenary hearing and inquiry'” … . “This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child” … . “[W]here . . . facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required” … . Here, the Family Court erred in making a final custody determination without completing the hearing on the father’s petition and the mother’s cross-petition in order to determine what arrangement was in the best interests of the child … . Matter of Janvier v Santana-Jackson, 2023 NY Slip Op 05732 Second Dept 11-15-23

Practice Point: In the midst of COVID the judge ruled on father’s petition to relocate with the child and mother’s cross-petition for sole custody without completing the related hearing. Reversed.

 

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THE JUDGE GRANTED FATHER’S MOTION FOR SANCTIONS (ATTORNEY’S FEES) WITHOUT AFFORDING MOTHER AN OPPORTUNITY TO BE HEARD; THE JUDGE RULED ON FATHER’S MOTION AFTER DECIDING TO GRANT MOTHER’S MOTION FOR RECUSAL; REVERSED (SECOND DEPT). ​

The Second Department, reversing Family Court in this custody proceeding, determined the judge should not have awarded attorneys fees to father as sanctions for mother’s actions without affording mother an opportunity to be heard. In addition, the judge should not have ruled on  father’s motion for sanctions after deciding to grant mother’s motion for recusal:

… [T]he mother contends that the Family Court improvidently exercised its discretion in awarding the father reasonable attorneys’ fees without affording her a reasonable opportunity to be heard. We agree. Notably, the court never set a briefing schedule for the sanctions motion, and the court, in effect, denied the mother’s new counsel’s request to file opposition papers thereto. Under these circumstances, the mother did not receive a “reasonable opportunity to be heard” on the allegations in the sanctions motion … .

Additionally, the Family Court improvidently exercised its discretion by deciding the sanctions motion after indicating to the parties … that it intended to grant the mother’s motion for recusal. Matter of Hunte v Jones, 2023 NY Slip Op 05731, Second Dept 11-15-23

Practice Point: Here, after deciding to grant mother’s motion for recusal, the judge granted father’s motion for sanctions (attorney’s fees) without affording mother an opportunity to be heard. Reversed.

 

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THE RELIGIOUS CEREMONY IN THIS SAME-SEX MARRIAGE TOOK PLACE IN 2005 BEFORE NEW YORK RECOGNIZED SAME SEX MARRIAGE; THE CIVIL MARRIAGE TOOK PLACE IN 2011 JUST AFTER ENACTMENT OF THE MARRIAGE EQUALITY ACT (MEA); DEFENDANT SHOULD HAVE BEEN ALLOWED TO AMEND HER ANSWER TO ALLEGE THE MARRIAGE TOOK PLACE IN 2005 (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Ford, reversing Supreme Court, determined defendant’s motion amend the answer in this divorce proceeding to allege the date of this same-sex marriage to have been when the religious ceremony took place in 2005, as opposed the date of the subsequent civil marriage in 2011, should have been granted. In 2005 same sex marriage was not recognized in New York. The Marriage Equality Act (MEA) recognizing same sex marriage was enacted in 2011 and the parties civil marriage took place shortly after the enactment. There has been no determination the MEA cannot apply retroactively. So defendant’s motion to amend is not palpably improper and does not prejudice the plaintiff:

At this stage in the litigation, we are tasked only with determining whether the defendant should be permitted to amend her answer to make the claim that the date of the parties’ marriage was July 21, 2005, not July 28, 2011. “In the absence of prejudice or surprise to the opposing party, a motion for leave to amend the [pleadings] pursuant to CPLR 3025(b) should be freely granted unless the proposed amendment is ‘palpably insufficient’ to state a cause of action or is patently devoid of merit” … . * * *

… [T]he plaintiff failed to establish that the defendant’s proposed amendment was prejudicial to her in such a way that the defendant’s motion for leave to amend her answer should be denied. Neither the length of time between the defendant’s original answer and her motion for leave to amend, nor the fact that the amendment may affect the plaintiff’s maintenance and equitable distribution obligations, are sufficient to establish prejudice to the plaintiff … . Mackoff v Bluemke-Mackoff, 2023 NY Slip Op 05721, Second Dept 11-15-23

Practice Point: In this divorce case, the same-sex couple was married in a 2005 religious ceremony before the Marriage Equality Act (MEA). The couple was married again in a civil ceremony in 2011 shortly after the MEA was enacted. Defendant should have been allowed to amend her answer to state the marriage took place in 2005, not 2011.

 

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RESPONDENT, THE CHILDREN’S UNCLE WHO LIVED WITH THE CHILDREN’S FAMILY, WAS A FUNCTIONAL EQUIVALENT OF A PARENT AND SHOULD HAVE BEEN DEEMED A PERSON LEGALLY RESPONSIBLE FOR THE CHILDREN IN THIS SEXUAL ABUSE PROCEEDING (SECOND DEPT).

The Second Department, reversing Family Court, determined respondent, the children’s uncle who lived with the children’s family, was a person legally responsible for the children who had sexually abused the children:

“Determining whether a particular person has acted as the functional equivalent of a parent is a discretionary, fact-intensive inquiry which will vary according to the particular circumstances of each case. Factors such as the frequency and nature of the contact between the child and respondent, the nature and extent of the control exercised by the respondent over the child’s environment, the duration of the respondent’s contact with the child, and the respondent’s relationship to the child’s parent(s) are some of the variables which should be considered and weighed by a court” … . These factors are not exhaustive, “but merely illustrate some of the salient considerations in making an appropriate determination” … . * * *

… [T]he respondent, the paternal uncle of Yasmin P. and Hilary P., continually resided in the same apartment with Yasmin P. and Hilary P. for approximately five years. In addition, the respondent’s brother testified during the fact-finding hearing that the respondent told him that the respondent considered both the respondent’s family and the respondent’s brother’s family, including Yasmin P. and Hilary P., to be one big family (see Family Ct Act § 1012[g] …). The respondent also exercised control over Yasmin P.’s and Hilary P.’s environment during the relevant period by freely accessing their bedroom and the common areas of the apartment, including when Yasmin P. and Hilary P. were home and their parents were away at work or running errands, and by controlling Yasmin P. with commands or the promise of gifts. Accordingly, the evidence adduced at the fact-finding hearing established that the respondent was a person legally responsible for Yasmin P. and Hilary P. Matter of Marjorie P. (Gerardo M. P.), 2023 NY Slip Op 05734, Second Dept 11-15-23

Practice Point: Here the children’s uncle, who lived with the children’s family, should have been deemed a person legally responsible for the children in this sexual abuse proceeding.

 

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THE BIOLOGICAL MOTHER OF THE CHILD DIED BEFORE SHE AND PETITIONER WERE TO BE MARRIED; THE BIOLOGICAL FATHER ARGUED PETITIONER DID NOT HAVE STANDING TO SEEK CUSTODY AND FAMILY COURT AGREED; HOWEVER STANDING CAN BE DEMONSTRATED BY EXTRAORDINAY CIRCUMSTANCES WHICH MAY BE PRESENT; MATTER REMITTED FOR A RULING (FIRST DEPT).

The First Department, reversing Family Court, determined standing in a custody matter can be proven by extraordinary circumstances and sent the matter back for a ruling. The child’s mother died unexpectedly before she and petitioner were to be married. The petition was denied for lack of standing. However, standing can be proven by extraordinary circumstance which may be demonstrated here:

As a prerequisite to seeking custody or visitation with a child, a party must establish standing. The party may establish standing (1) as a parent pursuant to Domestic Relations Law § 70; (2) as a sibling for visitation pursuant to Domestic Relations Law § 71; (3) as a grandparent for visitation or custody pursuant to Domestic Relations Law § 72; or (4) by showing extraordinary circumstances pursuant to Matter of Bennett v Jeffreys (40 NY2d 543 [1976]) … . * * *

Family Court erred in dismissing petitioner’s custody and visitation petitions without permitting petitioner the opportunity to present evidence supporting her argument that she had standing based on extraordinary circumstances. Indeed, the Referee stated on the record during the hearing that she agreed with the biological father’s position that petitioner could only present extraordinary circumstances evidence after she established that she had standing. This is an error of law, as extraordinary circumstances is one of several bases for standing to seek custody and visitation.

Extraordinary circumstances may be found where there has been “a judicial finding of surrender, abandonment, unfitness, persistent neglect, unfortunate or involuntary extended disruption of custody, or other equivalent but rare extraordinary circumstance which would drastically affect the welfare of the child” … . Matter of Lashawn K. v Administration for Children’s Servs., 2023 NY Slip Op 05662, First Dept 11-9-23

Practice Point: Standing to bring a custody petition may be demonstrated by extraordinary circumstances. Here the biological mother died unexpectedly before she and petitioner were to be married. The biological father successfully argued petitioner did not have standing. The matter was sent back for Family Court for a ruling on whether petitioner demonstrated standing based upon extraordinary circumstances.

 

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