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THE NINE YEARS OF PENSION CREDITS THE HUSBAND EARNED BEFORE THE MARRIAGE ARE HIS SEPARATE PROPERTY; HOWEVER THE MARITAL FUNDS USED TO PURCHASE THOSE CREDITS DURING THE MARRIAGE ARE SUBJECT TO EQUITABLE DISTRIBUTION (THIRD DEPT). ​

The Third Department, reversing Supreme Court in this divorce proceeding, in a full-fledged opinion by Justice Reynolds Fitzgerald, determined the pension credits earned by the husband during the nine years prior to the marriage were his separate property. But the marital funds used to purchase those credits during the marriage were subject to equitable distribution:

“[A] pension benefit is, in essence, a form of deferred compensation derived from employment and an asset of the marriage that both spouses expect to enjoy at a future date” … . “Even though workers are unable to gain access to the money until retirement, their right to it accrues incrementally during the years of employment. Thus, that portion of a pension based on years of employment during the marriage is marital property” … . In effecting the intent of Domestic Relations Law § 236 (B), the Court of Appeals held that “these post-divorce benefits were marital property to the extent that they were compensation for past services rendered during the marriage” … . Accordingly, “it becomes evident that an employee’s interest in such a plan, except to the extent that it is earned before marriage or after commencement of a matrimonial action, is marital property” … . * * *

… [C]ompensation for past services earned prior to the marriage is separate property. The nine years of premarriage … credits were earned outside the marriage and are based on the fruit of the titled spouse’s sole labors. As they are not due in any way to the indirect contributions of the non-titled spouse … , the wife’s contention that she is entitled to an equitable share of any “appreciation” in the value of credits that have been classified as the husband’s separate property is unpersuasive. The acquisition of the separate pension credits cannot serve to transform such property into a marital asset.

… [A]s marital funds were utilized to purchase the pension credits, said funds are subject to equitable distribution. Szypula v Szypula, 2022 NY Slip Op 06664, Third Dept 11-23-22

Practice Point: The husband earned nine years of pension credits before the marriage. Those pension credits are husband’s separate property. During the marriage the pension credits were purchased with marital funds. [T]hose funds are subject to equitable distribution.

 

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FAMILY COURT’S BEST INTERESTS RULING IN THIS MODIFICATION OF CUSTODY PROCEEDING DID NOT HAVE A SOUND AND SUBSTANTIAL BASIS IN THE RECORD; THE APPELLATE DIVISION AWARDED PRIMARY PHYSICAL CUSTODY TO MOTHER (THIRD DEPT). ​

The Third Department, reversing Family Court, determined mother’s petition for a modification of custody should have been granted:

Having concluded that Family Court’s determination lacks a sound and substantial basis in the record, we are empowered to make our own independent determination of the child’s best interests, and our authority in that regard is as broad as that of Family Court … . In reviewing the record, we note that the mother testified without contradiction that she does not abuse alcohol or drugs, and while she previously struggled with her mental health, the hearing evidence showed that she has overcome that challenge and achieved a stable home life. By contrast, we find problematic the evidence of the father’s regular drinking in the child’s presence and his apparent lack of candor during the DWI assessment, as well as the dirty and unkempt condition of his apartment. We also find significant the strong position of the appellate attorney for the child in support of the mother’s petition … . In light of the foregoing, we hold that the child’s best interests are served by having the parents continue to share joint legal custody but awarding primary physical custody to the mother, with parenting time for the father as the parties shall mutually agree … . Matter of Brittni P. v Michael P., 2022 NY Slip Op 06667, Third Dept 11-23-22

Practice Point: The appellate court, reversing Family Court, held the evidence did not support Family Court’s best interests ruling continuing primary physical custody with father. The appellate court undertook its own analysis of the record and awarded primary physical custody to mother.

 

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IN THIS MODIFICATION OF CUSTODY PROCEEDING, MOTHER’S PROOF OF THE CHILD’S INJURIES IN FATHER’S CARE AND HER IMPROVED PARENTING SKILLS AND LIVING CONDITIONS WAS SUFFICIENT TO WITHSTAND FATHER’S MOTION TO DISMISS; THE JUDGE APPEARS TO HAVE PREJUDGED THE CASE; MATTER REMITTED TO BE HEARD BY A DIFFERENT JUDGE (THIRD DEPT).

The Third Department, reversing Family Court and remitting the case to a different judge, determined mother’s petition for a modification of custody should not have been dismissed:

“A parent seeking to modify an existing custody order must first show that a change in circumstances has occurred since the entry of the existing custody order that then warrants an inquiry into what custodial arrangement is in the best interests of the child” … .. “Only after this threshold hurdle has been met will the court conduct a best interests analysis” … . “When, as here, Family Court is tasked with deciding a motion to dismiss at the close of the petitioner’s proof, the court must accept the petitioner’s evidence as true and afford the petitioner every favorable inference that could reasonably be drawn from that evidence, including resolving all credibility questions in the petitioner’s favor” … . * * *

After reviewing the record, we find that the mother’s proof regarding injuries suffered by the child during the father’s parenting time, taken together with the mother’s improved parenting abilities and living conditions, demonstrated a change in circumstances sufficient to overcome a motion to dismiss … . * * *

Based on Family Court’s comments regarding its predispositions and its inappropriate comment regarding the mother’s credibility, Family Court appears to have prejudged the case … . Therefore, this matter must be remitted for a new hearing before a different judge. Matter of Nicole B. v Franklin A., 2022 NY Slip Op 06672, Third Dept 11-23-22

Practice Point: Here the evidence of the child’s injuries in father’s care and mother’s improved parenting skills and living conditions was sufficient to support her petition for a modification of custody. Father’s motion to dismiss the petition should not have been granted. The judge’s remarks about mother’s credibility and his encouraging father to make a motion to dismiss indicated the judge had prejudged the case. The matter was sent back to be heard by a different judge.

 

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A MALFUNCTION OF THE AUDIO RECORDING DEVICE MADE IT IMPOSSIBLE TO TRANSCRIBE PORTIONS OF THE TRIAL; THE APPELLATE COURT SENT THE MATTER BACK FOR A RECONSTRUCTION HEARING (FOURTH DEPT). ​

The Fourth Department, sending the matrimonial action back for a reconstruction hearing, determined the inability to transcribe portions of the audio recording prejudiced the parties:

“Parties to an appeal are entitled to have that record show the facts as they really happened at trial, and should not be prejudiced by an error or omission of the stenographer” or the audio recording device … . Here, contrary to the court’s determination, the record establishes that significant portions of the testimony of plaintiff and defendant, including testimony related to child custody and certain other issues, could not be transcribed due to malfunctions of the audio recording system, which would preclude meaningful appellate review of those issues . To the extent that they are properly before us, we have considered and rejected the parties’ remaining contentions. We therefore reverse the order, grant the motion, and remit the matter to Supreme Court to hold a reconstruction hearing with the parties and any witnesses or evidence the court deems helpful in reconstructing, if possible, those portions of the testimony of plaintiff and defendant that could not be transcribed … . Wagner v Wagner, 2022 NY Slip Op 06600, Fourth Dept 11-18-22

Practice Point: If a recording device malfunctions making it impossible to transcribe portions of a trial, the appellate court may send the matter back to reconstruct the missing parts of the record.

 

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A CHILD IN A CUSTODY PROCEEDING IS ENTITLED TO EFFECTIVE ASSISTANCE OF COUNSEL BY THE ATTORNEY-FOR-THE-CHILD (AFC), WHICH INCLUDES ADVOCATING THE CHILD’S POSITION EVEN IF THE AFC DISAGREES (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined the child received ineffective assistance in this modification of custody proceeding. With a couple of exceptions, even if the attorney-for-the-child (AFC) doesn’t agree with it, he or she must argue the child’s position:

… [T]he AFC “must zealously advocate the child’s position” (22 NYCRR 7.2 [d]). “[I]n ascertaining the child’s position, the [AFC] must consult with and advise the child to the extent of and in a manner consistent with the child’s capacities, and have a thorough knowledge of the child’s circumstances” (22 NYCRR 7.2 [d] [1]). “[I]f the child is capable of knowing, voluntary and considered judgment, the [AFC] should be directed by the wishes of the child, even if the [AFC] believes that what the child wants is not in the child’s best interests” (22 NYCRR 7.2 [d] [2]). There are two exceptions, not relevant here, where the child lacks the capacity for knowing, voluntary and considered judgment, or following the child’s wishes is likel… y to result in a substantial risk of imminent, serious harm to the child (see 22 NYCRR 7.2 [d] [3]).

… [A] child in an article 6 custody proceeding is entitled to effective assistance of counsel … , which requires the AFC to take an active role in the proceeding … .

Here, the AFC at trial made his client’s wish that there be a change in custody known to the court, but he did not “zealously advocate the child’s position” (22 NYCRR 7.2 [d] …). He did not cross-examine the mother, the police officers, or the school social worker called by the father, and we agree with the AFC on appeal that the trial AFC’s cross-examination of the father was designed to elicit unfavorable testimony related to the father, thus undermining the child’s position . His questioning also seemed designed to show that there was no change in circumstances since the entry of the last order. Further, he submitted an email to the court in response to the mother’s motion to dismiss in which he stated his opinion that there had been no change in circumstances, which again went against his client’s wishes  … . Matter of Sloma v Saya, 2022 NY Slip Op 06587, Fourth Dept 11-18-22

Practice Point: The attorney-for-the-child (AFC), absent two exceptions not relevant to this case, must argue the child’s position in a modification of custody proceeding even if he or she disagrees. Here the AFC didn’t cross-examine witnesses whose testimony was unfavorable to the child’s position and questioned witnesses in a manner which elicited testimony against the child’ position. The child was not afforded effective assistance of counsel.

 

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THE JUDGE IN THIS POST-DIVORCE PROCEEDING ENCOMPASSING FIVE APPEALS, WAS DEEMED TO HAVE MADE MANY RULINGS NOT SUPPORTED BY THE RECORD, IN PART BECAUSE NECESSARY HEARINGS WERE NOT HELD; THE IMPROPER RULINGS INCLUDED A RESTRICTION OF THE ATTORNEY-FOR-THE-CHILD’S (AFC’S) INTERACTIONS WITH THE CHILDREN (FOURTH DEPT).

The Fourth Department, reversing (and modifying) Supreme Court in this post-divorce proceeding encompassing several appeals, determined many of the court’s rulings were not supported by the record, due in part to the court’s failure to hold hearings. The court had imposed “house rules” for the children, refused to hold a Lincoln hearing, made contempt findings, modified father’s visitation, suspended father’s child support obligations, ordered family unification therapy, limited the attorney-for-the-child’s interactions with the children, and made several other rulings with which the appellate division found fault. The decision is far too detailed to fairly summarize here:

The mother and the AFC contend in appeal Nos. 1, 3, and 5 that the court erred in altering the terms of the parties’ custody and visitation arrangement and in imposing its house rules without conducting a hearing to determine the children’s best interests. We agree. We therefore modify the orders in appeal Nos. 1, 3, and 5 accordingly, and we reinstate the provisions of the agreement and remit the matter to Supreme Court for a hearing, including a Lincoln hearing, to determine whether modification of the parties’ custody and visitation arrangement is the children’s best interests.

Where there is “a dispute between divorced parents, the first concern of the court is and must be the welfare and the interests of the children” … , and “[a]ny court in considering questions of child custody must make every effort to determine what is for the best interest of the child[ren], and what will best promote [their] welfare and happiness” … . Consequently, visitation and “custody determinations should ‘[g]enerally’ be made ‘only after a full and plenary hearing and inquiry’ “… , “[u]nless there is sufficient evidence before the court to enable it to undertake a comprehensive independent review of” the children’s best interests … . Burns v Grandjean, 2022 NY Slip Op 06577, Fourth Dept 11-18-22

Practice Point: Here the Fourth Department took issue with many, many rulings made by Supreme Court in this post-divorce proceeding. The decision encompassed five appeals and too many issues to fairly summarize. Many of Supreme Court’s rulings were deemed to have been unsupported by record, in large part because necessary hearings were not held.

 

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ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS MAINTENANCE-ARREARS ACTION SHOULD NOT HAVE BEEN AWARDED WITHOUT AN EVIDENTIARY HEARING (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined that the award of attorney’s fees and expert witness fees to defendant-wife who sued for and was awarded maintenance arrears:

… Supreme Court erred in awarding attorneys’ fees and expert witness fees requested by the defendant without evaluating the defendant’s claims concerning the extent and value of those services at an evidentiary hearing … . Accordingly, the matter must be remitted to the Supreme Court, Westchester County, for a hearing on those issues and a new determination thereafter of those branches of the defendant’s motions which were for an award of attorneys’ fees and expert fees. Leung v Gose, 2022 NY Slip Op 06476, Second Dept 11-16-22

Practice Point: Here the wife was awarded maintenance arrears but the judge should have held an evidentiary hearing before awarding attorney’s fees and expert witness fees to the wife.

 

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BG, AN ADOLESCENT OFFENDER (AO) WITHIN THE MEANING OF THE “RAISE THE AGE ACT,” ASSAULTED A MAN AND THREW HIM ON THE SUBWAY TRACKS; A BYSTANDER JUMPED DOWN TO HELP THE ASSAULT VICTIM; THE BYSTANDER WAS KILLED BY A SUBWAY TRAIN WHICH STOPPED BEFORE REACHING THE ASSAULT VICTIM; THE JUDGE RULED THE MATTER SHOULD BE TRANSFERRED TO FAMILY COURT; THE PEOPLE SOUGHT A WRIT OF PROHIBITION WHICH WAS DENIED (FIRST DEPT).

The First Department denied the People’s request for a writ of prohibition to prevent respondent judge from sending a criminal case involving an adolescent offender (AO) to Family Court pursuant to the “Raise the Age Law.” In criminal matters involving AO’s the Raise the Age Law allows judges to decide whether the matter should heard in Family Court. Here BG, the AO, assaulted the victim  in a subway station and threw the victim on the tracks. A bystander jumped down to try to help the victim. The train was able to stop before reaching the assault victim, but the bystander who tried to help the victim was killed by the train:

Justice Semaj rejected the People’s argument that BG engaged in “heinous” conduct by pushing the surviving victim onto the tracks and leaving him there unconscious, observing that this argument was “rebutted by the video footage offered by the People,” which showed that the surviving victim “was conscious at the time he was pushed on to the tracks and even if he became unconscious once on the tracks, [BG] and another young person are seen going into the tracks and seemingly moving [him], possibly inadvertently, but . . . out of harm’s way.” The court further noted that Hueston [the bystander] chose to jump onto the train tracks, and that BG left after he “was told to leave by [Hueston].” … . * * *

“A writ of prohibition against a judge may be issued only when a court acts or threatens to act without jurisdiction in a matter of which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding over which it has jurisdiction” … . “Prohibition cannot be used merely to correct errors of law, however egregious and however unreviewable” … . The Court of Appeals has stressed that, in the context of criminal proceedings, the writ should be issued “only when a court exceeds its jurisdiction or authorized power in such a manner as to implicate the legality of the entire proceeding, as for example, the prosecution of a crime committed beyond the county’s geographic jurisdiction” … . “Although the distinction between legal errors and actions in excess of power is not always easily made, abuses of power may be identified by their impact upon the entire proceeding as distinguished from an error in a proceeding itself” … . Matter of Clark v Boyle, 2022 NY Slip Op 06316, First Dept 11-10-22

Practice Point: Pursuant to the “Raise the Age Law” criminal cases involving adolescent offenders (AO’s) are reviewed by a judge who can chose to have the case heard in Family Court. The AO in this case assaulted a man and threw him onto subway tracks. The man survived but a bystander who tried to help him was killed by the train. The People sought a writ of prohibition to prevent the transfer to Family Court. The First Department laid out the strict criteria for a writ of prohibition and denied it.

 

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DIRECT APPEAL, AS OPPOSED TO AN ARTICLE 78, WAS APPROPRIATE IN THIS CONTEMPT PROCEEDING; MOTHER SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO ARGUE AGAINST THE CONTEMPT ADJUDICATIONS (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined direct appeal of the contempt adjudications in this custody matter, as opposed to an Article 78 action, was appropriate under the circumstances. The contempt adjudications were vacated because mother was not given the opportunity to argue she should not be held in contempt:

… [T]he mother’s challenge to the summary contempt adjudications is properly raised via direct appeal from the order under the circumstances of this case. Although a direct appeal from an order punishing a person summarily for contempt committed in the immediate view and presence of the court ordinarily does not lie and a challenge must generally be brought pursuant to CPLR article 78 to allow for development of the record (see Judiciary Law §§ 752, 755 …), an appeal from such an order is appropriately entertained where, as here, there exists an adequate record for appellate review … .

With respect to the merits, “[b]ecause contempt is a drastic remedy, . . . strict adherence to procedural requirements is mandated” … . Here, we conclude that the court committed reversible error by failing to afford the mother the requisite “opportunity, after being ‘advised that [she] was in peril of being adjudged in contempt, to offer any reason in law or fact why that judgment should not be pronounced’ ” … . S.P. v M.P., 2022 NY Slip Op 06377, Fourth Dept 11-10-22

Practice Point: A contempt adjudication based upon actions in the court’s presence are usually properly contested in an Article 78 proceeding. Under the circumstances here, direct appeal was appropriate. The contempt adjudications were vacated because mother (in this custody proceeding) was not given the opportunity to contest them.

 

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THE JUDGE SHOULD NOT HAVE PRECLUDED MOTHER FROM BRINGING FURTHER PETITIONS WITHOUT COURT APPROVAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the judge should not have precluded mother from filing petitions for custody of a family offense without the court’s permission:

… [T]he provisions of the order … directing the mother to seek permission from the court before filing any additional petitions, whether for custody or alleging a family offense, constituted an improvident exercise of discretion. Here, the mother filed one family offense petition, ultimately determined to be unfounded, and filed one related petition to modify the parties’ custody arrangement. On this record, it cannot be said that the mother engaged in vexatious litigation or that her petitions were filed in bad faith … . Matter of McDowell v Marshall, 2022 NY Slip Op 06248, Second Dept 11-9-22

Practice Point: Mother should not have been precluded from bringing further custody of family offense petitions without court permission. She had not filed petitions in bad faith.

 

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