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WHERE AN ORDER CONFLICTS WITH A DECISION, THE DECISION CONTROLS (FOURTH DEPT).

The Fourth Department, modifying Supreme Court in this post-judgment matrimonial case, determined the decision controls the discrepancy between the order and the decision:

… [B]oth parties expressly agreed in the oral stipulation that plaintiff’s benefits would be distributed “[i]n accordance with the Majauskas formula.” That oral stipulation was an unambiguous expression of the parties’ intent to follow Majauskas, …

… [T]he amended order conflicts with the court’s written decision insofar as the … amended order purports to award defendant 23.86% of a former spouse survivor annuity under 5 USC § 8341 (h) (1). The stated percentage represents defendant’s share of plaintiff’s gross monthly annuity, as calculated by the court pursuant to the Majauskas formula, but the court in its decision made no award to defendant of a former spouse survivor annuity, which, had it been awarded, would have expressly conflicted with the parties’ agreement. Where, as here, there is a conflict between the decision and the order, the decision controls, and we therefore modify the amended order accordingly … . Reukauf v Kraft, 2022 NY Slip Op 01898, Fourth Dept 3-18-22

Practice Point: If there is a conflict between an order and a decision, the decision controls.

 

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THE NEGLECT FINDING WAS NOT SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE, CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing Family Court’s neglect finding, determined the finding was not supported by the preponderance of the evidence:

“[A] party seeking to establish neglect must show, by a preponderance of the evidence … , first, that a child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship” … .. In considering whether the requisite minimum degree of care was provided, “[c]ourts must evaluate parental behavior objectively: would a reasonable and prudent parent have so acted, or failed to act, under the circumstances then and there existing” … . Here, the evidence at the fact-finding hearing establishes that the mother acknowledged her mental health issues and had been compliant with treatment following her discovery that she was pregnant … ; and that she was engaged in a supportive housing program that would allow her to care for the child, thereby limiting any extended need for foster care … . Matter of Isabella S. (Nicole S.), 2022 NY Slip Op 01897, Fourth Dept 3-18-22

Practice Point: Although the specific allegations of neglect are not described in this decision, the criteria for a neglect finding are clearly explained.

 

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THE MAJORITY HELD THE APPELLATE DIVISION PROPERLY REFUSED TO HEAR APPELLANT FATHER’S APPEAL IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING BECAUSE FATHER WAS IN DEFAULT (NO APPEAL LIES FROM A DEFAULT); THE DISSENT ARGUED FATHER WAS NOT IN DEFAULT BECAUSE HE APPEARED BY COUNSEL (CT APP).

The Court of Appeals, affirming the Appellate Division, over a strong dissent, determined the Appellate Division properly concluded it could not hear the appellant father’s appeal in this termination-of-parental-rights proceeding because he was in default (no appeal lies from a default judgment). The dissent argued father appeared by counsel and therefore was not in default:

Before this Court, appellant does not dispute the Appellate Division’s determination that his failure to appear constituted a default.

From the dissent:

The only reviewable issue before us is whether the Appellate Division properly dismissed appellant father’s appeal from a Family Court order terminating his parental rights on the ground that appellant defaulted. That decision was in error because appellant appeared through counsel during the fact-finding and dispositional hearings, as acknowledged by Family Court, and in accordance with the Family Court Act and the CPLR (see Family Ct Act § 165; CPLR 3215 [a]). Matter of Irelynn S., 2022 NY Slip Op 01869, Ct App 3-17-22

Practice Point: No appeal lies from a default judgment. The dissent argued: A party who appears by counsel, as appellant father did in these termination-of-parental-rights proceedings, is not in default.

 

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ALTHOUGH THE APPELLANT WAS IN JAPAN, THE 1ST DEPARTMENT REFUSED TO DISMISS THE APPEAL PURSUANT TO THE FUGITIVE DISENTITLEMENT DOCTRINE IN THIS FAMILY COURT CIVIL-CONTEMPT MATTER; APPELLANT HAD APPEARED VIRTUALLY IN COURT PROCEEDINGS AND STATED HE WOULD RETURN TO NEW YORK TO COMPLY WITH ANY COURT ORDER (FIRST DEPT).

The First Department refused to dismiss the appeal of this Family Court civil contempt matter pursuant to the fugitive disentitlement doctrine (which authorizes the dismissal of an appeal if the appellant has left the jurisdiction). Here father was in Japan:

Although the father is in Japan, we decline to dismiss the appeal pursuant to the fugitive disentitlement doctrine. There is no “nexus” connecting the father’s fugitive status and these proceedings … . The father has continued to appear virtually in court, communicate with his counsel, and consent to relief sought by the mother. He has complied with the terms of his probation and submitted an affidavit stating that he will return to New York to comply with any court order. Under these circumstances, we find that the father has not “flout[ed] the judicial process,” frustrated the operation of the courts, or prejudiced the mother’s rights by leaving the jurisdiction to warrant dismissal of the appeal … .Matter of Hilary C. v Michael K., 2022 NY Slip Op 01512, First Dept 3-10-22

Practice Point: If an appellant leaves the court’s jurisdiction (here father went to Japan), the appeal may be dismissed pursuant to the fugitive disentitlement doctrine. The doctrine was not applied in this Family Court civil contempt case because father participated in court proceedings virtually and stated he would return to New York to comply with any court order.

 

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THE COUNTY WHERE PLAINTIFF AND DEFENDANT OWNED A SEASONAL SECOND HOME (WHERE DEFENDANT LIVED AFTER COVID REACHED NEW YORK CITY) WAS NOT THE PROPER VENUE FOR THE DIVORCE ACTION (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Lasalle, reversing Supreme Court, determined the county where plaintiff and defendant owned a seasonal second home, and where defendant moved when COVID reached New York City, was not the proper venue for the divorce action:

The parties to this divorce action primarily resided in New York County, while maintaining a seasonal second home in Suffolk County. In March 2020, when the COVID-19 pandemic first reached New York City, the defendant retreated to the Suffolk County residence along with her pregnant and immunocompromised daughter and began spending more time there in order to assist the daughter during the pregnancy and after the child’s birth. In August 2020, the plaintiff commenced this action for a divorce and ancillary relief in Suffolk County, on the ground that the parties were residents of Suffolk County. The defendant moved pursuant to CPLR 510 and 511 for a change of venue, and the Supreme Court denied the motion.

This case presents the issue of whether sheltering in place in a seasonal home creates a sufficient degree of permanence to establish residency at that location. We hold that it does not under the circumstances of this case. Because the parties’ stays in Suffolk County were only seasonal and temporary, we hold that neither of them were residents of Suffolk County at the time of the commencement of the action. Accordingly, the Supreme Court should have granted the defendant’s motion pursuant to CPLR 510 and 511 to change the venue of the action from Suffolk County to New York County. Fisch v Davidson, 2022 NY Slip Op 01442, Second Dept 3-9-22

Practice Point: In this divorce action commenced in August 2020 (during the pandemic), the county were plaintiff and defendant owned a seasonal home, and where defendant moved when COVID reached New York City, was not the proper venue. New York County, where the couple primarily resided, was deemed the proper venue for the divorce proceedings.

 

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FAMILY COURT DID NOT HAVE JURISDICTION TO MODIFY A SEPARATION AGREEMENT WHICH WAS INCORPORATED BUT NOT MERGED INTO THE JUDGMENT OF DIVORCE; A PLENARY ACTION IS REQUIRED (FIRST DEPT).

The First Department, reversing (modifying) Family Court, determined Family Court did not have jurisdiction to modify the separation agreement by putting a cap on the child-support/spousal-support credit father was entitled to for his payment of the mortgage and apartment expenses:

A stipulation of settlement which is incorporated but not merged into the parties’ judgment of divorce may be reformed only in a plenary action … . Family Court does not have jurisdiction to modify a separation agreement … . Under the terms of the parties’ stipulation of settlement, the father is entitled to pay his $2,100 in monthly child support directly to the mortgagee of the parties’ former marital apartment. However, the Family Court erred in capping the father’s credit against support arrears at $25,200 per year based on this provision. Although Family Court found that there was no similar provision with respect to spousal support, in fact the parties’ stipulation permits the father to also deduct the payment of apartment expenses, including the mortgage, from his spousal support. Accordingly, Family Court improperly amended the stipulation by imposing an annual maximum credit to which the father is entitled based solely on his child support obligation. Matter of Deborah K. v Richard K., 2022 NY Slip Op 01391, First Dept 3-3-22

 

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MOTHER DID NOT WILLFULLY VIOLATE THE ORDER OF VISITATION; COVID MADE MEETING IN A PUBLIC PLACE DIFFICULT, THERE WAS CONFUSION ABOUT WHICH ORDER APPLIED, AND MOTHER RELIED ON HER ATTORNEY’S ADVICE (THIRD DEPT).

The Third Department, reversing Family Court, determined mother did not willfully violate an order of visitation. There was confusion about which order applied and mother relied on her attorney’s advice:

The mother contends that Family Court abused its discretion when it found that she willfully violated the visitation order. Specifically, she asserts that she did not produce the child because the father unilaterally canceled visits, there was confusion over what order was in effect, and she relied upon the communications between the parties’ attorneys to establish when the visitation would occur. * * *

… Family Court erred in finding that she willfully violated the order. Under these circumstances, where both parties testified as to the difficulties involved in having parenting time take place in a public venue during COVID-19, there was confusion among the parties as to which order was in effect at the time, and the mother relied on her attorney’s advice, which had a sound basis … , it is clear that any violation was not willful. Matter of Damon B. v Amanda C., 2022 NY Slip Op 01082, Third Dept 2-17-22

 

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CERTAIN CHILD CUSTODY RECORDS AND CHILD PROTECTIVE SERVICES RECORDS (WHICH DO NOT RELATE TO AN INVESTIGATION) MAY BE DISCOVERABLE IN THIS MEDICAL MALPRACTICE ACTION BROUGH ON BEHALF OF AN INFANT (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined certain child custody records and Child Protective Services (CPS) records were or may be discoverable in this negligence and medical malpractice case brought on behalf of an infant. The custody records were relevant to plaintiff’s standing to sue and to family dynamics which may have affected the child’s health, and there may be some CPS records which are discoverable because they do not relate to an investigation, Therefore the matter was remitted for an in camera review:

Supreme Court did not address the second basis upon which defendants sought disclosure of the custody records, however, which was that they may contain information on family dynamics that impacted the infant’s development and would therefore be relevant as to plaintiff’s allegations, in her bill of particulars, that the infant’s learning disabilities and intellectual and emotional deficits arose out of defendants’ conduct. …

… [D]efendants are not entitled to disclosure of records relating to either a report of abuse or an investigation into one … . …

… [C]hild protective officials and related child welfare organizations may well possess discoverable documents that were not generated in the course of a child protective investigation but do contain information relevant to assessing whether the infant’s claimed injuries were linked to defendants’ actions or some other cause. C.T. v Brant, 2022 NY Slip Op 01090, Third Dept 2-17-22

 

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THE SUPPORT MAGISTRATE DID NOT ENSURE THAT FATHER KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVED HIS RIGHT TO COUNSEL IN THIS CHILD SUPPORT PROCEEDING; ORDER OF COMMITMENT REVERSED (SECOND DEPT).

The Second Department, reversing Family Court’s order of commitment for father’s failure to pay child support, determined the Support Magistrate did not ensure that father’s waiver of counsel was knowing, intelligent and voluntary:

… [A]t the beginning of the hearing, the Support Magistrate asked the father what he “want[ed] to do about legal representation,” to which the father responded, “I’m speaking for myself at this point.” The Support Magistrate did not make any further inquiries regarding counsel. The Support Magistrate also failed to advise the father about the potential pitfalls of proceeding pro se. Thus, the Support Magistrate failed to conduct a sufficiently searching inquiry to ensure that the father’s waiver of his right to counsel was knowing, intelligent, and voluntary … . Under these circumstances, the father was deprived of his right to counsel at the hearing. Contrary to the mother’s contention, this violation was not cured by the fact that the father was later represented by assigned counsel during the confirmation hearing … . Matter of Sylvester v Goffe, 2022 NY Slip Op 01028, Second Dept 2-16-22

 

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FAMILY COURT SHOULD HAVE HELD A HEARING ON PLAINTIFF’S MOTION TO HOLD DEFENDANT IN CIVIL CONTEMPT FOR FAILURE TO PAY CHILD SUPPORT AND DEFENDANT’S PETITION TO REDUCE THE CHILD SUPPORT PAYMENTS; FAMILY COURT HAD GRANTED DEFENDANT’S PETITION AND DENIED PLAINTIFF’S MOTION WITHOUT HOLDING A HEARING (SECOND DEPT). ​

The Second Department, reversing Family Court, determined a hearing was necessary on plaintiff’s motion to hold defendant in civil contempt for failure to pay child support and on defendant’s petition to reduce his child support payments:

… [T]he parties’ submissions presented issues of fact with regard to the defendant’s actual income … , which the Supreme Court failed to ascertain … and whether or not he was and is able to comply with his child support obligation under the judgment of divorce … . Under such circumstances, the court erred in granting the defendant’s petition to modify the child support provisions of the judgment of divorce to the extent of directing him to pay $25 per month in child support retroactive to July 10, 2018, and in denying that branch of the plaintiff’s motion which was to adjudge the defendant in civil contempt for failure to pay child support without conducting a hearing … . Zeidman v Zeidman, 2022 NY Slip Op 00906, Second Dept 2-9-22

 

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