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PETITIONER’S WAIVER OF HER RIGHT TO COUNSEL IN THIS FAMILY COURT ACT ARTICLE 8 PROCEEDING WAS NOT DEMONSTRATED TO HAVE BEEN VOLUNTARY; THE COURT SHOULD HAVE HELD A HEARING ON WHETHER THE RESPONDENT AND PETITIONER HAD BEEN IN AN INTIMATE RELATIONSHIP (THEREBY AFFORDING THE COURT SUBJECT MATTER JURISDICTION) (SECOND DEPT).

The Second Department, reversing Family Court in this Family Court Act article 8 proceeding, determined; (1) petitioner’s waiver of her right to counsel was invalid, and (2) the finding that petitioner did not have an intimate relationship with respondent, thereby depriving the court of subject matter jurisdiction, was not supported by the record:

A party in a proceeding pursuant to Family Court Act article 8 has the right to be represented by counsel (see Family Ct Act § 262[a][ii] … ). Although the right to counsel may be waived, the waiver must be knowing, voluntary, and intelligent … . In order to ensure that a waiver is made knowingly, voluntarily, and intelligently, the court “must conduct a searching inquiry” … and the record must reflect, among other things, “that the party was aware of the dangers and disadvantages of self-representation” … .

Here, the Family Court failed to conduct a searching inquiry of the petitioner to ensure that her waiver of her right to counsel was knowing, intelligent, and voluntary … . …

The Family Court also should have conducted a hearing prior to determining that it lacked subject matter jurisdiction on the ground that the parties did not have an intimate relationship within the meaning of Family Court Act § 812(1)(e) … . Matter of Minor v Birkenmeyer, 2021 NY Slip Op 07546, Second Dept 12-29-21

 

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DEFENDANT’S MOTION TO MODIFY THE CUSTODY ARRANGEMENT RAISED DISPUTED FACTS; THE MOTION SHOULD NOT HAVE BEEN GRANTED WITHOUT A HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined disputed factual issues required a hearing on defendant’s motion to modify the custody arrangement:

“In order to modify an existing custody arrangement, there must be a showing of a subsequent change of circumstances so that modification is required to protect the best interests of the child” … . “Custody determinations should generally be made only after a full and plenary hearing” … . “A party seeking a change in [parental access] or custody is not automatically entitled to a hearing” … . However, “where ‘facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute,’ a hearing is required” … . Silla v Silla, 2021 NY Slip Op 07571, Second Dept 12-29-21

 

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FAMILY COURT DID NOT HAVE THE AUTHORITY TO, SUA SPONTE, AMEND A DISMISSAL ORDER FROM “WITHOUT PREJUDICE” TO “WITH PREJUDICE” (THIRD DEPT).

The Third Department noted that Family Court did not have the authority to, sua sponte, amend a dismissal order from “without prejudice” to “with prejudice:”

… Family Court erred in sua sponte amending its October 13, 2020 dismissal order from “without prejudice” to “with prejudice.” Family Court may, in its discretion, correct or amend an order, so as to cure mistakes, defects or irregularities in the order that do not affect a substantial right of a party (see CPLR 5019 [a] …) or to resolve any ambiguity in the order to make it comport with what the court’s holding clearly intended … . However, in the absence of a motion pursuant to CPLR 2221 (d) or 5015 (a), Family Court lacks the authority to issue an amended or corrected order that alters its dismissal of a petition from “without prejudice” to “with prejudice,” as such alteration is one of substance … . Matter of Brian W. v Mary X., 2021 NY Slip Op 07332, Third Dept 12-23-21

 

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THE “PRECAUTIONARY ADDENDUM,” ALTHOUGH REPEALED, STILL MAY BE APPLIED TO WILLS OF PERSONS WHO DIED BEFORE MARCH 1, 1964, TO PRECLUDE INHERITANCE BY ADOPTED CHILDREN IF THE ACT OF ADOPTION WAS DESIGNED TO CUT OFF OTHER BENEFICIARIES; HERE THE SHARES OF THE OTHER BENEFICIARIES WERE DIMINISHED BUT NOT CUT OFF BY THE INCLUSION OF THE ADOPTED CHILDREN; THEREFORE THE PRECAUTIONARY ADDENDUM DID NOT APPLY (THIRD DEPT).

The Third Department determined the statutory (former Domestic Relations Law 117) “cautionary addendum” did not apply to exclude the adopted children of the decedent’s daughter as beneficiaries of a trust. The cautionary addendum (which, although repealed, can apply to the will of a person who died before March 1, 1964) applies only where the act of adoption cuts off a remainder interest that would have existed but for the adoption. Here the adopted children merely expanded the pool of beneficiaries, which diminished the shares of the other beneficiaries, but did not cut anyone off anyone’s interest:

“[T]he precautionary addendum was . . . designed to prevent the perpetration of fraud on the rights of remaindermen through an adoption for the very purpose of cutting out a remainder” … . …

… “[T]he precautionary addendum has not precluded an adopted child’s inheritance in cases where the adoption simply has brought a child within an existing class.” That said, the reduction of a beneficiary’s respective interest is necessarily reduced when the existing class of beneficiaries is expanded— i.e., a situation to which the precautionary addendum does not apply … . Accordingly, contrary to respondents’ view, a diminished share of an interest does not mean that the interest has been cut off so as to make the precautionary addendum applicable … . Matter of Falck, 2021 NY Slip Op 07342, Third Dept 12-23-21

 

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FAMILY COURT SHOULD NOT HAVE DELEGATED ITS AUTHORITY TO SET UP A VISITATION SCHEDULE TO THE CHILD AND MOTHER (THIRD DEPT).

The Third Department, reversing (modifying) Family Court and remitting the matter for a visitation schedule, determined Family Court should not have delegated its authority by allowing the child and mother to agree to a visitation schedule:

… Family Court improperly delegated its authority to the younger child when it ordered that the mother’s visitation would be only as she and the younger child could agree.

“Generally, the best interests of a child lie in having healthy and meaningful relationships with both the custodial and noncustodial parent” … . Thus, “[u]nless [visitation] is inimical to the child[]’s welfare, the court is required to structure a schedule which results in frequent and regular access by the noncustodial parent” … . The court cannot delegate to anyone, including a child, its authority to do so … , as such delegation can have “the practical effect of denying [a parent] his [or her] right to visitation with his [or her] child indefinitely without the requisite showing that visitation would be detrimental to the child’s welfare” … . Matter of Cecelia BB. v Frank CC., 2021 NY Slip Op 07323, Third Dept 12-23-21

 

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PLAINTIFF SOUGHT ARREARAGES FOR A PORTION OF DEFENDANT’S PENSION UNDER THE TERMS OF THE STIPULATION OF SETTLEMENT WHICH WAS INCORPORATED BUT NOT MERGED INTO THE JUDGMENT OF DIVORCE; THE ACTION WAS THEREFORE IN THE NATURE OF A BREACH OF CONTRACT AND WAS LIMITED BY THE SIX-YEAR STATUTE OF LIMITATIONS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the calculation of the arrearages for plaintiff’s potion of defendant’s pension was restricted by the six-year statute of limitations for contact actions. The stipulation of settlement, which is the basis for plaintiff’s right to a portion of the pension, was incorporated, but not merged, into the judgment of divorce such that a breach of the stipulation is a breach of contract:

It is well settled that “[a] stipulation of settlement that is incorporated, but not merged, into the judgment of divorce is a contract subject to the principles of contract construction and interpretation” … , and an action seeking money damages for violation of a separation agreement is subject to the six-year statute of limitations for breach of contract actions … . Contrary to the court’s determination, it is irrelevant that plaintiff sought the arrearages by way of motion rather than by commencement of a plenary action. Although motions to enforce the terms of a stipulation are not subject to the statute of limitations … , in this case plaintiff was seeking arrearages, or money damages, for the amounts that she did not receive because the QDRO was never received by Niagara Mohawk. When a party is seeking arrearages or a money judgment, the statute of limitations applies whether a party commences a plenary action … or, as here, simply moves for that relief … .

Thus, we conclude that plaintiff’s claim is timely only to the extent that she seeks her share of pension payments made within six years prior to her motion filed on July 29, 2019. Mussmacher v Mussmacher, 2021 NY Slip Op 07413, Fourth Dept 12-23-21

 

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THE FACT THAT COMPLAINANT TURNED 21 DURING THE FAMILY OFFENSE HEARING DID NOT DEPRIVE FAMILY COURT OF JURISDICTION; NOR DID THE INCAPACITY OF THE COMPLAINANT (SECOND DEPT).

The Second Department, reversing Family Court and remitting the matter, determined Family Court did lose jurisdiction over the family offense proceeding when complainant turned 21. The court noted that even if the complainant is incapacitated (but not judicially declared incompetent) Family Court has jurisdiction:

In the context of a family offense proceeding, the question of subject matter jurisdiction is generally confined to whether a qualifying offense has been committed between parties in a qualifying relationship (see Family Ct Act §§ 115[e]; 812[1] … ), irrespective of the complainant’s age. Thus, the fact that the complainant attained the age of 21 during the hearing did not deprive the court of jurisdiction to hear and determine this matter.

To the extent the respondent’s motion may be construed as challenging the petitioner’s ability to prosecute this matter in a representative capacity for the complainant, this does not amount to a jurisdictional defect requiring dismissal of the proceeding … . Indeed, “[a]n incapacitated individual who has not been judicially declared incompetent may sue or be sued in the same manner as any other person” … , and courts must not “shut their eyes to the special need of protection of a litigant actually incompetent but not yet judicially declared such” … . Rather, insofar as the record raises questions of fact as to whether the complainant may require the assistance of a guardian ad litem to protect her interests, the Family Court should have granted the petitioner’s request to appoint a guardian to the extent of conducting a hearing to determine whether such an appointment was necessary pursuant to CPLR 1201… . Matter of Vellios v Vellios, 2021 NY Slip Op 07276, Second Dept 12-22-21

 

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CASE 1: THE ACKNOWLEDGMENT OF SIGNATURES ON A NUPTIAL AGREEMENT MUST BE CONTEMPORANEOUS, BUT NOT NECESSARILY SIMULTANEOUS, WITH THE SIGNING; HERE A SEVEN-YEAR DELAY WAS TOO LONG; CASE 2: A DEFECT IN THE ACKNOWLEDGMENTS, HERE THE LAWYERS’ FAILURE TO STATE THE SIGNERS WERE PERSONALLY KNOWN TO THEM, DID NOT INVALIDATE THE AGREEEMENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined: (1) Pursuant to Domestic Relations Law (DRL) 236 (B) (3), the acknowledgment of signatures on a nuptial agreement must be contemporaneous, but not necessarily simultaneous, with the signing: and (2) if the signing is contemporaneous, but the acknowledgment is defective, the nuptial agreement remains enforceable. Here, in the Anderson case, the husband’s signature was not acknowledged until seven years after the signing (shortly before filing for divorce). In that circumstance the agreement would have to be reaffirmed to be enforceable. In the Koegel case, the lawyers’ acknowledgments failed indicate the undisputed fact that the signers were personally known to them. The defect in the acknowledgments did not affect the validity of the agreement and there was no need for reaffirmation:

[Re: Anderson:] A document that depends on an untimely acknowledgment is the legal and functional equivalent of an unacknowledged document. However, in a case involving such a document, the parties are not without a remedy. When there is an excessive delay rendering an acknowledgment ineffective and the agreement therefore unenforceable, the parties are free to reaffirm their agreement, again based on the information available to them at that time. To comply with DRL § 236 (B) (3), reaffirmation would require that both parties must again sign and acknowledge the agreement. The rule thus places the parties on a fair and equal footing in deciding whether to be bound by the agreement—either initially or at some future date if the agreement is unenforceable because of the delay. * * *

[Re: Koegel:] We … hold that the defect … presented in this appeal may be overcome with adequate evidence that the statutory requirements were met, even if the acknowledgment is not properly documented in the first instance. This limited remedy avoids invalidating a nuptial agreement when the parties have done all that the DRL requires of them. In other words, the signature and acknowledgment may satisfy the statutory mandates if extrinsic evidence supports “that the acknowledgment was properly made in the first instance” even if the certificate fails to “include the proper language” due to the notary’s or other official’s error … . Anderson v Anderson, 2021 NY Slip Op 07058, CtApp 12-16-21

 

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IN THIS FAMILY OFFENSE PROCEEDING, THE JUDGE SHOULD NOT HAVE PLACED TIME AND TESTIMONY RESTRICTIONS ON THE HEARING; ORDER REVERSED AND NEW HEARING ORDERED (FIRST DEPT).

The First Department, reversing Family Court and ordering a new hearing in this family offense proceeding, determined the judge should not have placed time and testimony restrictions on the hearing:

Order of fact-finding and disposition … , which, after a hearing, determined that respondent husband committed the family offense of harassment in the second degree, and entered a one-year order of protection directing him … to refrain from assaulting or harassing petitioner wife and the parties’ two children … , unanimously reversed … .

Family Court erred in not conducting a full fact-finding hearing. The court improperly restricted the hearing, without notice to the parties to just 15-20 minutes and limited the testimony, including that of petitioner wife. Given this, Family Court is directed to conduct a full hearing on the petition and make the requisite factual findings … . Matter of Kristina M. v Paul M., 2021 NY Slip Op 06957, First Dept 12-14-21

 

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SEXUAL BEHAVIOR IN FRONT OF THE CHILD AND SHOWING PORNOGRAPHY TO THE CHILD CONSTITUTED NEGLECT (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, determined the dismissal of the sexual-behavior-related neglect allegations was error. The petition alleged masturbation in front of the child, having sex in front of the child, and showing pornography to the child. The 3rd Department concluded the allegations were sufficiently supported by the evidence. Matter of Chloe L. (Samantha L.), 2021 NY Slip Op 06892, Third Dept 12-9-21

 

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