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THE PARENTS’ INCOME WAS NOT PROPERLY CALCULATED FOR CHILD-SUPPORT PURPOSES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the parents’ income was not properly calculated for child-support purposes:

The Child Support Standards Act (hereinafter CSSA) “sets forth a formula for calculating child support by applying a designated statutory percentage, based upon the number of children to be supported, to combined parental income up to the statutory cap that is in effect at the time of the judgment … . …

A calculation of “the basic child support obligation for the children, . . . is done by (1) determining the combined parental income and (2) multiplying the amount of combined parental income up to the statutory cap by the appropriate child support percentage” … . “[A] court has broad discretion to impute income when determining the amount of child support, and is not bound by the parties’ representations of their finances”… . The court may impute income to a party “based on the [party’s] employment history, future earning capacity, educational background” … , “resources available to the party, including ‘money, goods, or services provided by relatives and friends'” … , or “when it is shown that the marital lifestyle was such that, under the circumstances, there [is] a basis for the court to conclude that the [party’s] actual income and financial resources were greater than what he or she reported on his or her tax return[ ]” … .

Here, the Supreme Court improperly determined the parties’ income by averaging their reported earnings over the preceding four years … . Furthermore, under the circumstances of this case, where the plaintiff is employed by his family and his tax returns show substantial downward fluctuations in income, the court should have conducted an analysis as to whether to impute income to the plaintiff. Koutsouras v Mitsos-Koutsouras, 2021 NY Slip Op 05328, Second Dept 10-7-21

 

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A FRIVOLOUS APPEAL IN THIS DIVORCE PROCEEDING WARRANTED SANCTIONS AGAINST APPELLANT’S ATTORNEY (FOURTH DEPT).

The Fourth Department, determined sanctions against plaintiff’s attorney for bringing a frivolous appeal were in order in this divorce proceeding:

… [W]e consider defendant’s request for costs, attorney’s fees, and sanctions pursuant to 22 NYCRR 130-1.1. We grant defendant’s request in part and award costs in the form of reimbursement by plaintiff’s attorney, Angelo T. Calleri, for actual expenses reasonably incurred and reasonable attorney’s fees resulting from the frivolous conduct of Calleri in prosecuting this appeal … and we remit the matter to Supreme Court to determine such amount … . “[C]onduct is frivolous if: (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false” … . We conclude that Calleri’s appellate brief is replete with arguments that qualify as frivolous under the first paragraph of subdivision (c). Indeed, plaintiff’s frivolous request that we impose sanctions against defendant by itself qualifies as frivolous conduct … .  Marshall v Marshall, 2021 NY Slip Op 05194, Fourth Dept 10-1-21

 

THE 2ND DEPARTMENT, MAKING ITS OWN CREDIBILITY ASSESSMENTS, DETERMINED THE EVIDENCE SUFFICIENTLY DEMONSTRATED ABUSE; A FINDING OF NEGLECT BASED UPON EXCESSIVE CORPORAL PUNISHMENT WAS NOT SUPPORTED (SECOND DEPT).

The Second Department, reversing Family Court, making its own credibility assessments, determined there was sufficient evidence Amir abused Shyla. In addition, the Second Department determined the evidence did not demonstrate that mother neglected Amir by inflicting excessive corporal punishment:

Shyla described in detail at the fact-finding hearing the incidents of abuse by Bryan, which testimony sufficiently corroborated her out-of-court descriptions of the abuse … . Inconsistencies in Shyla’s testimony as to peripheral details, such as timing and the presence of other individuals in the home at the time of the abuse, did not detract from Shyla’s consistent and credible description of the core conduct constituting the abuse, particularly considering the child’s age at the time of these events … . Further, Shyla’s previous, out-of-court recantation of her allegations was sufficiently explained by the indirect threats she received from her own family members … . …

While the use of excessive corporal punishment constitutes neglect, “[p]arents have a right to use reasonable physical force against a child in order to maintain discipline or to promote the child’s welfare” … . Here, ACS [Administration for Children’s Services] offered evidence of a single instance in which the mother hit Amir’s arm with a belt to discipline him after he was caught shoplifting, and failed to sufficiently demonstrate that marks observed on Amir were the result of being hit with the belt by the mother. Under the circumstances, ACS failed to establish that the mother’s conduct rose to the level of neglect or that she exhibited a pattern of inflicting excessive corporal punishment on Amir … . Matter of Tarahji N. (Bryan N.–Divequa C.), 2021 NY Slip Op 05125, Second Dept 9-29-21

 

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SUPREME COURT SHOULD HAVE CONDUCTED AN INQUIRY TO ENSURE DEFENDANT INTELLIGENTLY WAIVED HIS RIGHT TO COUNSEL AFTER HIS ATTORNEY WAS PERMITTED TO WITHDRAW; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court in this divorce action, determined the court did not make sure defendant intelligently waived his right to counsel after his attorney was permitted to withdraw:

A divorce litigant has a statutory right to counsel for the custody portion of the litigation (see Family Ct Act § 262[a][iii], [v]; Judiciary Law § 35[8]). Here, the defendant’s attorney was permitted to withdraw during the trial, and the defendant proceeded pro se. However, the Supreme Court did not determine whether the defendant was unequivocally, voluntarily, and intelligently waiving his right to counsel … and failed to inquire whether the defendant understood the risks and disadvantages of appearing pro se. … [W]e … remit the matter … for a new trial … . At that time, the court should conduct a more detailed inquiry to determine whether the defendant is eligible for assigned counsel. Brandel v Brandel, 2021 NY Slip Op 05116, Second Dept 9-29-21

 

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HUSBAND DID NOT DEMONSTRATE HIS WIFE FRAUDULENTLY INDUCED HIM TO MARRY HER TO OBTAIN UNITED STATES CITIZENSHIP; THE MARRIAGE SHOULD NOT HAVE BEEN ANNULLED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the husband did not demonstrate he was fraudulently induced to marry his wife. Husband argued his wife, who was from the Philippines, induced him to marry her in order to become a United States citizen. Supreme Court annulled the marriage. The Third Department held the husband did not meet his burden of proof:

Where the consent of either spouse to a marriage was obtained by fraud, the marriage is voidable by way of an annulment action (see Domestic Relations Law §§ 7 [4]; 140 [e] … ). To obtain an annulment, the plaintiff spouse must prove that the defendant spouse knowingly made a material false representation to the plaintiff spouse with the intent of inducing the plaintiff spouse’s consent to marriage, that the misrepresentation was of such a nature as to deceive an ordinarily prudent person, that the plaintiff spouse justifiably relied on the misrepresentation in consenting to marriage and that, once aware of the false representation, cohabitation ceased … . …

The husband’s case of fraud in the inducement was premised upon his claim that the wife induced him to marry through false representations of love and affection for the sole purpose of obtaining an immigration benefit. The husband, however, failed to prove that claim at trial, as his proof fell far short of demonstrating a fraudulent premarital intent on the part of the wife. The husband’s proof primarily consisted of testimony establishing premarital and marital discord between the parties. Although the husband sought to attribute that discord to a fraudulent premarital intent, he ultimately failed to demonstrate “that the marital break was due to any cause other than the general discontent and incompatibility of the parties” … . Indeed, the husband’s own proof demonstrated that, during their marital spats, the wife indicated her desire to leave the marriage and return to her family and friends in the Philippines. The fact that she remained in the United States after the parties ceased cohabitating is insufficient to demonstrate that, prior to the marriage, the wife had the intent to induce the husband to marry with the sole objective of obtaining an immigration benefit. In determining otherwise, Supreme Court erred by not holding the husband to his burden of proof, relying too heavily upon the wife’s belated filing of a family offense petition in another county and taking a negative inference against the wife for purportedly exploring relief under the Violence Against Women Act. Travis A. v Vilma B., 2021 NY Slip Op 04996, Third Dept 9-16-21

 

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THE EVIDENCE OF ALTERCATIONS IN THE PRESENCE OF THE CHILDREN AND ALCOHOL CONSUMPTION DID NOT SUPPORT THE NEGLECT FINDINGS (THIRD DEPT).

The Third Department, reversing Family Court, determined the neglect findings were not supported by the record:

With respect to the April 2018 incident, petitioner did not sufficiently demonstrate the presence of the children during the altercation that occurred. Given that “a finding of imminent danger is contingent on the child[ren] being present,” the evidence relating to that incident was not relevant and was insufficient to support a finding of neglect … .With respect to the January 2019 incident, it is undisputed that all of the children except the oldest child were asleep during the altercation; as such, the evidence presented could not support a finding of neglect as to the younger children. As to the oldest child, it is true that “a single act of domestic violence may be sufficient to establish neglect if the child is present for such violence and is visibly upset and frightened by it” … . However, the proof at the fact-finding hearing failed in this regard because it was not established that the oldest child was visibly upset or frightened. Thus, petitioner failed to demonstrate that the oldest child was in imminent risk of emotional or physical impairment … . Moreover, the oldest child’s out-of-court statements that the father gave her two to three shots of alcohol were not corroborated by the other evidence presented by petitioner, and the mere “repetition of an accusation by a child does not corroborate that child’s prior account” … . To the contrary, even petitioner’s witnesses conceded that such a level of alcohol consumption was not supported by their observations of the oldest child’s demeanor and her .01 blood alcohol content. With respect to the allegations of alcohol abuse while caring for the children, “[t]here was insufficient evidence that [respondents] ‘misused alcoholic beverages to the extent that [they] lost self-control of [their] actions,’ or that the physical, mental, or emotional condition of the children had been impaired or was in imminent danger of becoming impaired” … . Matter of Josiah P. (Peggy P.), 2021 NY Slip Op 04936, Third Dept 9-2-21

 

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THE DOCTRINE OF LACHES DID NOT APPLY TO DEFENDANT’S MOTION TO AMEND THE DRO TO SPECIFY PLAINTIFF WAS NOT ENTITLED TO A SHARE OF DEFENDANT’S DISABILITY RETIREMENT BENEFITS; THE TWO-JUSTICE DISSENT WOULD HAVE APPLIED THE LACHES DOCTRINE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined the doctrine of laches did not apply and defendant could recoup a lump sum disability retirement payment made to plaintiff. Plaintiff and defendant were divorced and a stipulation provided plaintiff would receive her marital share of defendant’s retirement benefits under the New York State and Local Retirement System (NYSLRS). A Domestic Relations Order (DRO) was filed in 2010. In 2011 the NYSLRS approved the DRO with respect to ordinary retirement but was silent on disability retirement. In 2019 the NYSLRS approved defendant’s 2016 disability retirement application and a retroactive lump sum payment was made to defendant and plaintiff. In 2019 defendant moved to amend the DRO to specify plaintiff was not entitled to the disability retirement benefits. Supreme Court denied the motion applying the doctrine of laches. The dissent apparently agreed the laches doctrine was properly applied:

“Laches is defined as such neglect or omission to assert a right as, taken in conjunction with the lapse of time, more or less great, and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity . . . The essential element of this equitable defense is delay prejudicial to the opposing party” … . “The mere lapse of time, without a showing of prejudice, will not sustain a defense of laches” … .

Here, the court found that defendant should have sought to amend the DRO in 2011, after receiving the letter from NYSLRS. But at that time, defendant was not eligible for and had not applied for a disability retirement. When his disability retirement application was approved in February 2019 and defendant became aware that plaintiff’s distribution would accordingly increase, he promptly moved to amend the DRO. Moreover, even if there was a delay here, plaintiff utterly failed to make a showing of prejudice … . Taberski v Taberski, 2021 NY Slip Op 04804, Fourth Dept 8-26-21

 

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THE STIPULATION OF DIVORCE DIVESTED THE HUSBAND OF HIS RIGHTS IN THE MARITAL PROPERTY; THEREFORE THE HUSBAND’S JUDGMENT CREDITOR COULD NOT REACH THE PROPERTY EVEN THOUGH THE HUSBAND’S NAME REMAINED ON THE DEED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the stipulation of divorce awarding the marital property to the wife, Tiozzo, controlled such that the property could not be reached by the husband’s, Dangin’s, judgment creditor, Lenz. Lenz unsuccessfully argued the property was fair game because Dangin’s name remained on the deed:

The stipulation of divorce thus divested Dangin of his rights in the subject property. Under CPLR article 52 a judgment creditor may only seek to enforce its money judgment against a judgment debtor’s property. “Property” under CPLR 5201(b), whether realty or personalty, is defined broadly as an interest that is present or future, vested or contingent … . However, the determining factor as to whether a judgment debtor’s interest can constitute property vulnerable to a judgment creditor is whether it “could be assigned or transferred” (CPLR 5201[b]). In the stipulation of divorce Dangin gave up any right to assign or transfer to a third party an interest in the subject property. The subject property is therefore beyon.d the reach of Lenz … . Tiozzo v Dangin, 2021 NY Slip Op 04739, First Dept 8-19-21

 

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THE REFEREE DID NOT HAVE THE AUTHORITY TO PRECLUDE DEFENDANT FROM PRESENTING EVIDENCE AS AN APPARENT SANCTION FOR DEFENDANT’S FAILURE TO APPEAR; THE REFEREE’S REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the referee’s report in this matrimonial matter should not have been confirmed because the referee exceeded her authority by ruling the defendant could not present any evidence, an apparent sanction for defendant’s failure to appear:

“A referee derives his or her authority from an order of reference by the court, and the scope of the authority is defined by the order of reference” (… see CPLR 4311). “A referee who attempts to determine matters not referred to him or her by the order of reference acts beyond and in excess of his or her jurisdiction” … . Where, as here, the parties did not consent to the determination of any issues by the referee, and the order of reference directed the referee to hear and report (see CPLR 4317 [a]), “the referee had the power only to hear and report his [or her] findings”… .

Here, the Referee exceeded her authority to hear and report her findings based upon the evidence presented at trial by making a determination to preclude the defendant from presenting a case … . Pursuant to CPLR 4201, a referee assigned to hear and report “shall have the power to issue subpoenas, to administer oaths and to direct the parties to engage in and permit such disclosure proceedings as will expedite the disposition of the issues.” However, neither CPLR 4201 nor any other provision confers the authority on a referee assigned to hear and report to impose a penalty on a party for failing to appear, such as precluding that party from presenting any evidence. Pulver v Pulver, 2021 NY Slip Op 04727, Second Dept 8-18-21

 

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THE JUVENILE DELINQUENCY ADJUDICATION WAS AFFIRMED; TWO DISSENTERS ARGUED THE PROOF THE JUVENILE KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY WAIVED HIS MIRANDA RIGHTS WAS INSUFFICIENT (SECOND DEPT).

Although the Second Department affirmed the juvenile delinquency adjudication, two dissenters argued the presentment agency did not prove the juvenile was capable of knowingly, voluntarily and intelligently waiving his Miranda rights. The juvenile’s expert provided evidence of the juvenile’s limited intellectual functioning:

From the dissent:

The expert’s uncontradicted opinion was that the appellant had “fundamental problems” in understanding and comprehending Miranda rights. Specifically, the appellant believed that he had to waive his right to remain silent in order to find out what the detectives were questioning him about. The appellant did not understand what it meant for a statement to be “used against him.” Further, he did not understand the role of an attorney in the context of an interrogation.

Given the appellant’s young age, low IQ scores, and limited intellectual functioning, there are serious doubts about the appellant’s ability to knowingly and intelligently waive his Miranda rights under the circumstances … . Notably, the Presentment Agency did not introduce any expert testimony contradicting the conclusions reached by the appellant’s expert forensic psychologist … . The conclusions of the appellant’s expert were confirmed by the appellant’s educational records showing that he had been selected for an individualized education plan (hereinafter IEP) and had consistently been evaluated as having intellectual disabilities, including a low IQ with reading, listening, and comprehension difficulties. Matter of Tyler L., 2021 NY Slip Op 04713, Second Dept 8-18-21

 

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