You are here: / Family Law
,

THE WIFE’S COUNTERCLAIM FOR ADULTERY IN THIS DIVORCE ACTION, WHICH, IF PROVEN, WOULD HAVE HAD SUBSTANTIAL FINANCIAL CONSEQUENCES FOR THE HUSBAND, SHOULD HAVE BEEN DISMISSED; THE HUSBAND AND THE WOMAN WHO WAS THE SUBJECT OF THE WIFE’S ALLEGATIONS SUBMITTED AFFIDAVITS DENYING ANY SEXUAL RELATIONSHIP; THE WIFE’S AFFIDAVIT WAS BASED ENTIRELY ON PROXIMITY–THE WOMAN WAS THE FAMILY’S BABYSITTER–AND WAS OTHERWISE UNSUPPORTED (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Dillon, determined the husband’s motion for summary judgment dismissing the wife’s adultery counterclaim should have been granted in this divorce action. Whether the husband committed adultery was an important issue because of the significant financial consequences agreed to in the post-nuptial agreement, including the award to the wife of 80% of the husband’s future gross income and 80% of all marital assets. The wife alleged the husband committed adultery with the family’s babysitter, R.I. The husband and R.I. submitted affidavits denying any sexual relationship:

… [T]he wife’s focus on the husband’s “opportunity” to commit adultery amounts to the husband’s mere proximity to R.L. at various times and places. Clearly, R.L. was the family babysitter and, in that capacity, could be expected to be in the husband’s presence on many occasions, including occasional overnight stays. The wife offers no facts or evidence — whether objective, inferential, or otherwise — of any adulterous conduct between the husband and R.L. beyond their mere physical proximity to one another. The wife’s affidavit provides no dates, describes no suspicious circumstance with any detail or particularity, identifies no particular relevant social event, and identifies no witness who observed conduct or heard comments between the husband and R.L. that might inferentially support a claim of adultery against the husband. There is no investigator, no photograph, and no suspicious documents, texts, emails, or social media posts. Put another way, the wife’s opposition to summary judgment amounts to mere unilateral speculation, conjecture, guess, and surmise stemming from the husband’s and R.L.’s mere proximity to one another, without anything more. The wife’s conclusory affidavit cannot substitute for admissible evidence even recognizing, as we do, that the adultery counterclaim is premised upon circumstantial evidence and the court’s role in determining summary judgment is that of issue-finding … . Agulnick v Agulnick, 2020 NY Slip Op 07335, Second Dept 12-9-20

 

,

THE CHILD’S HEARSAY STATEMENTS CLAIMING HE WAS PUNCHED IN THE STOMACH WERE NOT CORROBORATED AND THEREFORE COULD NOT SUPPORT A FINDING OF NEGLECT BY THE INFLICTION OF EXCESSIVE CORPORAL PUNISHMENT (SECOND DEPT). ​

The Second Department, reversing (modifying) Family Court, determined the child’s hearsay statements claiming Manuel R. punched him in the stomach were not corroborated. Therefore the finding that Manuel R. neglected the child by inflicting excessive corporal punishment:

… [G]enerally a petitioner must present nonhearsay, relevant evidence to reliably corroborate the out-of-court disclosures … . Moreover, “repetition of an accusation by a child does not corroborate the child’s prior account of it” … .

Here, where there was no physical evidence of neglect, the child’s out-of-court statements that Manuel R. disciplined him by punching him in the stomach were not sufficiently corroborated by nonhearsay, relevant evidence tending to support the reliability of the statements. While the child did say “ow, ow it hurt” when a case worker touched his stomach, this occurred after the caseworker told the child that she did not see bruises on his stomach. Moreover, although the child made a fist to demonstrate to the caseworker what Manuel R. allegedly did when he punched him, he did this at the same time he made his verbal accusation that Manuel R. punched him. Under these circumstances, the child’s reaction to the caseworker’s touch and his gesture in making a fist were simply a repetition of his verbal accusation, which did not serve to corroborate his out-of-court statements … . As there was no other evidence tending to corroborate the child’s out-of-court statement, the Family Court’s finding that Manuel R. inflicted excessive corporal punishment on the child was not supported by a preponderance of the evidence. Matter of Treyvone A. (Manuel R.), 2020 NY Slip Op 07049, Second Dept 11-25-20

 

,

FATHER HAD BROUGHT HIS CHILD SUPPORT PAYMENTS CURRENT; FAMILY COURT DID NOT HAVE THE AUTHORITY TO IMPOSE A SUSPENDED JAIL SENTENCE CONDITIONED ON PAYMENT OF FUTURE CHILD SUPPORT (THIRD DEPT).

The Third Department, reversing Family Court, determined that once father had paid the child support arrears the court did not have the authority to impose a suspended jail sentence:

… [T]he father … is aggrieved by … the order suspending [the jail] sentence upon the condition that he comply with the support order for three years. A jail sentence imposed for a party’s civil contempt in failing to comply with an order — such as the father’s willful failure to pay support as ordered — is not punitive and only serves “the remedial purpose of compelling compliance” with the order … . There was “no remedial purpose to be served by continued confinement” or the threat thereof once the father had brought his support payments current … and, indeed, the order of commitment should not have been issued because the father had already “complie[d] completely with the underlying support order” … . Family Court accordingly erred in suspending the sentence and was obliged to discharge it without condition. Matter of Dupuis v Costello, 2020 NY Slip Op 06992, Third Dept 11-25-20

 

, ,

AS NO PETITION WAS BEFORE THE COURT, FAMILY COURT LACKED SUBJECT MATTER JURISDICTION AND THEREFORE DID NOT HAVE THE AUTHORITY TO ORDER A FORENSIC EVALUATION (THIRD DEPT).

The Third Department, reversing Family Court, determined Family Court did not have subject matter jurisdiction when it issued a forensic evaluation because no petition was before the court:

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of two children (born in 2004 and 2006). In July 2018, the parties stipulated in open court to a settlement of the father’s modification of custody petition and violation petitions then pending in Family Court. The parties stipulated to, among other things, suspension of the collection of accrued child support arrears and, as relevant here, agreed to engage in family counseling and to a protocol for the selection of a therapist. The transcript of the parties’ stipulation of settlement was incorporated by reference into a consent order entered in March 2019. Thereafter, the parties failed to agree on the selection of a therapist, prompting the father to request that the court appoint as a therapist a licensed psychiatrist versed in parental alienation. In June 2019, the court appointed a psychologist, but the psychologist declined to provide counseling services. By letter, the father then, among other things, requested that the court order a forensic evaluation by a different licensed psychologist. After converting the father’s request to an application for a court-ordered forensic evaluation, the court ordered a forensic evaluation over the mother’s objection. The mother appealed from that order, and we granted the mother’s subsequent motion for a stay of Family Court’s order pending resolution of this appeal … . * * *

Less than one year after the stipulation was incorporated by reference into a consent order, Family Court … ordered a forensic evaluation, citing the “unusual situation” whereby the parties stipulated to — and the court ordered — counseling and all efforts failed. This was error, as no petition had been filed by the father since the March 2019 consent order was entered, and no proceedings were therefore pending to provide Family Court with jurisdiction to render the appealed-from order directing a forensic evaluation (see Family Ct Act §§ 154-a, 251 [a] … ). Indeed, as is the case here, an expectation of finality derives from a stipulation of settlement entered into by those with legal capacity to negotiate … . Accordingly, we find that Family Court lacked subject matter jurisdiction to order a forensic evaluation. Matter of James R. v Jennifer S., 2020 NY Slip Op 06997, Third Dept 11-25-20

 

DOMESTIC RELATIONS LAW 111 GIVES A COURT THE DISCRETION TO DISPENSE WITH AN ADULT ADOPTEE’S CONSENT TO ADOPTION; HERE PETITIONERS WERE PROPERLY ALLOWED TO ADOPT MARION T., A 66-YEAR-OLD NON-VERBAL WOMAN WITH A SIGNIFICANT DEVELOPMENTAL DISABILITY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a concurrence and an extensive dissent, determined that the lower court rulings that Domestic Relations Law 111 (1)(a) gives a court the discretion to dispense with the adoptee’s consent to an adoption. Here the petitioners sought to adopt Marion T, a non-verbal 66-year-old women with a significant developmental disability.

[The} issue turns on the proper interpretation of Domestic Relations Law (DRL) § 111(1)(a), which generally requires the consent of an “adoptive child” who is over 14 years old but gives the court discretion to dispense with that consent. We agree with the Appellate Division that, in appropriate circumstances, the statute permits a court to approve an adoption even absent the consent of an adult adoptee. Because that discretion was not abused here and there is record support for the affirmed best interests finding, we affirm. Matter of Marian T. (Lauren R.), 2020 NY Slip Op 06932, CtApp 11-23-20

 

,

FAMILY COURT DID NOT HAVE THE AUTHORITY TO CONDITION VISITATION UPON FATHER’S PARTICIPATION IN MENTAL HEALTH COUNSELING; THEREFORE FATHER’S PETITION TO MODIFY CUSTODY AND VISITATION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THAT ORDER HAD BEEN VIOLATED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the motion to dismiss father’s petition to modify custody and visitation shoud not have been granted. The motion to dismiss argued father had not complied with the court’s order conditioning visitation on participation in mental health counseling. The court did not have the authority to issue that order:

… [A]lthough a court may include a directive to obtain counseling as a component of a custody or visitation order, the court does not have the authority to order such counseling as a prerequisite to custody or visitation” … . Family Court therefore “lacked the authority to condition any future application for modification of [the father’s] visitation on [his] participation in mental health counseling” … . Matter of Lane v Rawleigh, 2020 NY Slip Op 06926, Fourth Dept 11-20-20

 

,

FATHER’S PETITION TO MODIFY CUSTODY TO ALLOW HIS RELOCATION TO NORTH CAROLINA SHOULD NOT HAVE BEEN GRANTED; CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined father’s petition to modify custody to allow his relocation to North Carolina should not have been granted:

In its decision, the court considered the relevant Tropea factors but erred in applying those factors to the facts and circumstances in the case at bar. Contrary to the court’s determination, the father “failed to establish that the child’s life would be enhanced economically, emotionally and educationally by the proposed relocation” … . While the father established that he will enjoy greater economic job opportunities in North Carolina, those nominal financial gains will be negated by the greater cost of living in the area of North Carolina where he will be relocating. Additionally, as noted by the court, the father had unrealistic goals for housing in North Carolina. Notably, the father testified that he was presently paying monthly rent of $900 for a home in Olean, New York, but wanted to purchase a home in North Carolina for between $200,000 and $250,000. He acknowledged that he could not afford a home within that price range on his own and would need the financial assistance of family, his employer, and his fiancée. There is no evidence in the record, however, that anyone had committed to providing that needed assistance or had the financial ability to do so. The father also failed to establish that the child would receive a better education in North Carolina inasmuch as there is no evidence in the record comparing the schools in North Carolina to those in Olean, New York … . Furthermore, the father admitted that he had “zero” family living in North Carolina. On the other hand, the father’s mother currently lives in Olean, New York, and the father’s aunt lives nearby in Wellsville, New York. The maternal grandmother, great-grandmother and great-grandfather all live in Olean, New York. The father therefore failed to establish that he and the child would receive similar support residing in North Carolina … . In our view, the only factor that fully supported the father’s request for relocation was a “fresh start,” away from Olean, New York, where he and the mother struggled with an opiate addiction. That factor, standing alone, is insufficient to warrant relocation … . Gasdik v Winiarz, 2020 NY Slip Op 06918, Fourth Dept 11-20-20

 

,

MOTHER’S REQUEST FOR AN ADJOURNMENT SHOULD HAVE BEEN GRANTED; FAMILY COURT REVERSED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother’s request for an adjournment:

… [T]he court abused its discretion in failing to grant her attorney’s request for an adjournment … . Under the unique circumstances of this case, i.e., that the court was aware of the mother’s history of mental illness, that this was the first request for an adjournment on the mother’s behalf, and that the child’s situation would remain unaltered if the adjournment had been granted, the court improperly denied the request for an adjournment … . In addition, we conclude that the court abused its discretion in failing to grant an adjournment because of the serious concerns about the mother’s competency to assist in her own defense, which raised an issue whether it was necessary for the court to continue the appointment of a guardian ad litem … . We therefore reverse the corrected order and remit the matter to Family Court for further proceedings on the petition. Matter of Hayden A. (Karen A.), 2020 NY Slip Op 06917, Fourth Dept 11-20-20

 

,

MOTHER’S PETITION FOR A MODIFICATION OF CUSTODY TO ALLOW RELOCATION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother’s petition for a modification of custody to accommodate relocation should not have been dismissed without holding a hearing:

… [T]he mother alleged that she had specific employment advancement opportunities at her job in Monroe County, and “economic necessity . . . may present a particularly persuasive ground for permitting the proposed move” … . In addition, the mother alleged that the relocation would enhance the child’s extracurricular activities, a factor that may support a relocation … . In addition, the Attorney for the Child indicated that the child favored the relocation, another factor that may support a relocation petition … . Consequently, the petition sufficiently alleged that the relocation would be in the child’s best interests … , and the court erred in dismissing it on the ground that it did not. Finally, to the extent that the decision indicates that the court dismissed the petition on the ground that the mother failed to allege a sufficient change in circumstances, that was error … . Matter of Betts v Moore, 2020 NY Slip Op 06907, Fourth Dept 11-20-20

 

, ,

FATHER AND MOTHER SUBMITTED INADMISSIBLE EVIDENCE TO SUPPORT THEIR SUMMARY JUDGMENT MOTIONS ON THE ISSUE WHETHER THE CHILDREN WERE CONSTRUCTIVELY EMANCIPATED; FATHER’S MOTION FOR SUMMARY JUDGMENT ON HIS PETITION TO TERMINATE HIS CHILD SUPPORT OBLIGATIONS WAS PROPERLY DENIED BUT MOTHER’S PETITION FOR SUMMARY JUDGMENT DISMISSING FATHER’S PETITION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined father’s motion for summary judgment on his petition to terminate his child support obligations based on the children’s constructive emancipation was properly denied, and mother’s motion for summary judgment dismissing father’s petition should not have been granted. The basis for both rulings was the inadmissible evidence submitted by father and mother:

… [W]e conclude that the father did not meet his initial burden on his motion of establishing that their refusal to visit with him was unjustified … . Inasmuch as the father’s own submissions suggest that the subject children did not want to visit him due to their purported knowledge of the sex abuse allegations, his submissions failed to eliminate all material issues of fact … . Indeed, the father failed to establish that his behavior “was not a primary cause of the deterioration in his relationship with [the subject] children” … . Thus, we conclude that the court properly denied his motion.

We also conclude that the court should not have granted that part of the mother’s motion seeking summary judgment dismissing the petition. The court erred in relying on the unsworn letters from the subject children’s psychologist because they were not in admissible form … . Without the letters from the children’s psychologist, we conclude that the mother failed to meet her initial burden on her motion of establishing that the children were justified in abandoning the father by refusing to attend visitation. Like the father, the mother did not submit any admissible evidence establishing the reasons for the children’s decision not to visit the father. We therefore modify the amended order accordingly. Matter of Timothy M.M. v Doreen R., 2020 NY Slip Op 06886, Fourth Dept 11-20-20

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy