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SUPREME COURT SHOULD NOT HAVE DEVIATED FROM THE FORMULA FOR DETERMINING TEMPORARY SPOUSAL MAINTENANCE IN THIS DIVORCE PROCEEDING WITHOUT MAKING A FINDING THAT USING THE FORMULA WOULD RESULT IN AN UNFAIR AMOUNT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this divorce proceeding, determined Supreme Court should not have deviated form the temporary spousal maintenance formula without making a finding the formula resulted in an unjust or inappropriate amount:

“The formula to determine temporary spousal maintenance that is outlined in Domestic Relations Law § 236(B)(5-a)(c) is intended to cover all of a payee spouse’s basic living expenses, including housing costs, the costs of food and clothing, and other usual expenses” … . Here, the Supreme Court’s directive that the defendant pay pendente lite maintenance in the sum of $6,940 per month plus real estate taxes, homeowner’s insurance, and homeowner’s association fees on the marital residence resulted in a double shelter allowance, since the formula used to calculate the presumptive temporary maintenance award is intended to cover all of the plaintiff’s basic living expenses, including housing costs … . It was error to deviate in this manner from the guideline amount of temporary maintenance without making a finding that such amount was unjust or inappropriate based upon the factors enumerated in Domestic Relations Law § 236(B)(5-a)(h) … . Capozzoli v Capozzoli, 2020 NY Slip Op 05715, Second Dept 10-14-20

 

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THE FACT THAT PATERNITY HAD NOT BEEN ESTABLISHED DID NOT PRECLUDE MOTHER’S GUARDIANSHIP PETITION OR FINDINGS TO ALLOW THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT).

The Second Department, reversing Family Court, determined the petition to have the child’s mother appointed guardian and to make findings necessary for the child to petition for special immigrant juvenile status (SIJS) should have been granted:

The Family Court should not have dismissed the guardianship petition on the ground that paternity had not been established. A natural parent may be appointed guardian of his or her own child (see Family Ct Act § 661 [a] …), and the mere fact that paternity has not been established for the putative father does not preclude the guardianship petition or the issuance of an order making specific findings enabling the subject child to petition for SIJS … . …

Here, the subject child is under the age of 21 and unmarried, and since we have found that the mother should have been appointed as the subject child’s guardian, a finding also should have been made that the child is dependent on a juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i) …. Further, based upon our independent factual review, the record supports a finding that reunification of the subject child with his father is not a viable option due to parental abandonment  …. Lastly, the record supports a finding that it would not be in the best interests of the subject child to return to Guatemala … . Matter of Mardin A. M.-I. (Reyna E. M.-I.–Mardin H.), 2020 NY Slip Op 05754, Second Dept 10-14-20

 

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THE 2ND DEPARTMENT CRITICIZED THE PIECEMEAL DECISION-MAKING BY SUPREME COURT IN THIS COMPLEX DIVORCE PROCEEDING WHICH RESULTED IN AN INADEQUATE RECORD ON APPEAL; HOWEVER THE 2ND DEPARTMENT ADDRESSED MANY OF THE FACTUAL ISSUES IN A DETAILED OPINION WORTH READING BUT IMPOSSIBLE TO SUMMARIZE HERE (SECOND DEPT).

The Second Department, in a detailed, fact-specific opinion by Justice Scheinkman, criticized the piecemeal approach to the decisions made by Supreme Court in this divorce proceeding, which resulted in an inadequate record for the appellate court. The Second Department took it upon itself to resolve the factual issues which could be gleaned from the record. The factual discussion is too detailed to fairly summarize here. With respect to the piecemeal decision-making and the inadequate record on appeal the court wrote:

These appeals and cross appeal, as well as the two other appeals in the same case also decided today, are a graphic illustration of the prolixity that may ensue when a complicated matrimonial case is cabined into constituent parts which are heard and decided piecemeal by the Supreme Court. The court bifurcated the trial into phases but, in the end, only conducted one of the two promised phases of the trial. Because some of the issues did not lend themselves to a neat division, the issues, and the court’s seriatim determination of them, overlap. As a consequence of the incremental approach to the serial determination of the significant issues raised, which were followed by sequential appeals and cross appeals from the various orders and the final judgment, which appeals are prosecuted on voluminous appendices and supplemental appendices, this Court has not been provided with either a clear, comprehensible, and accessible record or a unified, comprehensive analysis by each party as to what determinations were made by the Supreme Court and which of those decisions each party accepts or challenges. Moreover, with respect to equitable distribution of the parties’ substantial investment assets, the judgment of divorce entered by the court merely incorporated by reference its prior decisions, without specifying what is actually ordered, adjudged, and decreed, except that it set forth certain deviations from those prior decisions. Since the decisions conflict with each other in important respects, it is unclear what the court actually directed as to the equitable distribution of major and valuable assets. Kaufman v Kaufman, 2020 NY Slip Op 05732, Second Dept 10-14-20

 

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THE EVIDENCE DID NOT SUPPORT A FINDING OF NEGLECT FOR FAILURE TO PROVIDE ADEQUATE SHELTER (FIRST DEPT).

The First Department, reversing Family Court, determined the neglect finding based upon an alleged failure to provide adequate shelter was not supported by the evidence:

While the apartment was in a deteriorated condition, there is no evidence that the child, age thirteen, was in danger or imminent danger of impairment due to the condition of the apartment; indeed, the caseworker testified that she observed the child to be healthy and appropriately groomed, the child was at the appropriate grade level, and the child denied any concerns about the father … . The strong inference drawn by the court against the father for failing to testify is insufficient by itself to provide the necessary link between the conditions in the apartment and any imminent harm to the child … . Matter of Angelica M. (Joe M.), 2020 NY Slip Op 05685, First Dept 10-13-20

 

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FAMILY COURT CAN EXERCISE JURISDICTION OVER A NONRESIDENT PUTATIVE FATHER IN A PATERNITY ACTION AS LONG AS THE FACTS HAVE A CONNECTION WITH NEW YORK STATE; THE PETITION SHOULD NOT HAVE BEEN DISMISSED WITH PREJUDICE (FOURTH DEPT).

The Fourth Department determined the paternity petition should not have been dismissed with prejudice because there are circumstances where the New York Family Court can obtain jurisdiction over an out-of-state respondent in the paternity action:

In a paternity proceeding, personal jurisdiction over a nonresident putative father may be established pursuant to Family Court Act § 580-201. Petitioner, however, admittedly failed to allege in her petition that respondent engaged in sexual intercourse with the mother in New York State at the time of conception, or that he had any other relevant ties to New York State, and no other grounds for jurisdiction apply (see Family Ct Act § 580-201 [6], [8]). Under the circumstances of this case, we conclude that the court should have granted the motion on the ground that petitioner failed to state a cause of action predicated upon respondent’s sexual intercourse with petitioner in New York State … . Inasmuch as such a dismissal is not on the merits, however, we further conclude that the petition should be dismissed without prejudice … . Matter of Joyce M.M. v Robert J.G., 2020 NY Slip Op 05616, Fourth Dept 10-9-20

 

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HEARSAY STATEMENTS OF THE ALLEGED VICTIM WERE NOT CORROBORATED, NEGLECT FINDING REVERSED (FIRST DEPT).

The First Department, reversing the neglect finding, determined the hearsay statements of the alleged victim were not corroborated:

The finding of neglect was not supported by a preponderance of the evidence. “Unsworn out-of-court statements of the victim may be received and, if properly corroborated, will support a finding of abuse or neglect” … . Here, the child’s out-of-court statement made during his videotaped interview with an investigator from the the Child Advocacy Center, that respondent bit him on the right shoulder during a January 2017 incident, was not sufficiently corroborated … . Although medical findings confirmed that the child sustained injuries that were consistent with a bite mark, those findings in no way connected those marks to respondent. Further, there is no dispute that the child told respondent that he was going to make false allegations against her to the Administration for Children’s Services while the fact-finding hearing was pending, rendering his overall credibility quite impaired. Matter of Jaylin S. (Jasmine E.T.), 2020 NY Slip Op 05606, First Dept 10-8-20

 

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THE CHILD SUPPORT PROVISIONS OF THE STIPULATION OF SETTLEMENT IN THE DIVORCE ACTION VIOLATED THE CHILD SUPPORT STANDARDS ACT AND MUST BE VACATED; THE VACATUR SHOULD HAVE EXTENDED BACK TO THE DATE OF THE STIPULATION, NOT MERELY TO THE DATE OF THE RELATED MOTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court in this action on the child support provisions of a stipulation of settlement in a divorce action, determined the child support provisions violated the Child Support Standards Act and the required vacatur should extend back to the date of the stipulation:

The Child Support Standards Act (Domestic Relations Law § 240[1-b][h]; hereinafter CSSA) mandates vacatur of original child support stipulations when they fail to comply with CSSA guidelines. Here … the Supreme Court found that the parties’ failure to strictly comply with the CSSA with regard to the deviation from the statutory support obligations vitiated the child support provision of the stipulation of settlement with regard to apportionment of unreimbursed medical costs. … [T]he court improperly determined that the reimbursement of the medical costs and child care expenses was retroactive only to the filing date of the motion, relying on Luisi v Luisi (6 AD3d 398). However, in Luisi, this Court held that it was improper to award child support arrears retroactive to the date of a stipulation of settlement because the party seeking such recalculation only did so by motion in the matrimonial action rather than by plenary action … . Here, the defendant did properly commence a plenary action to vacate those provisions of the stipulation of settlement which pertained to the calculation of the medical costs and child care expenses and, upon vacatur, to recalculate the amounts owed. … Thus, the court should have granted those branches of the defendant’s motion which sought a recalculation of the arrears owed retroactive to the date of the stipulation of settlement … . Martelloni v Martelloni, 2020 NY Slip Op 05197, Second Dept 9-30-20

 

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ORDER PROHIBITING DEFENDANT HUSBAND FROM DISPARAGING PLAINTIFF WIFE TO THIRD PARTIES WAS AN UNCONSTITUTIONAL PRIOR RESTRAINT OF SPEECH; ORDER SHOULD BE MODIFIED TO PROHIBIT DISPARAGING PLAINTIFF TO PLAINTIFF’S PATIENTS (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the order issued in this divorce proceeding prohibiting defendant husband from discussing, demeaning or disparaging plaintiff wife to third parties was an unconstitutional prior restraint of speech. Plaintiff, a psychologist, wanted to prohibit defendant from talking to her patients. The Second Department held the order should be modified to limit the prohibition disparaging plaintiff to plaintiff’s patients:

The defendant correctly contends that the portion of the order granting that branch of the plaintiff’s motion which was for an order directing the defendant not to discuss, demean, or disparage the plaintiff to any third parties, including but not limited to the plaintiff’s patients, was an unconstitutional prior restraint on speech. A prior restraint on speech is a law, regulation or judicial order that suppresses speech on the basis of the speech’s content and in advance of its actual expression … . Any imposition of prior restraint, whatever the form, bears a “heavy presumption against its constitutional validity, and a party seeking to obtain such a restraint bears a correspondingly heavy burden of demonstrating justification for its imposition” … . An injunctive order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order … . The order must be tailored as precisely as possible to the exact needs of the case … . Here, the Supreme Court’s prior restraint on speech was overbroad, and not tailored as precisely as possible to the exact needs of this case. The plaintiff, a psychologist, was concerned about damage to her professional reputation due to the defendant’s allegedly demeaning statements to her patients. The court’s objective can be achieved by modifying the order to provide only that the defendant shall not discuss, demean, or disparage the plaintiff to her patients … . Karantinidis v Karantinidis, 2020 NY Slip Op 05039, Second Dept 9-23-20

 

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MOTHER’S APPLICATION TO CHANGE THE CHILD’S NAME BY ADDING MOTHER’S LAST NAME TO FATHER’S LAST NAME (HYPHENATED) WAS PROPERLY GRANTED (THIRD DEPT).

The Third Department determined mother’s application to add her last name to the father’s last name for the child (hyphenated) was properly granted. Mother and father are separated and mother has sole custody. Having both last names will facilitate dealing with the child’s medical care:

Pursuant to Civil Rights Law article 6, an application to change a child’s name shall be granted as long as the court is satisfied that the petition is true, there is no reasonable objection to the proposed name change by the opposing party and the child’s interests will be substantially promoted by the change (see Civil Rights Law § 63 …). The evidence at the hearing demonstrated that the mother is the primary legal and physical custodian of the child, with the father having parenting time with the child every other weekend for a four-hour time period. The mother testified that the child suffers from a medical condition that requires frequent visits with medical providers and, because she does not presently share her surname with the child, this fact regularly presents confusion and difficultly when dealing not only with the child’s medical and insurance providers, but also with the child’s school, pharmacy and the various foundations where she has applied for grants pertaining to the child’s diagnosis. Moreover, the child recently started kindergarten, is “very curious” and has asked the mother numerous questions regarding his family, indicating a preference for his name to reflect both the mother’s and father’s family names. To that end, the mother indicated that she is not seeking to eliminate the father’s surname, but simply to add her surname to create a hyphenated last name that includes both the mother’s and the father’s surnames. Matter of Noah ZZ. (Amanda YY.–Ramon ZZ.), 2020 NY Slip Op 05007, Third Dept 9-17-20

 

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THE CAUSE OF ACTION SEEKING THE IMPOSITION OF A CONSTRUCTIVE TRUST TO PREVENT UNJUST ENRICHMENT SHOULD NOT HAVE BEEN DISMISSED; PLAINTIFF WIFE ENTERED A SETTLEMENT AGREEMENT REQUIRING PAYMENTS BY HER EX-HUSBAND; AFTER HER EX-HUSBAND’S DEATH HIS CHILDREN ALLEGEDLY EMPTIED THE ESTATE OF ASSETS, THEREBY PREVENTING THE FULFILLMENT OF THE TERMS OF THE SETTLEMENT AGREEMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the cause of action alleging the existence of a constructive trust to prevent unjust enrichment should not have been dismissed. Plaintiff and her deceased ex-husband entered a settlement agreement in which plaintiff would be entitled to certain payments until 2020 and 2023. Plaintiff’s ex-husband died in 2017 and the complaint alleged that all of the ex-husband’s assets had been removed from the estate by the husband’s children making it impossible for the terms of the settlement to be fulfilled:

The purpose of a constructive trust is to prevent unjust enrichment … . Accordingly, ” the constructive trust doctrine is given broad scope to respond to all human implications of a transaction in order to give expression to the conscience of equity and to satisfy the demands of justice'” … . ” A constructive trust is an equitable remedy, and may be imposed when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest'” … .

Moreover, an agreement between spouses, such as the agreement and addendum here, involve a fiduciary relationship requiring the utmost good faith … . Since the agreement and addendum provide that, if necessary, the plaintiff could use the assets of Iannazzo’s [the ex-husband’s] estate to satisfy his obligations to her, and, thereafter, all of Iannazzo’s assets were transferred to the Trust before his death, his estate can provide no relief to the plaintiff and the obligations she is owed pursuant to the agreement and addendum will not be met. The plaintiff therefore adequately states a cause of action that the defendants would be unjustly enriched if the Trust is allowed to retain the portion of the assets now owned by the Trust that would satisfy the unmet obligations of Iannazzo and his estate pursuant to the agreement … . Derosa v Estate of Iannazzo, 2020 NY Slip Op 04917, Second Dept 9-16-20

 

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