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STATEMENT MADE IN PRIOR APPELLATE DECISION IN THE SAME MATTER TO THE EFFECT NO ONE QUESTIONED THE NUMBER OF HOURS PUT IN BY THE ATTORNEY FOR THE CHILD WAS DICTA AND THEREFORE SHOULD NOT HAVE BEEN CONSIDERED THE LAW OF THE CASE ON REMITTAL; THE FOURTH DEPARTMENT REDUCED THE NUMBER OF BILLABLE HOURS (FOURTH DEPT).

The Fourth Department, reducing the amount of attorney’s fees awarded by Supreme Court, noted that a statement made by the Fourth Department in a prior appeal in the same matter was dicta and therefore should not have been treated as the law of the case by Supreme Court. In the prior decision the Fourth Department stated that no one had questioned the number of hours the attorney (Reedy) had worked on the case as the attorney for the child. Supreme Court took that statement to mean the number of hours could not be reduced by the court on remittal:

Our prior order unequivocally directed the court to calculate the amount of Reedy’s fees. An award of attorney’s fees must be “calculated on the basis of the . . . hours actually and reasonably spent on the matter by . . . counsel, multiplied by counsel’s reasonable hourly rate” … . In assessing the reasonableness of the hours spent by counsel, the issue “is not whether hindsight vindicates an attorney’s time expenditures, but whether, at the time the work was performed, a reasonable attorney would have engaged in the same time expenditures” …  . Thus, upon remittal the court was, inter alia, to determine an award of attorney’s fees that adequately reflected both the time spent and whether such time “was reasonably related to the issues litigated” … . Here, especially in light of Reedy’s prior concession that the amount sought was excessive, we conclude that the court abused its discretion in fixing the amount of fees without determining the reasonableness of the number of hours included in Reedy’s fee request … .

Contrary to respondent’s contention, the court’s statement in its earlier decision that “[n]o one has questioned the number of hours [Reedy] has claimed” did not become law of the case. The doctrine of law of the case “applies only to legal determinations that were necessarily resolved on the merits in a prior decision” … . Consequently, the doctrine does not apply where, as here, the court makes statements that are “mere dicta” … . Inasmuch as the court’s ultimate ruling in its earlier decision was that Reedy was not entitled to compensation as a private pay AFC, the court’s statement about the number of hours that he worked was dictum. Stefaniak v Zulkharnain, 2020 NY Slip Op 00961, Fourth Dept 2-7-20

 

FAMILY COURT SHOULD NOT HAVE HELD A CUSTODY HEARING WITHOUT FATHER’S PARTICIPATION (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined Family Court should have held a custody hearing without father’s participation:

During an appearance at which Family Court specifically stated that it was not “making any findings” and that it would make findings only after a future hearing, the father apparently grew frustrated with the proceedings and walked out of court. As the father was leaving, the court warned him that it would issue a permanent order in his absence. Thereafter, the court proceeded to hold a hearing, take testimony from the mother, and issue its determination on custody and visitation.

“It is axiomatic that custody determinations should [g]enerally be made only after a full and plenary hearing and inquiry . . . This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest[s] of the child[ren]” … . Indeed, custody determinations “require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal result for the child. The value of a plenary hearing is particularly pronounced in custody cases in light of the subjective factors—such as the credibility and sincerity of the witnesses, and the character and temperament of the parents—that are often critical to the court’s determination” … . Matter of Williams v Davis, 2020 NY Slip Op 00777, Fourth Dept 1-31-20

 

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THE CHILDREN WISHED TO REMAIN WITH MOTHER BUT CUSTODY WAS AWARDED TO FATHER; THE ATTORNEY FOR THE CHILD AGREED FATHER SHOULD HAVE CUSTODY; MOTHER REQUESTED A LINCOLN HEARING WHICH WAS DENIED; THE DISSENT ARGUED A LINCOLN HEARING SHOULD HAVE BEEN HELD (FOURTH DEPT).

The Fourth Department determined custody of the children was properly granted to father, against the children’s wishes.  The attorney for the child (AFC) informed the court of the children’s wishes but supported custody by the father. The mother unsuccessfully argued a Lincoln hearing should have been held. The dissent agreed that a Lincoln hearing was necessary:

The mother further contends that the court erred in declining to conduct a Lincoln hearing. Inasmuch as the AFC expressed the children’s wishes to the court … , the children were both of young age … , and there are indications in the record that they were being coached on what to say to the court … , we perceive no abuse of discretion in the court’s denial of the mother’s request for a Lincoln hearing … . * * *

From the dissent:

While the decision whether to conduct a Lincoln hearing is discretionary, it is ” often the preferable course’ ” to conduct one … . Indeed, a child’s preference, although not determinative, is an “important” factor that provides the court, while considering the potential for influence and the child’s age and maturity, “some indication of what is in the child’s best interests” … . In addition, the in camera testimony of a child may ” on the whole benefit the child by obtaining for the [court] significant pieces of information [it] needs to make the soundest possible decision’ ” … .

In this case, the children were 10 and 7 years old, respectively, at the time of the proceeding, ages at which a child’s “wishes [are] not necessarily entitled to the great weight’ we accord to the preferences of older adolescents . . . [but are], at minimum, entitled to consideration’ ” … . Most importantly, the Attorney for the Children (AFC) substituted his judgment for that of the children and advocated that custody be transferred from the mother to the father, despite the fact that the children had been in the mother’s custody since birth and the fact that the father admitted to having committed an act of domestic violence against the mother. While the AFC did inform the court of the children’s expressed wishes to live with the mother, in my view, the court should have conducted a Lincoln hearing to consider those wishes and the reasons for them. Matter of Muriel v Muriel, 2020 NY Slip Op 00776,  Fourth Dept 1-31-20

 

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THE MAJORITY NOTED THAT A DECISION IS NOT AN APPEALABLE PAPER BUT HELD THE DECISION HERE IN THIS DIVORCE CASE MET THE ESSENTIAL REQUIREMENTS OF AN ORDER AND WAS THEREFORE APPEALABLE; THE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, over a dissent, determined that, although a decision is not an appealable paper, the decision in this divorce action was close enough to an order to support an appeal. The dissent disagreed:

As a preliminary matter, although not raised by the parties and although “[n]o appeal lies from a mere decision” (… see generally CPLR 5501 [c]; 5512 [a]), we conclude that the paper appealed from meets the essential requirements of an order, and we therefore treat it as such … .

From the dissent:

In 1987, this Court held that “[n]o appeal lies from a mere decision” (Kuhn v Kuhn, 129 AD2d 967, 967 [4th Dept 1987]). In reaching that conclusion, we relied on, inter alia, CPLR 5512 (a), titled “appealable paper,” which provides that “[a]n initial appeal shall be taken from the judgment or order of the court of original instance.” Until today, we have routinely followed that settled principle … . * * *

Here, the record includes a decision that is denominated only as a decision and has no ordering paragraphs and, in his notice of appeal, plaintiff explicitly appeals “from the Decision” (emphasis added). My colleagues in the majority believe that the decision is an appealable paper because it meets “the essential requirements of an order.” To support that proposition, the majority relies on Matter of Louka v Shehatou (67 AD3d 1476 [4th Dept 2009]), wherein this Court determined that a letter would be treated as an order inasmuch as “the Referee filed the letter with the Family Court Clerk and . . . the letter resolved the motion and advised the father that he had a right to appeal” (id. at 1476). Although the decision here was filed and resolved the motion, there was no directive in the decision that plaintiff had the right to appeal from it. Furthermore, I submit that almost all written decisions at least attempt to resolve the issues presented by the parties and many of those decisions are also filed. Nicol v Nicol, 2020 NY Slip Op 00740, Fourth Dept 1-31-20

 

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THE EVIDENCE DID NOT SUPPORT THE TERMINATION OF MOTHER’S PARENTAL RIGHTS; PETITIONER MADE NO EFFORT TO HELP MOTHER MAKE THE TRIAL DISCHARGE WORK (SECOND DEPT).

The Second Department, reversing Family Court, determined the evidence did not support the termination of mother’s parental rights. During the trial discharge of the child to mother, the petitioner made no effort to place in a school closer to mother and mother allowed the child to stay at the foster home on weeknights to attend school:

The evidence at the fact-finding hearing established that in May 2016, the mother had adequate housing for the child, that in June 2016, she had completed her service plan and was having unsupervised parental access with the child, and that in July 2016, she was having overnight and weekend parental access. In November 2016, the Family Court directed that the petitioner implement a trial discharge to the mother, and a trial discharge commenced on December 23, 2016. Although at that time the mother resided in Manhattan and the child was attending school in Brooklyn, the petitioner did not provide any assistance with regard to transferring the child to a school closer to the mother in Manhattan, did not provide any assistance with the child’s transportation to and from his school in Brooklyn, and did not provide other appropriate services to the family. The trial discharge failed in April 2017. According to the petitioner’s witness, the trial discharge failed after the petitioner became aware that the mother had not taken the child into her full-time custody. According to the mother, the child spent weeknights with the foster mother in Brooklyn, because of the long commute between the mother’s apartment in Manhattan and the child’s school in Brooklyn. After the trial discharge failed in April 2017, the mother consistently attended her scheduled supervised parental access two hours per week until the petition was filed on August 7, 2017.

Under the circumstances presented, the petitioner failed to establish by clear and convincing evidence that, during the relevant period of time, the mother failed to maintain contact with or plan for the future of the child, and further, that it made diligent efforts to encourage and strengthen the parental relationship (see Social Services Law § 384-b[7] …). Matter of Tai-Gi K. (Nadine B.), 2020 NY Slip Op 00586, Second Dept 1-29-20

 

FATHER’S NONVOLUNTARY UNION DUES SHOULD HAVE BEEN DEDUCTED FROM HIS INCOME FOR CALCULATION OF CHILD SUPPORT (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined father’s nonvoluntary union dues should have been deducted from his income for the calculation of child support:

Although no deduction from income for union dues is specifically mandated by the Family Court Act, there is an allowable deduction for “unreimbursed employee business expenses except to the extent said expenses reduce personal expenditures” (Family Ct Act § 413[1][b][5][vii][A]). Nonvoluntary union dues may be deducted under this category … . “However, such expenses are properly deducted from parental income in calculating child support obligations only when proven, usually by tax returns accompanied by records and receipts” … .

At the hearing, counsel for the mother consented to the deduction of the father’s nonvoluntary union dues from the father’s income for the purposes of calculating his child support and related financial obligations. Thus, the Family Court should have granted the father’s objection to so much of the Support Magistrate’s order as failed to deduct the father’s nonvoluntary union dues from his income in calculating his child support and related financial obligations. Matter of Julien v Ware, 2020 NY Slip Op 00414, Second Dept 1-22-20

 

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FATHER, WHO WAS INCARCERATED IN PENNSYLVANIA, INFORMED FAMILY COURT HE WISHED TO APPEAR BY TELEPHONE IN THE CUSTODY MATTER; FAMILY COURT DENIED THE REQUEST STATING THE COURT DID NOT HAVE JURISDICTION OVER FATHER; THE 3RD DEPARTMENT HELD FATHER, WHO HAD NOT CHALLENGED THE COURT’S JURISDICTION, SHOULD HAVE BEEN ALLOWED TO APPEAR BY PHONE (THIRD DEPT).

The Third Department, reversing Family Court, determined that father, who was incarcerated in Pennsylvania, should have been allowed to appear in the custody proceeding by telephone. Father had informed the court of his wish to appear and had not challenged the court’s jurisdiction and informed Family Court he wished to appear by telephone. Family Court denied father’s request stating that the court did not have jurisdiction over father:

“The right to be heard is fundamental to our system of justice” … . Further, “[p]arents have an equally fundamental interest in the liberty, care and control of their children” … . “[E]ven an incarcerated parent has a right to be heard on matters concerning [his or her] child, where there is neither a willful refusal to appear nor a waiver of appearance” … . Here, the father had notice of the proceeding, did not challenge Family Court’s jurisdiction and the court could have permitted him to testify telephonically … . Because the record demonstrates that the father was not given an opportunity to participate in the proceedings, we must reverse and remit for a new hearing … . Matter of Starasia E. v Leonora E., 2020 NY Slip Op 00334, Third Dept 1-16-20

 

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THE EVIDENCE DID NOT SUPPORT THE NEGLECT FINDING (SECOND DEPT).

The Second Department, reversing Family Court, determined the finding of neglect was not supported:

To establish neglect, a petitioner must demonstrate by a preponderance of the evidence, ‘first, that [the] 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 . . . to exercise a minimum degree of care in providing the child with proper supervision or guardianship’ . ‘Actual or imminent danger of impairment is a prerequisite to a finding of neglect [which] ensures that the Family Court, in deciding whether to authorize state intervention, will focus on serious harm or potential harm to…  the child, not just on what might be deemed undesirable parental behavior’ … .

… The evidence adduced at the fact-finding hearing demonstrated that the mother and the child have a difficult relationship caused, in significant part, by the mother’s disapproval of the child’s behavior and the child’s unwillingness to abide by her mother’s rules, and the fact that the child had disciplinary problems at home and at school. Contrary to the court’s determination, there was insufficient evidence to prove that the mother ever struck the child at the relevant time. While the petition alleged that the mother, during an argument with the child … locked the child in a storage room, the child testified that she herself ran into the storage room, locked the door, and was not physically hurt. This argument arose when the mother told the child that she could not go out that night. At that time, when the neglect is alleged to have occurred, the child had been residing with the mother for only one day, having lived in foster care for approximately two years. Moreover, although the petition alleged that the mother was required to make alternate living arrangements for the child since the child could no longer reside with the maternal grandmother and refused to reside with the mother, the mother’s desire to have the child reside with her does not support a finding of neglect. Finally, the evidence adduced at the fact-finding hearing of the mother’s insults and name-calling, while certainly counterproductive and inappropriate, does not rise to the level of establishing a failure to provide the child with proper supervision or guardianship or demonstrate a resulting impairment or imminent danger of impairment of the child’s physical, mental, or emotional condition … . Matter of Alexandra R.-M. (Sonia R.), 2020 NY Slip Op 00280, Second Dept 1-17-20

 

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MOTHER’S PETITION FOR A MODIFICATION OF THE CUSTODY ORDER SHOULD NOT HAVE BEEN DISMISSED AT THE CLOSE OF MOTHER’S CASE; REMITTED FOR A CONTINUED HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s petition to modify the custody order should not have been dismissed at the close of the mother’s case:

A party seeking modification of an existing custody order must demonstrate that there has been a change in circumstances such that modification is required to protect the best interests of the child  … . The best interests of the child are determined by a review of the totality of the circumstances … . In deciding an application to dismiss a petition for failure to establish a prima facie case, the court must accept the petitioner’s evidence as true and afford the petitioner the benefit of every favorable inference that can reasonably be drawn therefrom  … .

Here, accepting the mother’s evidence as true and affording her the benefit of every favorable inference, the mother presented sufficient prima facie evidence of a change of circumstances which might warrant modification of custody in the best interests of the child … . There was evidence that the mother had moved from the country of Jamaica and was now living in Staten Island with her husband and family. Further, the mother presented evidence that the stepmother had used corporal punishment on the child between the date of the custody order and the filing of the mother’s petition, despite the fact that the custody order expressly prohibited the parties from using or tolerating the use of corporal punishment on the child. Matter of Campbell v Blair, 2020 NY Slip Op 00270, Second Dept 1-17-20

 

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THE EVIDENCE WAS INSUFFICIENT TO JUSTIFY THE RULINGS IN THIS CUSTODY/PARENTAL ACCESS CASE, HEARINGS SHOULD HAVE BEEN HELD; THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE IMPOSITION OF SANCTIONS FOR FRIVOLOUS CONDUCT (SECOND DEPT). ​

The Second Department, reversing Supreme Court in this custody/parental access proceeding, determined Supreme Court should have conducted hearings because the evidence relied upon was insufficient. The Second Department further found there was insufficient evidence to support the sanctions imposed for allegedly frivolous conduct:

We disagree with the Supreme Court’s determination (1) awarding the defendant sole legal custody of the parties’ child, (2) denying that branch of the plaintiff’s cross motion which was to direct therapeutic parental access with the child, (3) directing that parental access between the plaintiff and the child “shall take place in accordance with [the child’s] preferences,” and (4) granting the defendant’s motion for a restraining order prohibiting the plaintiff from interfering with the child’s life at school, without first conducting an evidentiary hearing … . …

Here, the record demonstrates unresolved factual issues so as to require a hearing on the issues of custody and parental access … . Moreover, in making its custody and parental access determination, the Supreme Court relied on the hearsay statements and conclusions of the forensic evaluator, whose opinions and credibility were untested by either party … . * * *

… [P]ursuant to 22 NYCRR 130-1.1, sanctions may be imposed against a party or the party’s attorney for frivolous conduct. Conduct 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” … . “A party seeking the imposition of a sanction or an award of an attorney’s fee pursuant to 22 NYCRR 130-1.1(c) has the burden of proof” … .

Here, contrary to the Supreme Court’s determination, the defendant failed to establish that the plaintiff’s conduct during the underlying motion practice was frivolous … . Brin v Shady, 2020 NY Slip Op 00256, Second Dept 1-17-20

 

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