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ALTHOUGH FATHER MISSED PLEADING AND DISCLOSURE DEADLINES, THERE WAS NO EVIDENCE THE OMISSIONS WERE WILLFUL; THEREFORE PRECLUDING FATHER FROM PRESENTING EVIDENCE IN THE CUSTODY MODIFICATION PROCEEDING WAS TOO SEVERE A SANCTION (THIRD DEPT).

The Third Department, reversing Family Court, determined father should not have been precluded from offering evidence in the modification of custody proceeding. Although father missed several court-imposed deadlines for responding papers and disclosure, the sanction was too severe:

… [A]lthough the father failed to comply with court-ordered deadlines for responsive pleadings and discovery, the record lacks any evidence of willfulness on the part of the father to warrant a drastic sanction of complete preclusion … . The father was represented by assigned counsel at the May 7, 2018 conference during which the initial discovery schedule was established. Shortly thereafter, the mother served a first demand for interrogatories and combined discovery demand. … In the meantime, the father was assigned new counsel who appeared for the July 16, 2018 conference, at which time the deadlines were extended. At the fact-finding hearing, the father’s counsel stated that delay in responding “is predominantly my fault and I will make that very explicitly clear on the record.” In light of the preliminary conference orders, counsel also made the meritless assertion that the mother’s discovery demands were ineffective for lacking court authorization. On the other hand, counsel did serve a response to the interrogatories — although that response was unverified. In light of the foregoing, we cannot conclude that the father’s conduct was willful. Additionally, “modification of custody determinations requires a full and comprehensive hearing with the parties given the opportunity to present in open court evidence as to the best interest[s] of the child” … . Here, the preclusion of all of the father’s testimony renders it difficult to determine the best interests of this child (see id.). Based on the foregoing, we remit the matter for a new hearing. Matter of Tara DD. v Seth CC., 2020 NY Slip Op 01227, Third Dept 2-20-20

 

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COURT SHOULD NOT HAVE DISMISSED, SUA SPONTE, FATHER’S MODIFICATION OF CUSTODY PETITION FOR FAILURE TO STATE A CAUSE OF ACTION BECAUSE MOTHER DID NOT REQUEST THAT RELIEF; THE THIRD DEPARTMENT CONSIDERED AND DENIED MOTHER’S MOTION FOR SUMMARY JUDGMENT (THIRD DEPT).

The Third Department, reversing Family Court, determined the judge, sua sponte, should not have dismissed father’s modification of custody petition for failure to state a cause of action because mother did not request that relief. The Third Department went on to consider mother’s motion for summary judgment and deny it:

“[A] motion for summary judgment may be utilized in a Family Ct Act article 6 proceeding, but such a motion should be granted only when there are no material facts disputed sufficiently to warrant a trial” … . “In a custody modification proceeding, the controlling ‘material fact’ is whether or not there is a change in circumstances so as to warrant an inquiry into whether the best interests of the children would be served by modifying the existing custody arrangement” … .

Here, the mother failed to meet her initial summary judgment burden. There can be no dispute that only five months had elapsed since entry of the March 2018 order and, as such, the “automatic” change in circumstances provision incorporated in that order had not been triggered. The father, however, sought modification based upon several other alleged changes in circumstance, including that the mother had been disparaging the father in front of the children in violation of the March 2018 order and that she is living in a homeless shelter. The mother, in her motion for summary judgment, makes no mention of these allegations or otherwise attempts to refute them in any way. Matter of Anthony F. v Christy G., 2020 NY Slip Op 01228, Third Dept 2-20-20

 

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PETITION ALLEGED MOTHER FAILED TO GIVE ADHD MEDICATION TO THE CHILDREN; THE NEGLECT PETITION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING; BECAUSE FAMILY COURT ADDRESSED THE MERITS OF THE MOTION TO REARGUE THE MOTION WILL BE DEEMED TO HAVE BEEN GRANTED RENDERING THE ORDER APPEALABLE AS OF RIGHT (THIRD DEPT).

The Third Department, reversing Family Court, determined the neglect proceeding should not have been dismissed without a hearing. The petition alleged mother was not providing ADHD medication to the children and the children were unable to focus in school as a result. The Third Department noted that, although the denial of a motion to reargue is not appealable, here Family Court addressed the merits of the motion to reargue and will be deemed to have granted the motion:

Although, generally, no appeal lies from an order denying a motion to reargue, where “the court actually addresses the merits of the moving party’s motion, we will deem the court to have granted reargument and adhered to its prior decision — notwithstanding language in the order indicating that reargument was denied” … . Considering that Family Court scheduled and heard oral argument on the motion to reargue and, thereafter, issued a decision addressing the merits, we deem the court to have granted reargument, such that the December 2018 order adhering to the October 2018 order is appealable as of right … . …

“A parent’s unwillingness to follow a recommended course of psychiatric therapy and medication, resulting in the impairment of a child’s emotional health[,] may support a finding of neglect. However, what constitutes adequate medical care cannot be judged in a vacuum. The critical factor in this determination is whether the parent[ has] provided an acceptable course of medical treatment for [his or her] child in light of all the surrounding circumstances” … . Here, the petition and corresponding affidavit stated, among other things, that respondent failed to properly administer prescribed ADHD medication to the two oldest children and failed to bring them to scheduled doctor appointments, and that those children were struggling in school and were unable to focus because they were not receiving the proper dosage of medication. The petition states that these allegations are supported, in part, by information received from the children and their school. Petitioner further alleged its concern that respondent was either taking the children’s medication herself or selling it, along with the reasons for such concern. * * *

Despite the lack of allegations in the petition directly concerning the youngest child, the petition’s allegations could support a finding of derivative neglect of that child. Matter of Aydden OO. (Joni PP.), 2020 NY Slip Op 01232, Third Dept 2-20-20

 

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CHILD WAS ASLEEP DURING THE INCIDENT INVOLVING FATHER, NEGLECT FINDING REVERSED (FIRST DEPT).

The First Department, reversing Family Court, determined the evidence did not support finding father had neglected the child. The child was asleep during the incident:

The Family Court’s finding that the father neglected the subject child lacks a sound and substantial basis in the record because a preponderance of the evidence does not demonstrate that the child’s physical, mental or emotional condition was impaired or in danger of becoming impaired, or that the actual or threatened harm to the child was a consequence of the father’s failure to exercise a minimal degree of care in providing her with proper supervision or guardianship during the February 14, 2016 incident …  Although the mother’s and the father’s fact-finding testimony established that the child was in the home when the incident occurred, petitioner failed to establish a prima facie case of neglect because their testimony also established that the child was sleeping in another room in the apartment and was unaware of what occurred, which testimony was supported by the testimony of the responding police officer … . Matter of K. S. (Dyllin S.), 2020 NY Slip Op 00979, First Dept 2-11-20

 

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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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