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SUPPORT MAGISTRATE HAD THE AUTHORITY TO VACATE MAINTENANCE ARREARS; THE FORMER HUSBAND DEMONSTRATED THE FORMER WIFE WAIVED HER RIGHT TO MAINTENANCE PAYMENTS 16 YEARS BEFORE THE PETITION WAS BROUGHT (SECOND DEPT).

The Second Department, reversing Family Court, determined the former husband’s (appellant’s) objection to the support magistrate’s order that appellant pay maintenance arrears should have been granted. The support magistrate had terminated the former wife’s (respondent’s) right to maintenance payments but held she did not have the authority to vacate the arrears. The Second Department held respondent had waiver her right to maintenance payments years before and appellant was not obligated to pay the arrears:

… [P]ursuant to Domestic Relations Law § 236(B)(9)(b), a prior judgment or order as to maintenance may be modified or annulled after the accrual of such arrears where “the defaulting party shows good cause for failure to make an application for relief from the judgment or order directing payment prior to the accrual of such arrears” … . …

The appellant demonstrated that in June 2001, the respondent waived her right to receive maintenance payments … . “A valid waiver requires no more than the voluntary and intentional abandonment of a known right which, but for the waiver, would have been enforceable'” … . “It may arise by either an express agreement or by such conduct or failure to act as to evince an intent not to claim the purported advantage” … . Here, the evidence adduced at the hearing demonstrated that after the appellant stopped paying maintenance beginning in June 2001 pursuant to the parties’ alleged oral agreement, the respondent did not make any written demands or otherwise move to enforce the maintenance provision of the parties’ judgment of divorce for a period of more than 16 years. Although a waiver “is not created by negligence, oversight, or thoughtlessness, and cannot be inferred from mere silence” … , the respondent’s conduct evinced an intent by her to abandon her right to maintenance payments and supported the appellant’s claim that she had orally agreed to terminate his maintenance obligation in June 2001 … . Matter of Makris v Makris, 2020 NY Slip Op 00139, Second Dept 1-8-20

 

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ALTHOUGH THE CHILD WAS 17 AND HAD A LONG STANDING PARENT-CHILD RELATIONSHIP WITH MOTHER’S HUSBAND, THE DOCTRINE OF EQUITABLE ESTOPPEL SHOULD NOT HAVE BEEN APPLIED TO DISMISS MOTHER’S PETITION FOR GENETIC MARKER TESTING TO DETERMINE PATERNITY; THE CHILD WAS AWARE FROM A YOUNG AGE THAT THE PUTATIVE FATHER WAS THE CHILD’S BIOLOGICAL FATHER AND THERE WAS NO SHOWING THE PATERNITY PETITION WAS NOT IN THE CHILD’S BEST INTERESTS (SECOND DEPT).

The Second Department, reversing Family Court, determined the doctrine of equitable estoppel should not have been applied to dismiss mother’s petition for a genetic marker test to determined paternity. The petition was brought when the child was 17 and the child was aware at a young age that the putative father was in fact the child’s biological father. The child had developed a parent-child relationship with mother’s husband, who had known the child since the child was two. The equitable estoppel doctrine is applied solely in the child’s best interests which were not shown to be detrimentally affected by the paternity petition:

As the party moving for dismissal of the petition, the putative father failed to establish that the child would suffer irreparable loss of status, destruction of his family image, or other harm to his physical or emotional well-being if a genetic marker test was ordered … . Here, the record reflects that the child was told by his mother and the husband at a young age that the putative father was his biological father. “Equitable estoppel is not used to deny the existence of a relationship, but rather to protect one” … . Absent any indication that the child’s relationship with the husband needed protection from a determination as to whether the putative father was the biological father, equitable estoppel was not available to the putative father as a remedy … . Thus, under the circumstances, any lack in diligence by the mother in pursuing her earlier petitions was not a basis to estop her from seeking to establish the putative father’s paternity … . Matter of Denise R.-D. v Julio R. P., 2020 NY Slip Op 00145, Second Dept 1-8-20

 

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EVIDENCE SUPPORTED DERIVATIVE NEGLECT FINDING (SECOND DEPT).

The Second Department determined the evidence supported Family Court’s derivative neglect finding:

… [T]he evidence adduced at the fact-finding hearing established that the mother’s verbal abuse of Hannah due to an untreated mental illness demonstrated such an impaired level of parental judgment as to create a substantial risk of harm to Samuel. Hannah testified that the mother threw things at her and instructed her brothers, including Samuel, to hit her when the mother became frustrated with her. According to Hannah, after these proceedings were commenced, the mother told Hannah that Hannah would be placed in a mental institution and raped in the petitioner’s custody, told Hannah that the mother would pretend Hannah was dead and burn Hannah’s clothes, and threatened to kill Hannah once the case was over. The mother’s conduct caused Hannah to fear the mother and her brothers. This evidence sufficiently supported the Family Court’s conclusion that the mother derivatively neglected Samuel, as it demonstrated that the mother had such an impaired level of parental judgment as to create a substantial risk of harm to the well-being of Samuel … . Matter of Samuel A. R. (Soya R.), 2020 NY Slip Op 00144, Second Dept 1-8-20

 

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SENTENCE WHICH INCLUDED BOTH JAIL TIME AND PROBATION FOR VIOLATION OF A CHILD SUPPORT ORDER IS ILLEGAL; AN ILLEGAL SENTENCE IS APPEALABLE WITHOUT PRESERVATION OF THE ERROR (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the imposition of a jail sentence and probation for father’s failure to pay support in violation of a court order was illegal. An illegal sentence is appealable without preservation of the error:

Although the father failed to preserve his challenge to the legality of his sentence, a challenge to an unlawful sentence is not subject to the preservation rule … . Family Court Act § 454 expressly delineates the authority of the Family Court to impose either probation or a term of incarceration upon a finding of a willful violation of an order of support, not both (… Family Court Act § 454[3]). Thus, the Family Court was without authority to impose both a jail term and probation (see Family Court Act § 454[3] …). Since the father completed his 90-day term of incarceration, that portion of his sentence imposing probation must be vacated … . Matter of Lopez v Wessin, 2020 NY Slip Op 00137, Second Dept 1-8-20

 

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NEITHER NEW YORK NOR PENNSYLVANIA IS THE HOME STATE OF THE CHILD IN THIS CUSTODY CASE; NEW YORK HAS JURISDICTION BECAUSE OF THE CHILD’S CONNECTIONS TO THE STATE; FAMILY COURT REVERSED (SECOND DEPT). ​

The Second Department, reversing Family Court, determined neither New York nor Pennsylvania was the “home state” of the child under the statutes and, under the circumstances, New York has jurisdiction to make an initial custody determination:

… [A]lthough the child was living in New York for six consecutive months immediately before this proceeding was commenced, he was not living with a parent in this state for that time period, because the mother did not move to New York until January 2018. Moreover, the maternal great grandmother was not a “person acting as a parent,” as that term is defined by statute, because she had not been awarded legal custody of the child by a court and did not claim a right to legal custody of the child … . …

Pennsylvania did not have jurisdiction over the matter. Pennsylvania also did not qualify as the home state of the child, since the child had been living in New York for more than six months prior to the commencement of the proceeding (see Domestic Relations Law § 76[1][a] …). Thus, the child did not have a home state at the time of commencement. In such a case, New York may exercise jurisdiction if “(i) the child . . . and at least one parent . . . have a significant connection with this state other than mere physical presence; and (ii) substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships” (Domestic Relations Law § 76[1][b] …).

The record demonstrates the child’s and the mother’s significant connection with New York, as well as the availability of substantial evidence in this state, which is where the child and the mother continue to reside with the maternal great grandmother, and where the child is enrolled in school and is seen by a pediatrician … . Matter of Defrank v Wolf, 2020 NY Slip Op 00126, Second Dept 1-8-20

 

HUSBAND DID NOT DEMONSTRATE ENTITLEMENT TO 50% OF THE APPRECIATION OF WIFE’S SEPARATE PROPERTY IN THIS DIVORCE ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court in this divorce action, determined 50% of the appreciation of the wife’s separate property should not have been distributed to the husband:

The court improperly distributed 50% of the appreciation of the wife’s separate real property because the husband failed to establish his entitlement to it. The husband argues that he is entitled to 50% of the appreciation of the property on the ground that he actively contributed toward the renovations of the property. However, the husband fails to provide any nexus between his alleged contributions and the property’s appreciation in value. The husband relies on the testimony of a city tax assessor, who testified only as to the property’s passive appreciation, specifically, that the property appreciated in value based on comparative sales in the area, and did not testify that any appreciation in value was due to the renovations done to the property. Indeed, the assessor could not have testified as to whether the property appreciated due to the renovations because he never entered the property to view any of the renovations and he did not take such renovations into account when making his assessment. Gordon v Anderson, 2020 NY Slip Op 00034, First Dept 1-2-20

 

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FATHER’S VISITATION SHOULD NOT HAVE BEEN SUBJECT TO MOTHER’S CONSENT; ATTORNEY FOR THE CHILD SHOULD NOT HAVE REFERRED TO EVIDENCE TAKEN IN THE LINCOLN HEARING IN THE APPELLATE BRIEF; THE HEARING TRANSCRIPTS ARE SEALED AND CONFIDENTIAL (THIRD DEPT). ​

The Third Department, modifying Family Court, determined father’s visitation rights should not have been made subject to mother’s consent and the attorney for the child should not have referred to the Lincoln hearing in the appellate brief:

Although the order provides the father with the opportunity for frequent and regular unsupervised access, the provision conditioning expansion of visitation to include overnight visitation only upon the mother’s consent is an impermissible delegation of authority … . …

… [W]e note our displeasure that the attorney for the children made repeated references to the Lincoln hearing in the appellate brief that he submitted on their behalf … . Family Court’s promise of confidentiality should not be lightly breached, and these transcripts are sealed. We again emphasize that “[t]he right to confidentiality during a Lincoln hearing belongs to the child and is superior to the rights or preferences of the parents. Children whose parents are engaged in custody and visitation disputes must be protected from having to openly choose between parents or openly divulging intimate details of their respective parent/child relationships” … . We further note that the breach of the confidentiality of the Lincoln hearing — and of the trust of the children — was exacerbated by the fact that the attorney for the children made certain representations about the children’s testimony that were inconsistent with their statements during the hearing. Matter of Ellen TT. v Parvaz UU., 2019 NY Slip Op 09328, Third Dept 12-26-19

 

BY STATUTE FAMILY COURT MAY NOT SET A GOAL OF ADOPTION BY SOCIAL SERVICES WITHOUT ORDERING THE FILING OF A PETITION TO TERMINATE PARENTAL RIGHTS; HERE FAMILY COURT ATTEMPTED TO SET THE INCOMPATIBLE GOALS OF ADOPTION AND REUNIFICATION WITH THE PARENT; THE INTENT OF FAMILY COURT IS CLEAR (HOPED-FOR REUNIFICATION) BUT THERE IS NO STATUTORY AUTHORITY FOR THE METHOD CHOSEN BY THE COURT (THIRD DEPT).

The Third Department, reversing Family Court, determined that the goals set by Family Court, moving toward adoption of the child while setting another hearing to see if reunification of the child with mother is possible, were incompatible under the statutes. The intent of Family Court was clear, but the method was not allowed by statute. The matter was sent back for further proceedings:

… [W]e find that Family Court erred in modifying the permanency goal to placement for adoption without directing petitioner to commence a proceeding to terminate respondent’s parental rights. Family Ct Act § 1089 (d) (2) (i) provides that a court may impose one of five specified permanency goals, including “placement for adoption with the local social services official filing a petition for termination of parental rights” … . Nothing in the statutory language permits a permanency goal of placement for adoption to be imposed in the absence of a concurrent petition to terminate the respondent’s parental rights. Further, the statute does not permit “the court [to] select and impose on the parties two or more goals simultaneously” … .

Here, in addition to stating that the permanency goal was being changed to placement for adoption and that no immediate termination proceeding would be commenced, Family Court also stated that another permanency hearing would be scheduled in six months and that it was the court’s “expectation and hope” that the goal could be changed back to reunification at that time. The express language of the permanency order imposes only one goal. However, the effect of the failure to commence termination proceedings and the court’s directions to petitioner regarding services and diligent efforts was to impose two concurrent, contradictory goals of placement for adoption and reunification. Matter of Joseph PP. (Kimberly QQ.), 2019 NY Slip Op 09347, Third Dept 12-26-19

 

FORMER SAME SEX PARTNER WHO AGREED TO THE CONCEPTION OF A CHILD CARRIED BY HER FORMER PARTNER DEMONSTRATED SHE HAD STANDING AS A PARENT TO SEEK PARENTING TIME WITH THE CHILD (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Garry, determined that petitioner, who participated in the conception of the child (by artificial insemination) carried by her then same-sex partner, was a “parent” entitled to visitation (parenting time) with the child pursuant to Matter of Brooke S.B. v Elizabeth A.C.C. (28 NY3d 1 [2016]):

… [T]he parties agreed to conceive a child using artificial insemination. Both parties attended appointments with a fertility doctor. In testimony that Family Court found to be credible, petitioner stated that she and respondent agreed to select a sperm donor who would reflect petitioner’s ethnic background. There were two inseminations; petitioner was present and injected the sperm on at least one of these occasions. Petitioner’s credit card was used to pay the related expenses. …  Petitioner attended at least one baby shower where friends and family members of both parties were present. Petitioner attended respondent’s prenatal appointments, was present when the child was born, and cut the child’s umbilical cord. The child was given two last names, reflecting the parties’ two surnames. … Petitioner testified that the child was named, in part, after petitioner’s mother. Petitioner assisted in buying items for the child and shared day-care costs with respondent. The two parties are listed as the child’s two mothers in some of her medical and immunization records. Respondent testified that she told petitioner that the child would be part of petitioner’s life if they continued to reside together and also if they separated, so long as petitioner did not engage in illegal activities, but that if petitioner did so engage, she would not have a role in the child’s life.

Upon this record, we find that Family Court correctly determined that petitioner falls within the statutory definition of a parent and, thus, has standing in this proceeding. Contrary to respondent’s argument, Family Court did not err in applying the conception test to determine petitioner’s standing rather than a “functional” test that would have examined the relationship between petitioner and the child after the child’s birth … . The evidence fully establishes that the parties planned jointly for the child’s conception, participated jointly in the process of conceiving the child, planned jointly for her birth, and planned to raise her together. Accordingly, petitioner satisfied her burden to prove by clear and convincing evidence that she and respondent entered into an agreement to conceive the child and raise her as co-parents. Thus, she established her standing to seek custody and parenting time under the conception test without regard to her subsequent relationship with the child … . Matter of Heather NN. v Vinnette OO., 2019 NY Slip Op 09325, Third Dept 12-26-19

 

COURT SHOULD NOT HAVE AWARDED PLAINTIFF WIFE $25,000 AS AN INTEREST IN HER HUSBAND’S MBA DEGREE; MARITAL ASSETS WERE USED TO PROCURE THE DEGREE AND THE COST OF THE DEGREE IS NOT A PROPER BASIS FOR SUCH AN AWARD (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff wife in this divorce action should not have been awarded $25,000 for her interest in her husband’s MBA degree:

At the time that this action was commenced, an academic degree earned during a marriage constituted marital property subject to equitable distribution ( … cf. Domestic Relations Law § 236[B][5][d][7]). The value of a degree is measured by the present value of the enhanced earning capacity which it affords the holder … . The nontitled spouse is required to establish the value of the enhanced earning capacity and demonstrate that the nontitled spouse made a substantial contribution to the acquisition of the degree … . Here, the Supreme Court awarded the plaintiff $25,000, not based on the value of the defendant’s enhanced earning capacity, but rather on its determination of the cost of the acquisition of the MBA degree. The utilization of marital funds for the acquisition of the defendant’s MBA degree was a choice made by the parties during the course of the marriage that should not be second-guessed once the marriage has ended … . Furthermore, the plaintiff failed to establish the actual value of the defendant’s enhanced earning capacity … , and the court declined to award the defendant any distribution of the plaintiff’s master’s degree, which was also earned during the marriage. Accordingly, we modify the judgment by deleting the provision awarding the plaintiff $25,000 as and for her interest in the defendant’s MBA degree. Ospina-Cherner v Cherner, 2019 NY Slip Op 09276, Second Dept 12-24-19

 

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