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ALTHOUGH THE JUDGMENTS WERE DOCKETED, THE DEBTOR’S NAME WAS MISSPELLED RENDERING THE LIEN INVALID; ALTHOUGH THE ISSUE WAS NOT RAISED BELOW, THE APPELLATE COURT CAN CONSIDER AN ISSUE OF LAW WHICH COULD NOT BE AVOIDED IF IT HAD BEEN RAISED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judgment creditor, Fischer, was not entitled to priority over the respondent wife, Mayrav, who had been awarded real property owned with her husband, Julius, in divorce proceedings. Although Fisher’s judgments were docketed, Julius’s surname was spelled incorrectly, rendering the lien invalid. Although this issue had not been raised below, the appellate court can address it because it is a question of law which could not have been avoided if it had been raised:

“CPLR 5203(a) gives priority to a judgment creditor over subsequent transferees with regard to the debtor’s real property in a county where the judgment has been docketed with the clerk of that county” ( … see CPLR 5203[a]). Pursuant to CPLR 5018(c), a judgment is docketed when the clerk makes an entry “under the surname of the judgment debtor . . . consist[ing] of . . . the name and last known address of [the] judgment debtor” … . “A judgment is not docketed against any particular property, but solely against a name” … . ” Once docketed, a judgment becomes a lien on the real property of the debtor in that county'” … .

… [I]t is undisputed that when the judgments were docketed, Julius’s surname was spelled incorrectly. Because the judgments were not docketed under the correct surname, no valid lien against Julius’s interest in the subject property was created … . Therefore, Fischer was not entitled to a determination that his interest in the subject property was superior to that of Mayrav, whose interest “vest[ed] upon the judgment of divorce” … . Although Mayrav failed to argue in the Supreme Court that Fischer did not have a valid lien on the subject property in light of the undisputed fact that Julius’s surname was misspelled, that issue can be raised for the first time on appeal because it is one of law which appears on the face of the record and could not have been avoided if it had been raised at the proper juncture … . Accordingly, that branch of the petition which sought a determination that Fischer’s interest in the subject property was superior to that of Mayrav should have been denied. Matter of Fischer v Chabbott, 2019 NY Slip Op 09002, Second Dept 12-18-19

 

MOTHER ALLEGED SHE MADE PAYMENTS TO THIRD PARTIES IN THIS SUPPORT ENFORCEMENT PROCEEDING; FATHER SHOULD NOT HAVE BEEN ORDERED TO REIMBURSE MOTHER WITHOUT PROOF THE PAYMENTS WERE IN FACT MADE BY MOTHER (SECOND DEPT).

The Second Department, reversing Family Court, determined, in this support proceeding, father’s objections should have been granted. Although mother alleged she made payments to third parties, she presented no proof of the payments. Therefore mother did not prove father owed those amounts to her:

At a support violation hearing, the petitioner has the initial burden of presenting prima facie evidence of nonpayment of child support … . Here, the father’s concession of failure to pay child support constituted prima facie evidence of a violation … . However, a party seeking reimbursement must show that he or she actually paid the sums for which reimbursement is sought  … . Since the amount of child support arrears awarded included amounts that the mother claimed to have paid to third parties, and the father did not concede those amounts, the mother was not entitled to a money judgment in the absence of proof that she paid the subject sums, which would demonstrate that the father was indebted to her for those expenses … . Matter of Barletta v Faden, 2019 NY Slip Op 08998, Second Dept 12-18-19

 

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COURT-APPROVED CUSTODY AND PARENTAL ACCESS STIPULATION SHOULD NOT HAVE BEEN MODIFIED WITHOUT A HEARING; UPON REMITTAL AN ATTORNEY FOR THE CHILD SHOULD BE APPOINTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court should not have modified a court-approved stipulation relating to custody and parental access without a hearing. And the Second Department ordered that an attorney for the child be appointed upon remittal:

“Modification of a court-approved stipulation setting forth terms of custody or [parental access] is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the best interests and welfare of the child” … . The best interests of the child are determined by a review of the totality of the circumstances  … . “Where . . . facts essential to the best interests analysis, and the circumstances surrounding such facts, remain in dispute, a hearing is required” … .

In view of the parties’ disputed factual allegations in this case, the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff’s motion which was to modify the stipulation of custody so as to award him final decision-making authority with respect to the child without a hearing to determine whether an award of final decision-making authority to the plaintiff was in the best interests of the child … . Furthermore, under the circumstances of this case, the interests of the child should be independently represented … . Walter v Walter, 2019 NY Slip Op 09056, Second Dept 12-18-19

 

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RESPONDENT IN THIS CUSTODY AND VISITATION PROCEEDING TO DETERMINE WHETHER SHE HAS STANDING TO ASSERT PARENTAL RIGHTS IS ENTITLED, PURSUANT TO DOMESTIC RELATIONS LAW 237, TO ATTORNEY’S FEES PAID BY THE “MORE MONIED” PETITIONER; RESPONDENT WAS PROPERLY CONSIDERED TO BE A “PARENT” WITHIN THE MEANING OF DOMESTIC RELATIONS LAW 237 FOR THE NARROW PURPOSE OF ENTITLEMENT TO ATTORNEY’S FEES AT THIS PRELIMINARY STAGE OF THE PROCEEDINGS (FIRST DEPT).

The First Department, in a matter of first impression, held that respondent in this custody proceeding was properly considered to be a parent for the narrow purpose of awarding attorney’s fees to be paid by the “more monied” party pursuant to Domestic Relations Law 237. The issue whether respondent has standing to assert parental rights was the purpose of the underlying proceeding:

This case raises an issue of first impression for this Court, that is, whether in a proceeding to establish standing to assert parental rights in seeking visitation and custody under Domestic Relations Law § 70 … , the court has discretion to direct the “more monied” party to pay the other party’s counsel and expert fees under Domestic Relations Law § 237 before that party has been adjudicated a parent. We find that it does.

Domestic Relations Law § 237(b), which is a statutory exception to the general rule that each party is responsible for her own legal fees … , provides, in relevant part, that “upon any application . . . concerning custody, visitation or maintenance of a child, the court may direct a spouse or parent to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse or parent to enable the other party to carry on or defend the application or proceeding by the other spouse or parent as, in the court’s discretion, justice requires . . . .” This statute, like Domestic Relations Law § 70, does not define the term “parent.” * * * … [W]e conclude that highly inequitable results would flow in this case from permitting the party with far greater resources to seek custody as against the child’s primary parent without allowing that parent to seek counsel fees. Without determining that she is a parent for purposes beyond the application of Domestic Relations Law § 237(b), we find that Domestic Relations Law § 237(b) must be read to permit the court to direct petitioner to pay respondent’s counsel fees as necessary “to enable [her] to. . . defend the application. . . as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties.” Matter of Kelly G. v Circe H., 2019 NY Slip Op 08961, First Dept 12-17-19

 

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SUPREME COURT SHOULD NOT HAVE MODIFIED THE PARENTAL ACCESS PROVISIONS OF THE JUDGMENT OF DIVORCE WITHOUT HOLDING A HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the parental access provisions of the judgment of divorce should not have been modified without holding a hearing:

“A party seeking a change in [parental access] or custody is not automatically entitled to a hearing, but must make an evidentiary showing sufficient to warrant a hearing” … . As a general matter, custody and parental access determinations should only be rendered after a full hearing … .However, this general right is not absolute … , and a hearing “is not necessary where the undisputed facts before the court are sufficient, in and of themselves, to support a modification of custody … .

The plaintiff made the necessary showing entitling him to a hearing regarding that branch of his motion which was to modify the parental access provisions of the judgment of divorce with respect to the child … . The record shows that there were disputed factual issues regarding the child’s best interests such that a hearing on modification of parental access was required … . Further, “[a] decision regarding child custody and parental access should be based on admissible evidence” … . Here, in making its determination, the Supreme Court relied solely on information provided at court conferences, and the hearsay statements and conclusions of the family specialist, whose opinions and credibility were untested by either party … . Katsoris v Katsoris, 2019 NY Slip Op 08833, Second Dept 12-11-19

 

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COPY OF POSTNUPTIAL AGREEMENT SHOULD NOT HAVE BEEN ADMITTED UNDER THE BEST EVIDENCE RULE; JUDGMENT OF DIVORCE REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court in this divorce action, determined a copy of the postnuptial agreement should not have been admitted pursuant to the best evidence rule:

The best evidence rule requires the production of an original writing where its contents are in dispute and sought to be proven … . The rule serves mainly to protect against fraud, perjury, and inaccuracies derived from faulty memory … . “[S]econdary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith” … . “Loss may be established upon a showing of a diligent search in the location where the document was last known to have been kept, and through the testimony of the person who last had custody of the original” … . The more important the document is to the resolution of the ultimate issue in the case, the stricter the requirement of establishing its loss … .

Here, at trial, the plaintiff merely testified that she did not possess the original postnuptial agreement and that she believed it was either lost or stolen. Given the significance of the postnuptial agreement to the issue of equitable distribution, the defendant’s allegations that his purported signature on the document was forged, and the plaintiff’s failure to adequately explain the unavailability of the original document, we disagree with the Supreme Court’s determination to admit a copy of the document into evidence … , and to incorporate the purported agreement into the judgment of divorce. Mutlu v Mutlu, 2019 NY Slip Op 08567, Second Dept 11-27-19

 

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ATTORNEY FOR THE CHILD PROPERLY AWARDED ATTORNEY’S FEES OF OVER $34,000 IN CONNECTION WITH THE APPEALS IN THIS DIVORCE CASE; HOWEVER A HEARING IS NECESSARY TO APPORTION THE FEES BETWEEN THE PARENTS (SECOND DEPT).

The Second Department determined the attorney for the child in this divorce proceeding properly made a motion seeking attorney’s fees for the appeal of the matter to the Second Department and the Court of Appeals and was properly awarded attorney’s fees of over $34,000. However, the Second Department held that a hearing was necessary to determine how the fee should be apportioned between the parents:

In this action for a divorce and ancillary relief, the Supreme Court awarded sole legal and physical custody of the parties’ minor children to the defendant, without a hearing, under the adequate relevant information standard. This Court affirmed the order … , and the plaintiff appealed to the Court of Appeals. The attorney for the children (hereinafter the AFC) opposed the plaintiff’s appeal, but proposed a new standard for the need for evidentiary hearings in custody cases. The Court of Appeals reversed this Court’s order, rejecting the adequate relevant information standard, and determined that an evidentiary hearing was required in this particular case … . …

Contrary to the plaintiff’s contention, the difference in opinion between this Court (see Matter of Plovnick v Klinger, 10 AD3d 84) and the Appellate Division, Third Judicial Department (see Redder v Redder, 17 AD3d 10), as to whether attorneys for children may be compensated directly by the children’s parents, rather than by the State, does not give rise to a constitutional claim under the equal protection clauses of the state and federal constitutions. …

… [T]he plaintiff’s motion to modify the parties’ apportionment of responsibility for the AFC’s fees should not have been decided without an evidentiary hearing. We take no position on whether the equal split between the parties was appropriate, but because the affidavits submitted by the parties provided sharply conflicting reports on the parties’ finances … and there was “no evidence in the record that the financial circumstances of the parties [had] ever been considered” … . Lee v Rogers, 2019 NY Slip Op 08559, Second Dept 11-27-19

 

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ATTORNEY FOR THE CHILD (AFC) SHOULD HAVE BEEN APPOINTED IN THIS CUSTODY MODIFICATION PROCEEDING, MATTER REMITTED (THIRD DEPT). ​

The Third Department, reversing (modifying) Family Court, determined that an attorney for the child (AFC) should have been appointed in this custody modification proceeding and remitted the matter:

… [W]e reverse and remit for further proceedings conducted with the involvement of an AFC. This Court has previously noted that the “appointment of an [AFC] in a contested custody matter remains the strongly preferred practice,” while acknowledging that “such appointment is discretionary, not mandatory” ( … see Family Ct Act § 249 [a]). We have also “emphasize[d] the contributions competent [AFCs] routinely make in contested matters; they not only protect the interests of the children they represent, they can be valuable resources to the trial court” … . While advocating for the child, an AFC may provide a different perspective than the parents’ attorneys, including through the presentation of evidence on the child’s behalf, and may “recommend alternatives for the court’s consideration” … . Even absent a request, a court may appoint an AFC on its own motion (see Family Ct Act § 249 [a]).

Family Court had appointed an AFC for this child in connection with a previous proceeding that resulted in the September 2017 stipulated order. Yet, when — less than two months after entry of that order — the parties’ relationship deteriorated significantly, Family Court inexplicably did not appoint the same or another AFC to protect the child’s interests. The lack of an AFC prejudiced the child’s interests. Matter of Marina C. v Dario D., 2019 NY Slip Op 53953, Third Dept 11-27-19

 

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THE STAY-AWAY ORDER OF PROTECTION SHOULD NOT HAVE BEEN VACATED BASED SOLELY ON A PSYCHOLOGIST’S REPORTS IN THE ABSENCE OF ANY TESTIMONY (THIRD DEPT).

The Third Department, reversing Family Court, determined that the stay-away order of protection should not have been vacated without further fact-finding. Apparently the order was vacated based upon a psychologist’s reports without any testimony:

On … the first day of a combined fact-finding hearing on both petitions, both of the psychologist’s reports were received into evidence on consent. Without any testimony being taken, respondent, joined by the attorney for the child, then moved to vacate the stay-away order of protection. Both petitioner and the mother objected, and, after taking a brief recess, Family Court issued a ruling from the bench vacating the stay-away order of protection, without explanation. …

The record shows that the stay-away order of protection was based on allegations of sexual abuse first reported by the child’s therapist and subsequently pursued by petitioner after its caseworkers interviewed the child. The petition speaks to specific acts of sexual abuse, as well as the emotional stress on the child resulting from respondent’s threatening behavior towards the mother. The decision to vacate the stay-away order of protection was made on the first day of trial and, although the psychologist’s reports were admitted into evidence, petitioner was not precluded from subpoenaing the psychologist for purposes of cross-examination. Moreover, petitioner represented that it intended to call the child’s therapist as a witness. Although we are mindful that the psychologist spoke to the therapist as a collateral source and was highly critical of the interview methods utilized by petitioner’s caseworkers, this record should have been further developed before a determination was made as to whether it was in the child’s best interests to allow respondent unsupervised, overnight parenting time. This is particularly so given respondent’s ongoing, threatening behavior towards the mother and others via text message and on social media. Matter of Andreija N. (Michael N.), 2019 NY Slip Op 53957, Third Dept 11-27-19

 

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NEW YORK DID NOT HAVE JURISDICTION OVER FATHER, A KENTUCKY RESIDENT, IN THIS DIVORCE ACTION: THE COUPLE HAD NOT LIVED TOGETHER IN NEW YORK STATE FOR 23 YEARS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined New York did not have jurisdiction over father, a Kentucky resident, in this divorce action. The couple had last lived in New York in 1995 and had resided in Kentucky from 2003 to 2015:

Assuming, without deciding, that the wife established one of the predicates for jurisdiction under CPLR 302 (b), we find that the quality and nature of the husband’s activities in New York were such that it would be unreasonable and unfair to require him to defend an action in this state. Although the parties married in New York in 1991 and resided here until 1995, they have not resided together in this state in over 23 years. From 2003 until 2015, the parties resided together in Kentucky, where, at the time of commencement of this action, the husband was employed as a university professor and the parties owned real property. With the husband’s consent, the wife moved to New York with the parties’ son  in August 2015 and, as vaguely asserted by the wife, the husband has visited them in New York. The parties have not rented or purchased a home in New York. Rather, the wife and the son have lived rent-free with the wife’s parents, with the husband providing additional financial support. In our view, the husband’s contacts with New York are insufficient to warrant the exercise of personal jurisdiction over him … .Accordingly, Supreme Court should have granted the husband’s motion to dismiss the complaint for lack of personal jurisdiction. Crosby v Crosby, 2019 NY Slip Op 08469, Third Dept 11-21-19

 

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