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THE FAMILY OFFENSE PETITION DID NOT ALLEGE ALL THE ELEMENTS OF HARASSMENT SECOND DEGREE AND WAS PROPERLY DISMISSED (FOURTH DEPT).

The Fourth Department determined the portion of the family-offense petition which charged harassment in the second degree was properly dismissed because it did not allege all the elements of the offense:

A person commits harassment in the second degree under Penal Law § 240.26 (3) when he or she, “with intent to harass, annoy or alarm another person[,] engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose” … . Thus, “[t]o be viable under the circumstances here, the [petition was] required to allege that respondent[, inter alia,] engaged in a course of conduct that did alarm or seriously annoy petitioner and the conduct served no legitimate purpose” … . Although the petition before us accuses respondent of engaging in a course of conduct that annoyed and alarmed petitioner, nowhere does it allege that respondent’s alleged course of conduct “serve[d] no legitimate purpose” (§ 240.26 [3]). Thus, the petition does not adequately plead an allegation that respondent committed harassment in the second degree under section 240.26 (3), and the court therefore properly dismissed the petition to that extent … . Matter of Rohrback v Monaco, 2019 NY Slip Op 04851, Fourth Dept 6-14-19

 

PETITIONER HAD AN EXTRAMARITAL AFFAIR WITH MOTHER WHO REMAINS MARRIED, PETITION FOR GENETIC TESTING PROPERLY DENIED BASED UPON THE PRESUMPTION OF LEGITIMACY AND THE BEST INTERESTS OF THE CHILD (THIRD DEPT).

The Third Department determined Family Court properly denied the petitioner’s request for genetic testing, citing the presumption of legitimacy and the best interests of the child. Petitioner had an extramarital affair with mother, who remains married:

The testimony at the hearing established that respondents were married at all relevant times, including when the child was conceived and when the child was born. The husband was present at the child’s birth and was named on the child’s birth certificate as the father. Since the birth of the child, who was three years old at the time of the hearing, it is undisputed that the husband has taken an active role as a parent and has developed a strong and loving bond with the child … . The mother testified that she believes the husband to be the child’s biological father and, to date, the husband is the only father that the child has known. Although petitioner’s expert and the school social worker who testified on respondents’ behalf disagreed on the ultimate question of whether genetic testing should be performed, petitioner’s expert specifically qualified his recommendation, stating that, although he believed genetic testing should be performed, he “would not want that to suddenly mean that the child has to find [the results] out” and opined that, to do so at such a young age, would be “ill-advised” and that any such revelation should occur sometime “within [10] years” and “before puberty,” with the aid of “counseling or consultation.” Meanwhile, the social worker opined that, given the child’s young age, it would be confusing, traumatic and potentially disruptive to his development and ability to form proper attachments throughout the rest of his life should such information be revealed at the present time. Family Court also appropriately considered the hostility that petitioner harbors toward respondents in determining that granting petitioner’s application would only serve to create uncertainty and unnecessarily disrupt the child’s otherwise stable, loving and established family dynamic … . Matter of Mario WW. v Kristin XX., 2019 NY Slip Op 04798, Third Dept 6-13-19

 

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UNLESS THE PARTIES OPT OUT BY STIPULATION, A CHILD SUPPORT ORDER MAY BE MODIFIED WITHOUT A DEMONSTRATION OF A SUBSTANTIAL CHANGE IN CIRCUMSTANCES IF A PARTY’S INCOME INCREASES BY 15 % OR MORE AND THREE YEARS HAVE PASSED SINCE THE LAST ORDER (SECOND DEPT).

The Second Department noted that a court can modify child support without a substantial change of circumstances where a party’s income has increased by 15% or more and three years have passed since the last support order:

Section 451 of the Family Court Act allows a court to modify an order of child support, without requiring a party to allege or demonstrate a substantial change in circumstances, where (1) either party’s gross income has changed by 15% or more since the order was entered or modified, or (2) three years or more have passed since the order was entered, last modified, or adjusted (see Family Ct Act § 451[3][b][i]; Domestic Relations Law § 236[B][9][b][2][ii] …). The statutory grounds are not available in the event that the parties specifically opt out of that statutory provision in a validly executed stipulation (see Family Ct Act § 451[3][b]). In this case, the parties, in their stipulation, did not opt out of that statutory provision. Thus, the increase in the father’s gross income of more than 15% was sufficient, by itself, to permit the Family Court to modify his child support obligation … . .Matter of Regan v Regan, 2019 NY Slip Op 04702, Second Dept 6-12-19

 

COURTS HAVE THE DISCRETION TO DECLINE TO IMPUTE INCOME TO A PARENT WHO HAS VOLUNTARILY REDUCED HIS OR HER INCOME FOR A COMPELLING REASON, HERE, ALTHOUGH FATHER TOOK A LOWER PAYING JOB IN NORTH CAROLINA BECAUSE HIS WIFE TOOK A HIGHER PAYING JOB IN NORTH CAROLINA, FATHER’S CHILD SUPPORT OBLIGATION WAS NOT REDUCED, RATHER THE COURT IMPUTED A PORTION OF THE WIFE’S NEW HIGHER INCOME TO KEEP FATHER’S OBLIGATION AT THE SAME LEVEL (FOURTH DEPT).

The Fourth Department determined the court had the discretion to reduce father’s child support payments, even though father voluntarily took a lower paying job in North Carolina where his wife had found a job which increased her income by $30,000. The court’s conclusion it did not have the authority to reduce father’s child support obligation in this circumstance was itself deemed an abuse of discretion by the Fourth Department. However the Fourth Department didn’t change father’s obligation, rather it imputed some of the wife’s new higher income to the father:

… [C]ourts may decline to impute income when a parent has a voluntary reduction in income and a legitimate and reasonable basis for such a reduction … . Indeed, the general rule that “a parent who voluntarily quits a job will not be deemed without fault in losing such employment . . . should not be inflexibly applied where a parent quits a job for a sufficiently compelling reason” … . …

We thus agree with the father that the court erred when it stated that it was not permitted to reduce the father’s child support obligation even if his decision to take a lower-paying job was reasonable. …

It was undisputed that the entire reason the father left his higher-paying job in New York was so that his wife could accept a higher-salaried position in North Carolina, which resulted in a net increase in the income of his new family unit. Inasmuch as the father’s voluntary decision to leave his lucrative position for a lesser-paying position “unquestionably improved [his overall] financial condition” … , we conclude that we may impute some portion of the wife’s higher salary to the father … . Matter of Montgomery v List, 2019 NY Slip Op 04560, Fourth Dept 6-7-19

 

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THE QUALIFIED DOMESTIC RELATIONS ORDER (QDRO) OBTAINED BY STIPULATION OF SETTLEMENT MUST BE ENFORCED AS WRITTEN, BECAUSE NO PROVISION WAS MADE FOR GAINS OR LOSSES AFTER THE DIVORCE PROCEEDINGS COMMENCED, SUPREME COURT SHOULD NOT HAVE TRANSFERRED THE AGREED AMOUNT PLUS THE GAINS THAT HAD ACCRUED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the qualified domestic relations order (QDRO) obtained pursuant to a stipulation of settlement must be enforced as written. Because the stipulation made no provision for the transfer of gains which accrued after the divorce action started, Supreme Court erred by transferring the agreed amount plus the gains:

“A QDRO obtained pursuant to a [stipulation of settlement] can convey only those rights which the parties [agreed to] as a basis for the judgment’ ” … . Thus, “a court errs in granting a domestic relations order encompassing rights not provided in the underlying stipulation” … . A stipulation of settlement that is incorporated, but not merged, into the judgment of divorce ” is a contract subject to the principles of contract construction and interpretation’ ” … . If the stipulation of settlement is ” complete, clear, and unambiguous on its face[, it] must be enforced according to the plain meaning of its terms’ ” … . Here, the stipulation of settlement clearly and unambiguously made no provision for plaintiff to receive gains or losses on the amount that the stipulation of settlement specified would be transferred to her. Thus, plaintiff is not entitled to any gains on that amount that accrued after the divorce action commenced … . Reber v Reber, 2019 NY Slip Op 04557, Fourth Dept 6-7-19

 

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THE EVIDENCE DID NOT SUPPORT THE FINDING THAT FATHER ABANDONED THE CHILD, THE PERMANENT NEGLECT FINDING, HOWEVER, WAS SUPPORTED BY THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Family Court determined the evidence did not support the finding that father abandoned the child, but the evidence did support a finding of permanent neglect. The criteria for permanent neglect, not summarized here, are described in some depth in the decision. The matter was sent back for a dispositional hearing or a waiver of the hearing:

“An order terminating parental rights may be entered upon the ground that a child’s parent abandoned such child for the period of six months immediately prior to the date on which the petition is filed in the court’ ” … . A child is deemed abandoned “if the parent evinces an intent to forego his or her parental rights and obligations as manifested by his or her failure to visit the child and communicate with the child or agency, although able to do so and not prevented or discouraged from doing so by the agency’ ” … . “Parents are presumed able to visit and communicate with their children and, although incarcerated parents may be unable to visit, they are still presumed able to communicate with their children absent proof to the contrary” … .

Here, the record establishes that the father—following up on a prior attempt to establish paternity that he had initially failed to adequately pursue—definitively established his paternity, while incarcerated, less than two months into the six-month period preceding the filing of the petition … . Thereafter, throughout the relevant period, the father initiated communications with the child’s caseworker; sent the caseworker at least four letters inquiring about the child and included a card and drawing for the child in at least one of those letters; and participated in a service plan review. We conclude that the father’s contacts “were not minimal, sporadic, or insubstantial” … . Matter of Jarrett P. (Jeremy P.), 2019 NY Slip Op 04609. Second Dept 6-7-19

 

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WHEN A PARTY’S ATTORNEY APPEARS THE PARTY IS NOT IN DEFAULT AND MAY THEREFORE APPEAL, FAMILY COURT SHOULD NOT HAVE AWARDED CUSTODY TO NONPARENTS ABSENT A HEARING DEMONSTRATING EXTRAORDINARY CIRCUMSTANCES AND THE BEST INTERESTS OF THE CHILD (FOURTH DEPT).

The Fourth Department determined mother was not in default, because her attorney had appeared, and therefore mother can appeal the award of custody to the nonparent petitioners. The Fourth Department further determined Family Court should have held a hearing to determine whether extraordinary circumstances justified awarding custody to nonparents. The prior consent order of custody in favor of the nonparents does not demonstrate extraordinary circumstances:

“A parent’s right to be heard on a matter of child custody is fundamental and not to be disregarded absent a convincing showing of waiver’ ” … . Moreover, “[i]t is well established that, as between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances” … and further establishes that an award of custody to the nonparent is in the best interests of the child … . “The burden of proving extraordinary circumstances rests on the nonparent, and the mere existence of a prior consent order of custody in favor of the nonparent is not sufficient to demonstrate extraordinary circumstances”… . Inasmuch as the court erred in depriving the mother of custody without conducting the requisite evidentiary hearing … , we reverse and remit the matter to Family Court for a hearing on the custody petition. Matter of Hilton v Hilton, 2019 NY Slip Op 04572, Fourth Dept 6-7-19

 

THE 3RD DEPARTMENT, REVERSING FAMILY COURT, DETERMINED IT WAS IN THE BEST INTERESTS OF THE CHILD (BORN 2003) TO ORDER A DNA TEST FOR PETITIONER, IN PART BECAUSE NOT KNOWING WHO HER BIOLOGICAL FATHER IS IS A SOURCE OF TURMOIL (THIRD DEPT).

The Third Department, reversing Family Court, determined it was in the child’s best interests that petitioner undergo a paternity test:

In light of [the] evidence, as well as evidence revealed at the Lincoln hearing, we disagree with Family Court’s determination that equitable estoppel applies and find that it is in the child’s bests interests for DNA testing to occur. The record is clear that the child understands that William P. is her “legal” father and that there is a significant chance that petitioner is her biological father. Although testing could possibly impact the child’s relationship with William P., the record reveals that this relationship is already tumultuous and that some of this tumult may stem from the child’s uncertainty as to whether petitioner is in fact her biological father. Indeed, it is evident from the record that if the child learns that William P. is her biological father, this information would positively benefit their relationship. The record also reveals that communication between petitioner and the child has occurred, possibly in violation of a court order, but that communication nevertheless occurred and it has had a clear effect on the child that cannot be mitigated by refusing to order a DNA test. In fact, DNA testing can mitigate the turmoil in the child’s life that presently exists because she does not know who her biological father is. Although we are certainly mindful of the inherent inequities in allowing a DNA test to occur given the child’s age [born 2003], our analysis must turn exclusively on the best interests of the child … . To that end, we are also mindful that, if petitioner is found to be the child’s biological father, given his lengthy incarceration, the child will not be able to enjoy a “traditional” parent-child relationship with him. However, petitioner and the child would be able to communicate by way of letters, telephone contact and potentially through visitation at the prison. Matter of Stephen N. v Amanda O., 2019 NY Slip Op 04510, Third Dept 6-6-19

 

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INSUFFICIENT EVIDENCE OF NEGLECT AND DERIVATIVE NEGLECT FOR FAILURE TO PROVIDE ADEQUATE FOOD, CLOTHING AND SHELTER; EVIDENCE SUPPORTED EDUCATIONAL NEGLECT AND DERIVATIVE NEGLECT, DESPITE MOTHER’S HOME-SCHOOLING EFFORTS, TWO-JUSTICE DISSENT (FIRST DEPT). ​

The First Department reversed Family Court’s finding of neglect and derivative neglect for failure to provide adequate food, clothing and shelter, The evidence, i.e., the caseworker’s progress notes and the testimony of a police officer based upon a single visit, was deemed insufficient. However, the majority, over a two-justice dissent, found the evidence of educational neglect and derivative neglect sufficient. The older children were not attending school, but the college-educated mother was home-schooling them:

Although the mother’s living conditions were unsuitable, the record presents no basis for a conclusion that the children’s “physical, mental or emotional condition ha[d] been impaired or [wa]s in imminent danger of becoming impaired” as a result of their exposure to such environment (Family Court Act § 1012[f][i]). The officer’s testimony provided no information about the physical or mental condition of the children at the time of her visit, and petitioner did not introduce the results of the medical examination of the children conducted on the day when they were first removed from the home. …

The court found that the mother did not establish that she was qualified to teach, especially with respect to elementary-school-aged children. The mother admitted that she knew her educational plan was not approved by the Board of Education, yet, she never followed up with an approved individual home instruction plan as required by the Board of Education. The court found that the mother failed to show that her instruction was substantially equivalent to that in public school, and that the children were educated for at least as many hours as provided in public school … . The court further found that the mother’s use of college-level textbooks and testing the children using high school examination tests did not constitute appropriate education for elementary-school-aged children. We defer to these findings of the Family Court.  Matter of Puah B. (Autumn B.–Hemerd B.), 2019 NY Slip Op 04451, First Dept 6-6-19

 

INHERITED PROPERTY WHICH HAD BEEN COMMINGLED WITH MARITAL PROPERTY SHOULD HAVE BEEN TREATED AS MARITAL PROPERTY AND DIVIDED EQUALLY (SECOND DEPT).

The Second Department determined in this divorce action that the inherited property which was commingled with marital should have been considered marital property and divided equally:

The proceeds from an inheritance are separate property (see Domestic Relations Law § 236[B][1][d][1]…). However, where separate property has been commingled with marital property, for example in a joint bank account, there is a presumption that the commingled funds constitute marital property … . This presumption may be overcome by evidence that the funds were deposited into the joint account as a matter of convenience, without the intention of creating a beneficial interest … .

Here, by depositing inherited funds into accounts titled jointly with the defendant, the plaintiff created the presumption that the funds were marital … . Moreover, the plaintiff failed to rebut the presumption that the funds were transmuted into marital property, as she failed to establish that the funds were deposited into the parties’ joint accounts only as a matter of convenience without the intention of creating a beneficial interest … . Candea v Candea, 2019 NY Slip Op 04349, Second Dept 6-5-10

 

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