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AWARDING FATHER SOLE LEGAL CUSTODY DID NOT HAVE A SOUND AND SUBSTANTIAL BASIS IN THE RECORD, MOTHER’S PETITION FOR SOLE LEGAL CUSTODY SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, determined that awarding sole legal custody to father did not have a sound and substantial basis in the record and mother’s petition for sole legal custody should have been granted:

“Findings of the Family Court which have a sound and substantial basis in the record are generally entitled to great deference on appeal because any custody determination depends to a great extent on the court’s assessment of the credibility of the witnesses and the character, temperament, and sincerity of the parties”… . “However, an appellate court would be seriously remiss if, simply in deference to the finding of a trial judge, it allowed a custody determination to stand where it lacked a sound and substantial basis in the record” … .

Here, the Family Court’s determination awarding the father sole legal and physical custody of the child does not have a sound and substantial basis in the record. Contrary to the court’s conclusion, the parties had not been sharing custody of the child equally. Instead, the record reflects that the mother had been the child’s primary caregiver for the majority of his life until the court granted the father’s petition and that, at the time of the hearing, the father had the child on certain weekends. The evidence in the record also demonstrates that the court failed to take into consideration the custody arrangement in place at the time of the hearing, or even the 50/50 arrangement which was requested by the father during the proceeding.

Moreover, the record demonstrates that the mother had taken a proactive role in the child’s well being and development, developing well-thought-out plans to address the child’s issues regarding medical care, schooling, and socialization … . At the time of the hearing, the father had no concrete plans for the child’s education, medical care, or social development. Matter of Lintao v Delgado, 2019 NY Slip Op 00125, Second Dept 1-9-19

 

CALCULATION OF ENHANCED EARNING CAPACITY STEMMING FROM A DEGREE EARNED DURING MARRIAGE IN THE CONTEXT OF ALLOCATING MARITAL PROPERTY IN A DIVORCE PROCEEDING EXPLAINED (SECOND DEPT).

The Second Department determined Supreme Court property calculated the amount allocated to plaintiff wife for the enhanced earning capacity of defendant husband stemming from his MBA degree earned during the marriage:

The defendant’s MBA degree is marital property subject to equitable distribution in this case… . The value of the MBA degree is measured by the present value of the enhanced earning capacity which it affords the defendant … . The non-titled spouse is required to establish the value of the enhanced earning capacity and demonstrate that the non-titled spouse made a substantial contribution to the acquisition of the degree … .

Where a holder of an advanced degree has already embarked on his or her career and has acquired a history of actual earnings, the theoretical valuation method, which compares the average lifetime earnings of a college graduate against the average lifetime earnings of a person holding the relevant advanced degree, must be discarded in favor of a more pragmatic and individualized analysis based on the titled spouse’s remaining professional earning potential … . Actual earnings, projected over time, are a recognized proxy for the value of a person’s future earning capacity … . The valuation must be founded in economic reality … . Lynch v Lynch, 2019 NY Slip Op 00105, Second Dept 1-9-19

 

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ALLOCUTION CAST DOUBT ABOUT GUILT IN THIS JUVENILE DELINQUENCY PROCEEDING, AN EXCEPTION TO THE PRESERVATION REQUIREMENT FOR APPEAL (SECOND DEPT).

The Second Department, reversing Family Court, determined that the plea allocution was defective in this juvenile delinquency proceeding. The allocution did not support the elements of the charged offense (grand larceny fourth degree if committed by an adult) and the juvenile’s foster care planner was not questioned about the offense, a defect which cannot be waived. Although no motion to withdraw was made, the allocution cast significant doubt about guilt which constitutes an exception to the the preservation requirement for appeal:

The appellant did not move to withdraw his admission on the grounds raised on appeal … . However, this is one of the ” rare case[s] . . . where the [appellant’s] recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the [appellant’s] guilt,’ [which] fall[s] into the narrow exception to the preservation requirement”… . In addition, the appellant was not required to preserve his contention that the Family Court erred in failing to obtain an allocution from the foster care case planner, since the statutory requirement of such an allocution may not be waived … . * * *

The Family Court did not elicit any additional details concerning the incident in order to clarify how the appellant came to be in possession of the $5 such that it could be concluded that he took it from the boy’s person within the meaning of Penal Law § 155.30(5). Thus, the court “did not elicit a sufficient factual basis to support [the appellant’s] admission'” … .

In addition, the appellant’s admission was defective since his foster care case planner was present, but the Family Court failed to ascertain through allocution of the foster care case planner, as a person legally responsible for the appellant’s care, “that (a) [the appellant] committed the act or acts to which he [was] entering an admission, (b) he [was] voluntarily waiving his right to a fact-finding hearing, and (c) he [was] aware of the possible specific dispositional orders” … . Matter of Richard S., 2019 NY Slip Op 00130, Second Dept 1-9-19

 

FATHER WAS 40 MINUTES LATE FOR A HEARING, FATHER’S PETITION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s petition should not have been dismissed because he was 40 minutes late for a hearing:

… [T]he father explained that he had miscalendared the time of the hearing. Although we are sensitive to the Family Court’s interest in adhering to its time-specific calendaring process, we find that, in light of the relatively short delay, the proceedings that had already taken place on the petition, the absence of prejudice to the mother, and the public policy in favor of resolving cases on the merits, the court improvidently exercised its discretion in denying the father’s objections … . Moreover, the father showed that he had a potentially meritorious petition … . Matter of Pecoraro v Ferraro, 2019 NY Slip Op 00129, Second Dept 1-9-19

 

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EVEN THOUGH FATHER PAID WHAT HE OWED WHEN MOTHER FILED A PETITION FOR UNPAID CHILD SUPPORT, MOTHER WAS ENTITLED TO ATTORNEY’S FEES (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court improvidently exercised its discretion when it denied mother’s request for attorney’s fees. Father was in arrears but paid what was owed after mother filed a petition for the unpaid child support. Mother was entitled to attorney’s fees despite the fact that father withheld payment because of a dispute about cell phone bills and college expenses:

Pursuant to Family Court Act § 438(a), a court, in its discretion, may award reasonable attorneys’ fees in an enforcement proceeding. The denial of an award of attorneys’ fees to the mother in this case was an improvident exercise of discretion. The father paid the sum demanded for arrears in satisfying his child support obligations, but only after the mother was forced to expend attorneys’ fees to commence an enforcement proceeding. The fact that the father was engaged in a dispute over whether he should be credited for payments for cell phone expenses and college expenses paid before the entry of the parties’ judgment of divorce did not authorize him to engage in self-help by withholding child support payments that he ultimately did not dispute were due and owing. Matter of Mensch v Mensch, 2019 NY Slip Op 00126, Second Dept 1-9-19

 

FAMILY COURT SHOULD NOT HAVE DENIED INCARCERATED FATHER’S PRO SE PETITION SEEKING VISITATION BASED UPON THE EXISTENCE OF TWO ORDERS OF PROTECTION, THE FAMILY COURT ORDER OF PROTECTION, BY LAW, EXPIRED AFTER ONE YEAR, NOT WITHSTANDING A 2022 EXPIRATION DATE IN THE ORDER, AND THE ORDER OF PROTECTION IN THE CRIMINAL MATTER DID NOT PERTAIN TO THE CHILDREN (THIRD DEPT).

The Third Department, reversing Family Court, determined the incarcerated father’s petition seeking visitation with his children should not have been dismissed based upon two orders of protection. Although the Family Court order of protection, on its face, was to expire in 2022, it could not, under the law, exceed one year. The Family Court order of protection therefore expired in 2016. As for the order of protection issued in a criminal proceeding, it did not specifically pertain to the children and Family Court does not have the authority to change it:

Family Court, among other things, issued an order of protection that prohibited the father from having contact with the children … and such order expires on January 22, 2022. This expiration date, however, was not permissible. In this regard, because of the biological relationship between the father and the children, the duration of this order of protection could not exceed one year from the disposition of the matter, subject to any further extensions … . … We therefore modify the order of protection to reflect an expiration date of March 2, 2016. …

The order of protection issued in connection with petitioner’s criminal matter is likewise inapplicable. We note that Family Court generally does not have the authority to countermand the dictates of a criminal court order of protection … . That said, the order of protection issued against the father in his criminal matter did not specifically pertain to the subject children. Matter of Pedro A. v Gloria A., 2019 NY Slip Op 00010, Third Dept 1-3-19

 

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BREACH OF FIDUCIARY DUTY, FRAUD AND JUDICIARY LAW 487 ALLEGATIONS STEMMING FROM DEFENDANT LAW FIRM’S REPRESENTATION OF PLAINTIFF IN DIVORCE PROCEEDINGS DUPLICATED THE LEGAL MALPRACTICE ALLEGATIONS, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, determined that plaintiff’s legal malpractice, breach of fiduciary duty, fraud and Judiciary Law 487 causes of action against the law firm which represented her in divorce proceedings should have been dismissed. The opinion is fact-specific. The legal issues mentioned include: the breach of fiduciary duty allegations were identical to the legal malpractice allegations and therefore required the “but for” element of legal malpractice (which was missing), and the fraud and Judiciary Law 487 claims were identical and duplicated the legal malpractice allegations, requiring dismissal. Knox v Aronson, Mayefsky & Sloan, LLP,  2018 NY Slip Op 09030, First Dept 12-27-18

 

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FAMILY COURT DID NOT HAVE SUFFICIENT EVIDENCE BEFORE IT TO GRANT FATHER’S PETITION FOR CUSTODY WHEN MOTHER FAILED TO APPEAR, MOTHER’S MOTION TO VACATE THE DEFAULT ORDER SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Family Court, determined the court did not have sufficient evidence before it to grant father’s petition for custody when mother did not appear:

While the decision to grant or deny a motion to vacate a default rests in the sound discretion of the court, “default orders are disfavored in cases involving the custody or support of children, and thus the rules with respect to vacating default judgments are not to be applied as rigorously” … .

Although the mother did not demonstrate a reasonable excuse for her default in the change of custody case, she had a meritorious defense. The children have resided primarily with her, and insufficient evidence was submitted to make an informed change of circumstances determination (see Family Ct Act § 467[b][ii]) that serves the best interests of the children … .

Also, the court failed to sua sponte appoint an attorney for the children, which, based upon the insufficient evidence it had to make an informed best interests determination, would have been advisable … . Matter of Abel A. v Imanda M., 2018 NY Slip Op 09000, First Dept 12-27-18

 

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FAMILY COURT SHOULD HAVE APPOINTED A GUARDIAN FOR THE CHILD AND MADE THE FINDINGS NECESSARY FOR THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT).

The Second Department, reversing Family Court, determined that a guardian should have been appointed for the child and findings should have been made to allow the child to petition for special immigrant juvenile status (SIJS):

“When considering guardianship appointments, the infant’s best interests are paramount” … . Here, the Family Court erred in determining that the proposed guardian should not be appointed (see generally Family Ct Act § 355.5[7][d][ii]; Social Services Law § 371[7]), as it failed to base its decision on any assessment of the credibility of the witnesses at the hearing, and failed to examine the facts of the case within the context of the required best interests analysis … . …

… [T]he child is under the age of 21 and unmarried, and since we have found that the proposed guardian should have been appointed as the child’s guardian, a finding also should have been made that the child is dependent on a juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i) … .Further, based upon our independent factual review, the record supports a finding that reunification of the child with her father is not a viable option due to parental neglect … . Matter of Grechel L.J., 2018 NY Slip Op 08934, Second Dept 12-26-18

 

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FAMILY COURT SHOULD HAVE FOUND BISHME’S DAUGHTER TO HAVE BEEN DERIVATIVELY ABUSED AND NEGLECTED BASED UPON BISHME’S ABUSE AND NEGLECT OF ANOTHER CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined that the derivative abuse and neglect petition against Bishme A. should not have been dismissed and found that Bishme A. had derivatively abused his own daughter based upon the abuse and neglect of another child, Jassir R.:

The Administration for Children’s Services (hereinafter ACS) commenced two related child protective proceedings pursuant to Family Court Act article 10. One proceeding was against Jazmin R. and Bishme A., alleging that they abused and neglected the child Jassir R. when that child was approximately 14 months of age. The other proceeding was against Bishme A., alleging that he derivatively abused his own daughter, Akeliah A., who was several weeks older than Jassir R. I… [A]fter a fact-finding hearing, the court … denied the petition alleging that Bishme A. derivatively abused Akeliah A., and dismissed that proceeding. …

The Family Court should have found that Bishme A. derivatively abused Akeliah A. In a child protective proceeding pursuant to Family Court Act article 10, “proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child” (Family Ct Act § 1046[a][i]). ACS established that Jassir R. suffered extensive inflicted injuries while in the care of Bishme A. Based on this evidence, ACS established, by a preponderance of the evidence, that Bishme A. derivatively abused Akeliah A. Matter of Akeliah A. (Bishme A.), 2018 NY Slip Op 08925, Second Dept 12-26-18

 

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