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MOTHER DEMONSTRATED FATHER WILLFULLY VIOLATED THE SEPARATION AGREEMENT AND WAS THEREFORE ENTITLED TO ATTORNEY’S FEES (THIRD DEPT). ​

The Third Department, reversing Family Court, determined mother had demonstrated that father’s violation of the separation agreement was willful, entitling mother to attorney’s fees:

Family Court’s determination that the mother failed to prove a willful violation is not supported by the record or the law. The mother’s testimonial and documentary submissions were amply sufficient to make a prima facie showing that the father’s delays and failures to satisfy his obligations were willful violations, thus shifting the burden to him to demonstrate his inability to pay … . In response, the father made no effort to show that he could not meet his obligations; indeed, he admitted that he did not make the orthodontic payment or turn over the tax information until he was ordered to do so. Accordingly, he failed to satisfy his burden… . Family Court thus erred in dismissing the mother’s objections. Contrary to the court’s determination, the fact that the father had paid his obligations by the time of the hearing — at least in part, because he was ordered to do so — does not negate the evidence that he repeatedly delayed in fulfilling some of his responsibilities and completely avoided others, forcing the mother to make repeated efforts to obtain his compliance and, finally, to commence this proceeding. Matter of Shkaf v Shkaf, 2018 NY Slip Op 04052, Third Dept 6-7-18

FAMILY LAW (SEPARATION AGREEMENTS, MOTHER DEMONSTRATED FATHER WILLFULLY VIOLATED THE SEPARATION AGREEMENT AND WAS THEREFORE ENTITLED TO ATTORNEY’S FEES (THIRD DEPT))/ATTORNEYS (FAMILY LAW, (SEPARATION AGREEMENTS, MOTHER DEMONSTRATED FATHER WILLFULLY VIOLATED THE SEPARATION AGREEMENT AND WAS THEREFORE ENTITLED TO ATTORNEY’S FEES (THIRD DEPT))/ATTORNEY’S FEES (FAMILY LAW, MOTHER DEMONSTRATED FATHER WILLFULLY VIOLATED THE SEPARATION AGREEMENT AND WAS THEREFORE ENTITLED TO ATTORNEY’S FEES (THIRD DEPT))/SEPARATION AGREEMENTS (VIOLATION, ATTORNEY’S FEES,  MOTHER DEMONSTRATED FATHER WILLFULLY VIOLATED THE SEPARATION AGREEMENT AND WAS THEREFORE ENTITLED TO ATTORNEY’S FEES (THIRD DEPT))/CONTRACT LAW (FAMILY LAW, SEPARATION AGREEMENTS, MOTHER DEMONSTRATED FATHER WILLFULLY VIOLATED THE SEPARATION AGREEMENT AND WAS THEREFORE ENTITLED TO ATTORNEY’S FEES (THIRD DEPT))

SUSPENDED JUDGMENT COMMITTING RESPONDENT TO JAIL FOR FAILURE TO MAKE CHILD SUPPORT PAYMENTS SHOULD NOT HAVE BEEN REVOKED WITHOUT A HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined a suspended judgment should not have been revoked without a hearing:

… [R]espondent consented to an order confirming the Support Magistrate’s finding that he willfully violated his child support obligation. Family Court suspended judgment on the condition that respondent make certain minimum payments. After respondent failed to make the requisite payments, petitioner, in November 2015, filed a violation petition against him. Following an appearance in April 2016, it was revealed that respondent had been recently employed and the child support payments had been made. As a consequence, Family Court continued to suspend judgment and the matter was adjourned. At a November 2016 appearance, petitioner advised Family Court that, although it had been receiving payments directly from respondent’s employer, such payments had ceased in early October 2016. Inasmuch as respondent failed to personally appear in November 2016, a warrant was issued for his arrest. At an appearance on January 4, 2017, respondent’s counsel requested a hearing to call respondent’s employer as a witness to determine why payments were not being made to petitioner. Respondent’s counsel inquired whether he should subpoena the employer and, although Family Court did not explicitly respond to this inquiry, the court noted that a hearing “could at least start.” At the January 17, 2017 appearance, Family Court refused to let respondent call the subpoenaed witness. Family Court noted that a hearing was unnecessary because respondent did not dispute that payments had not been made and, therefore, good cause existed to revoke the suspended judgment. Family Court sentenced respondent to a 90-day jail term and imposed a purge amount of $3,507.50. …

Family Court erred in revoking the suspended judgment without first conducting an evidentiary hearing … . Given respondent’s liberty interest at stake … , he was entitled to present witnesses on the issue of whether good cause existed to revoke the suspended judgment … . Matter of Madison County Support Collection Unit v Campbell, 2018 NY Slip Op 04049, Third Dept 6-7-18

FAMILY LAW (SUSPENDED JUDGMENT COMMITTING RESPONDENT TO JAIL FOR FAILURE TO MAKE CHILD SUPPORT PAYMENTS SHOULD NOT HAVE BEEN REVOKED WITHOUT A HEARING (THIRD DEPT))/CHILD SUPPORT (SUSPENDED JUDGMENT COMMITTING RESPONDENT TO JAIL FOR FAILURE TO MAKE CHILD SUPPORT PAYMENTS SHOULD NOT HAVE BEEN REVOKED WITHOUT A HEARING (THIRD DEPT))/SUSPENDED JUDGMENT (FAMILY LAW, CHILD SUPPORT, SUSPENDED JUDGMENT COMMITTING RESPONDENT TO JAIL FOR FAILURE TO MAKE CHILD SUPPORT PAYMENTS SHOULD NOT HAVE BEEN REVOKED WITHOUT A HEARING (THIRD DEPT))

DURATION OF ORDERS OF PROTECTION FOR A BIOLOGICAL GRANDFATHER AND A STEPGRANDFATHER EXPLAINED (THIRD DEPT).

The Third Department discussed the allowed duration of orders of protection for a biological grandfather and a stepgrandfather:

Family Ct Act § 1056 (4) provides that “[t]he court may enter an order of protection[,] independently of any other order made under this part, against a person who was a member of the child’s household or a person legally responsible . . . and who is no longer a member of such household at the time of the disposition and who is not related by blood or marriage to the child or a member of the child’s household. [Such] order of protection . . . may be for any period of time up to the child’s eighteenth birthday.” Because Harold J. is the biological grandfather of Annabella and Caleb J., the orders of protection as to these children must be modified to reflect an expiration date … one year from disposition of the matter … .​

The familial relationship between Makayla and Harold J. warrants slightly more analysis as Harold J. is not Makayla’s biological grandfather, but rather is related to her through his son’s marriage to Makayla’s mother. This raises the issue of whether a stepgrandparent is related to a stepgrandchild by marriage for the purposes of Family Ct Act § 1056 (4). We conclude that they are not. This conclusion is supported by the specific language in the statute, “related by . . . marriage” … , rather than the broader and more inclusive concept of “affinity,” which is used elsewhere in the Family Ct Act … . Further, a stepgrandparent has no enforceable legal right to have contact with a stepgrandchild as a stepgrandparent lacks standing to pursue visitation … . Thus, although Family Ct Act § 1056 (4) limits the duration of orders of protection against a stepparent who is related to a child by and through his or her own marriage to the child’s mother or father, these limitations do not apply to a stepgrandparent, whose relationship to the child is attenuated. Therefore, because Harold J.’s relationship to Makayla is not established by his own marriage, but rather through his son’s marriage, it was statutorily permissible, in this regard, for Family Court to issue an order of protection until Makayla’s eighteenth birthday. Our analysis does not end here, however, as Family Ct Act § 1056 (4) prohibits orders of protection until a child’s eighteenth birthday if the order is against someone who is related by blood or marriage to a member of the child’s household. Therefore, if, at the time of disposition, Makayla resided in the same household as Annabella and Caleb J., the order of protection as to Makayla could not exceed one year … . Inasmuch as we cannot discern from the record whether this is the case, the matter must be remitted for the purpose of making this determination. Matter of Makayla I. (Caleb K.), 2018 NY Slip Op 04047, Third Dept 6-7-18

FAMILY LAW (ORDERS OF PROTECTION, DURATION OF ORDERS OF PROTECTION FOR A BIOLOGICAL GRANDFATHER AND A STEPGRANDFATHER EXPLAINED (THIRD DEPT))/ORDERS OF PROTECTION (FAMILY LAW, DURATION OF ORDERS OF PROTECTION FOR A BIOLOGICAL GRANDFATHER AND A STEPGRANDFATHER EXPLAINED (THIRD DEPT))

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HUSBAND ENTITLED TO REVOKE HIS CONSENT TO USE OF A FROZEN EMBRYO, EMBRYO AWARDED TO HUSBAND FOR SOLE PURPOSE OF DISPOSAL IN THIS DIVORCE ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff husband, in this divorce action, was entitled to the frozen embryo for the sole purpose of disposal:

… [Husband and wife] engaged the services of [New Hope Fertility Center, NHF] in the hope of conceiving a child via implantation of cryopreserved embryos in the wife’s uterus. … [T]hey signed an agreement with NHF entitled “Consent for the Cryopreservation of Human Embryo(s)” (the Consent Agreement). …

Paragraph 7 of the Consent Agreement is entitled “Voluntary Participation” and provides “I/We may withdraw my/our consent and discontinue participation at any time . . . .” Paragraph 16, entitled “Authorization,” provides, “This consent will remain in effect until such time as I notify NHF in writing of my/our wish to revoke such consent.” …

In Kass v Kass (91 NY2d 554 [1998]), the Court of Appeals determined that agreements between donors participating in IVF [in vitro fertilization] should be enforced pursuant to general rules of contract interpretation. … The Consent Agreement specifies that participation in the procedures involving cryopreservation of embryos is voluntary and that either party may withdraw consent at any time. … The provisions permitting either party to revoke consent are not limited to cryopreservation, but permit either party to withdraw consent to participation in the entire IVF process. … [T]he Consent Agreement does not indicate that the court has plenary authority to determine ownership of the embryo in the event of divorce … . Finkelstein v Finkelstein, 2018 NY Slip Op 03926, First Dept 6-5-18

​FAMILY LAW (IN VITRO FERTILIZATION, FROZEN EMBRYO, HUSBAND ENTITLED TO REVOKE HIS CONSENT TO USE OF A FROZEN EMBRYO, EMBRYO AWARDED TO HUSBAND FOR SOLE PURPOSE OF DISPOSAL IN THIS DIVORCE ACTION (FIRST DEPT))/CONTRACT LAW (FAMILY LAW, IN VITRO FERTILIZATION, FROZEN EMBRYO, HUSBAND ENTITLED TO REVOKE HIS CONSENT TO USE OF A FROZEN EMBRYO, EMBRYO AWARDED TO HUSBAND FOR SOLE PURPOSE OF DISPOSAL IN THIS DIVORCE ACTION (FIRST DEPT))/IN VITRO FERTILIZATION (FAMILY LAW. FROZEN EMBRYO, HUSBAND ENTITLED TO REVOKE HIS CONSENT TO USE OF A FROZEN EMBRYO, EMBRYO AWARDED TO HUSBAND FOR SOLE PURPOSE OF DISPOSAL IN THIS DIVORCE ACTION (FIRST DEPT))/EMBRYO, FROZEN (FAMILY LAW, IN VITRO FERTILIZATION, HUSBAND ENTITLED TO REVOKE HIS CONSENT TO USE OF A FROZEN EMBRYO, EMBRYO AWARDED TO HUSBAND FOR SOLE PURPOSE OF DISPOSAL IN THIS DIVORCE ACTION (FIRST DEPT))

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FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT).

The Second Department, dismissing the appeal as academic, determined Family Court was divested of subject matter jurisdiction in this guardianship proceeding because the child had turned 21. Mother had sought appointment as guardian in an effort to procure special immigrant juvenile status (SIJS) for the child:

“Generally, courts are precluded from considering questions which, although once live, have become moot by passage of time or change in circumstances'” … . Where, as here, a child who consented to the appointment of a guardian after his or her 18th birthday turns 21, the term of appointment of the guardian “expires on [the child’s] twenty-first birthday” (SCPA 1707[2]). Consequently, once the child turns 21, the court “is divested of subject matter jurisdiction, [and] cannot exercise such jurisdiction by virtue of an order nunc pro tunc” … . Thus, the guardianship petition cannot be granted at this juncture.

Furthermore, since guardianship status, which the Family Court can only grant to individuals under 21, is a condition precedent to a declaration allowing a child to seek SIJS, the petitioner’s motion for the issuance of an order declaring that the child is dependent on the court and making the requisite specific findings so as to enable him to petition for SIJS has also been rendered academic … . Matter of Vincenta E. V. v Alexander R. G., 2018 NY Slip Op 03849, Second Dept 5-30-18

​FAMILY LAW (FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT))/IMMIGRATION LAW (FAMILY LAW, FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT))/CIVIL PROCEDURE (FAMILY LAW, FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT))/SUBJECT MATTER JURISDICTION  (FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT))/JURISDICTION (FAMILY LAW, FAMILY COURT DIVESTED OF SUBJECT MATTER JURISDICTION IN THIS GUARDIANSHIP PROCEEDING BECAUSE THE CHILD TURNED 21, MOTION FOR FINDINGS ALLOWING THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) RENDERED ACADEMIC (FIRST DEPT))

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COURT SHOULD HAVE TAKEN INTO CONSIDERATION THE FUTURE EARNING CAPACITY OF THE PARTIES IN CONNECTION WITH MOTHER’S MOTION FOR ATTORNEY’S FEES, MOTHER ENTITLED TO A HEARING (FIRST DEPT).

The First Department, reversing Family Court, determined mother was entitled to a hearing on her motion for attorney’s fees in this divorce action (mother sought $174,000). Family Court had dismissed mother’s motion. The First Department held that Family Court should have looked at the future earning capacity of the parties rather than their earning capacity at the time of the decision:

The purpose of awarding counsel fees is to further the objectives of “litigational parity” and prevent a more affluent spouse from considerably wearing down the opposition … . In its dismissal of the mother’s motion for counsel fees, the court unduly relied upon the financial circumstances of the parties at the time it rendered its decision rather than weighing the historical and future earning capacities of both parties … . Here, although the father was unemployed at the time the court’s decision was rendered, and the mother had secured employment, the father earned considerably more than the mother during the course of their relationship and has significantly more expected earning capacity than the mother. Indeed, the financial and tax documents in the record support such a conclusion. The father, however, is entitled to a hearing so that the relative financial positions of the parties and the value and extent of the counsel fees requested can be examined … . Matter of Brookelyn M. v Christopher M., 2018 NY Slip Op 03801, First Dept 5-29-18

​FAMILY LAW (ATTORNEY’S FEES, COURT SHOULD HAVE TAKEN INTO CONSIDERATION THE FUTURE EARNING CAPACITY OF THE PARTIES IN CONNECTION WITH MOTHER’S MOTION FOR ATTORNEY’S FEES, MOTHER ENTITLED TO A HEARING (FIRST DEPT))/ATTORNEY’S FEE (FAMILY LAW, COURT SHOULD HAVE TAKEN INTO CONSIDERATION THE FUTURE EARNING CAPACITY OF THE PARTIES IN CONNECTION WITH MOTHER’S MOTION FOR ATTORNEY’S FEES, MOTHER ENTITLED TO A HEARING (FIRST DEPT))

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MOTHER’S PETITION SEEKING FINDINGS TO ALLOW HER CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUES SHOULD NOT HAVE BEEN DISMISSED, MOTHER WAS NOT REQUIRED TO BE FINGERPRINTED OR TO SUBMIT CERTAIN DOCUMENTATION, JUDGE’S COMMENTS ABOUT THE CHILD’S SPEAKING SPANISH REQUIRED TRANSFER TO A DIFFERENT JUDGE (SECOND DEPT).

The Second Department determined Family Court should not have dismissed mother’s petition to have Family Court make the findings necessary for he child to apply for special Immigrant juvenile status (SIJS) and should not have required mother to be fingerprinted and provide unnecessary documentation. The Second Department further held that the petition must be transferred to a different judge because of the judge’s comments about the child’s speaking Spanish:

Contrary to the Family Court’s determination, in a proceeding such as this pursuant to Family Court Act § 661(a) for “[g]uardianship of the person of a minor or infant,” there is no express statutory fingerprinting requirement … , or any express requirement to submit documentation pertaining to the Office of Children and Family Services … . Further, under the circumstances of this case, the court erred in dismissing the petition and denying the motion for “failure to prosecute” based upon the mother’s failure to submit documentation regarding, inter alia, the child’s enrollment in school … .

Since the Family Court dismissed the guardianship petition and denied the mother’s motion without conducting a hearing or considering the child’s best interests, we remit the matter to the Family Court, Nassau County, for a hearing and a new determination thereafter of the petition and the motion … . In addition, in light of certain remarks made by the Family Court Judge during the course of the proceedings, we deem it appropriate that the matter be heard by a different Judge. The remarks included: that the child “should be speaking English a lot better” after having been in the United States for two years; that the child should “make some friends who speak English”; that if the child only spoke Spanish, “what are you gonna do, you’re gonna be hanging around just where you are”; and that the child “[c]an’t speak English, doesn’t go to school, it’s wonderful. It’s a great country America.” These remarks were inappropriate and cannot be countenanced. Matter of A. v P., 2018 NY Slip Op 03674, Second Dept 5-23-18

​FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, MOTHER’S PETITION SEEKING FINDINGS TO ALLOW HER CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUES SHOULD NOT HAVE BEEN DISMISSED, MOTHER WAS NOT REQUIRED TO BE FINGERPRINTED OR TO SUBMIT CERTAIN DOCUMENTATION, JUDGE’S COMMENTS ABOUT THE CHILD’S SPEAKING SPANISH REQUIRED TRANSFER TO A DIFFERENT JUDGE (SECOND DEPT))/IMMIGRATION LAW (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, MOTHER’S PETITION SEEKING FINDINGS TO ALLOW HER CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUES SHOULD NOT HAVE BEEN DISMISSED, MOTHER WAS NOT REQUIRED TO BE FINGERPRINTED OR TO SUBMIT CERTAIN DOCUMENTATION, JUDGE’S COMMENTS ABOUT THE CHILD’S SPEAKING SPANISH REQUIRED TRANSFER TO A DIFFERENT JUDGE (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (FAMILY LAW, MOTHER’S PETITION SEEKING FINDINGS TO ALLOW HER CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUES SHOULD NOT HAVE BEEN DISMISSED, MOTHER WAS NOT REQUIRED TO BE FINGERPRINTED OR TO SUBMIT CERTAIN DOCUMENTATION, JUDGE’S COMMENTS ABOUT THE CHILD’S SPEAKING SPANISH REQUIRED TRANSFER TO A DIFFERENT JUDGE (SECOND DEPT))/JUDGES (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, MOTHER’S PETITION SEEKING FINDINGS TO ALLOW HER CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUES SHOULD NOT HAVE BEEN DISMISSED, MOTHER WAS NOT REQUIRED TO BE FINGERPRINTED OR TO SUBMIT CERTAIN DOCUMENTATION, JUDGE’S COMMENTS ABOUT THE CHILD’S SPEAKING SPANISH REQUIRED TRANSFER TO A DIFFERENT JUDGE (SECOND DEPT))

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IN THIS DIVORCE PROCEEDING, THE JUDGE HAD THE POWER TO CORRECT AN INCONSISTENCY BETWEEN THE JUDGMENT AND THE UNDERLYING DECISION BUT DID NOT HAVE THE POWER TO CHANGE THE JUDGMENT BASED UPON NEW EVIDENCE (SECOND DEPT).

The Second department, reversing (modifying) Supreme Court in a divorce action, determined that the judge properly corrected a mistake in the judgment of divorce, but improperly made a change in the judgment based on new evidence:

… [T]he Supreme Court, sua sponte, directed the parties to appear … . … [T]he defendant and his counsel appeared, but the plaintiff failed to appear. The court expressed its concern about a letter it had received indicating that the defendant had failed to disclose a variable supplemental pension plan. The court further noted that the third decretal paragraph of the judgment did not reflect the intent expressed in the court’s underlying decision, inasmuch as the judgment failed to provide that changes in the value of the retirement assets since the commencement of the action were to be shared equally. An amended judgment was entered thereafter modifying so much of the third decretal paragraph of the original judgment as was necessary to conform the judgment to the underlying decision, and modifying the fourth decretal paragraph of the original judgment to include a reference to the previously undisclosed variable supplemental pension plan. The defendant appeals from the amended judgment.

The Supreme Court had the authority to modify the third decretal paragraph of the original judgment, given the discrepancy between the terms of that decretal paragraph and the underlying decision. “A judgment . . . must conform strictly to the court’s decision. Where there is an inconsistency between a judgment . . . and the decision upon which it is based, the decision controls” …

However, the Supreme Court was without authority, sua sponte, to modify the fourth decretal paragraph of the original judgment to add a reference to the variable supplemental pension plan, as this was a substantive modification based on new evidence that had not previously been submitted to the court. Such a modification goes beyond the court’s inherent authority to correct a “mistake, defect or irregularity” in the original judgment “not affecting a substantial right of a party” … . Mascia v Mascia, 2018 NY Slip Op 03523, Second Dept 5-16-18

​FAMILY LAW (JUDGMENTS, IN THIS DIVORCE PROCEEDING, THE JUDGE HAD THE POWER TO CORRECT AN INCONSISTENCY BETWEEN THE JUDGMENT AND THE UNDERLYING DECISION BUT DID NOT HAVE THE POWER TO CHANGE THE JUDGMENT BASED UPON NEW EVIDENCE (SECOND DEPT))/JUDGMENTS ( IN THIS DIVORCE PROCEEDING, THE JUDGE HAD THE POWER TO CORRECT AN INCONSISTENCY BETWEEN THE JUDGMENT AND THE UNDERLYING DECISION BUT DID NOT HAVE THE POWER TO CHANGE THE JUDGMENT BASED UPON NEW EVIDENCE (SECOND DEPT))/JUDGES (IN THIS DIVORCE PROCEEDING, THE JUDGE HAD THE POWER TO CORRECT AN INCONSISTENCY BETWEEN THE JUDGMENT AND THE UNDERLYING DECISION BUT DID NOT HAVE THE POWER TO CHANGE THE JUDGMENT BASED UPON NEW EVIDENCE (SECOND DEPT))

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AWARD OF ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS DIVORCE ACTION WAS AN ABUSE OF DISCRETION, ATTORNEY DID NOT COMPLY WITH BILLING RULES AND NO EXPERT AFFIDAVITS WERE SUBMITTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the award of attorney’s fees and expert witness fees in this divorce action was an abuse of discretion:

In a matrimonial action, an award of counsel fees is a matter committed to the sound discretion of the trial court … . However, court rules impose certain requirements upon attorneys who represent clients in domestic relations matters … . These rules were designed to address abuses in the practice of matrimonial law and to protect the public, and the failure to substantially comply with the rules will preclude an attorney’s recovery of a fee from his or her client …  or from the adversary spouse … . A showing of substantial compliance must be made on a prima facie basis as part of the moving party’s papers … .

Here, the evidence proffered by the defendant in support of that branch of her motion which was for an award of counsel fees for work performed by Glynn demonstrates that Glynn failed to substantially comply with the rules requiring periodic billing statements at least every 60 days … . Accordingly, the Supreme Court erred in granting that branch of the defendant’s motion which pertains to Glynn’s counsel’s fees. …

“The award of expert witness fees in a matrimonial action is left to the sound discretion of the trial court, and should be made upon a detailed showing of the services to be rendered and the estimated time involved”… . “Absent affidavits from the expert witnesses at issue, the Supreme Court lacks a sufficient basis to grant a motion for the award of such fees” …  Here, the defendant failed to submit such expert affidavits. Greco v Greco, 2018 NY Slip Op 03509, Second Dept 5-16-18

​FAMILY LAW (DIVORCE, ATTORNEY’S FEES, EXPERT WITNESS FEES, AWARD OF ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS DIVORCE ACTION WAS AN ABUSE OF DISCRETION, ATTORNEY DID NOT COMPLY WITH BILLING RULES AND NO EXPERT AFFIDAVITS WERE SUBMITTED (SECOND DEPT))/ATTORNEYS (DIVORCE, ATTORNEY’S FEES, EXPERT WITNESS FEES, AWARD OF ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS DIVORCE ACTION WAS AN ABUSE OF DISCRETION, ATTORNEY DID NOT COMPLY WITH BILLING RULES AND NO EXPERT AFFIDAVITS WERE SUBMITTED (SECOND DEPT))/ATTORNEYS FEES (DIVORCE, EXPERT WITNESS FEES, AWARD OF ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS DIVORCE ACTION WAS AN ABUSE OF DISCRETION, ATTORNEY DID NOT COMPLY WITH BILLING RULES AND NO EXPERT AFFIDAVITS WERE SUBMITTED (SECOND DEPT))/EXPERT WITNESSES (DIVORCE, ATTORNEY’S FEES, AWARD OF ATTORNEY’S FEES AND EXPERT WITNESS FEES IN THIS DIVORCE ACTION WAS AN ABUSE OF DISCRETION, ATTORNEY DID NOT COMPLY WITH BILLING RULES AND NO EXPERT AFFIDAVITS WERE SUBMITTED (SECOND DEPT))

DESPITE TERMINATION OF MOTHER’S PARENTAL RIGHTS, GRANDMOTHER HAD STANDING TO SEEK VISITATION AND VISITATION WITH GRANDMOTHER WAS IN THE BEST INTERESTS OF THE CHILD (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined, despite the termination of mother’s parental rights, grandmother had standing to seek visitation with the child and visitation by the grandmother was in the bests interests of the child:

A biological grandparent may seek visitation with a child even after parental rights have been terminated or the child has been freed for adoption … . Where a grandparent seeks visitation pursuant to Domestic Relations Law § 72(1), the court must undertake a two-part inquiry … . First, the court must determine if the grandparent has standing to petition for visitation based on the death of a parent or equitable circumstances . Where the court concludes that the grandparent has established standing, the court must then determine whether visitation with the grandparent is in the best interests of the child … . In determining whether equitable circumstances confer standing, the court must examine all relevant facts … . “[A]n essential part of the inquiry is the nature and extent of the grandparent-grandchild relationship” … . A grandparent must establish an existing relationship or sufficient efforts to establish one that have been unjustifiably frustrated by the parent … .

Here, the evidence demonstrated that the maternal grandmother developed a relationship with the child early on in her life and thereafter made repeated efforts to continue that relationship … . Accordingly, the Family Court’s determination that the grandmother lacked standing to seek visitation was not supported by a sound and substantial basis in the record. Moreover, visitation with the grandmother would be in the child’s best interests. The grandmother had consistent visitation with the child until the DSS ceased allowing such visitation in November 2014. By all accounts, the grandmother’s visitations conducted separately from the mother’s visitations were positive, and the attorney for the child in the Family Court took the position that the child’s best interests would be served by visitation with the grandmother conditioned on the requirement that the mother not be present for the visitation … . Matter of Weiss v Weiss, 2018 NY Slip Op 03532, Second Dept 5-16-18

​FAMILY LAW (VISITATION, GRANDMOTHER, DESPITE TERMINATION OF MOTHER’S PARENTAL RIGHTS, GRANDMOTHER HAD STANDING TO SEEK VISITATION AND VISITATION WITH GRANDMOTHER WAS IN THE BEST INTERESTS OF THE CHILD (SECOND DEPT))/VISITATION (FAMILY LAW, GRANDMOTHER, DESPITE TERMINATION OF MOTHER’S PARENTAL RIGHTS, GRANDMOTHER HAD STANDING TO SEEK VISITATION AND VISITATION WITH GRANDMOTHER WAS IN THE BEST INTERESTS OF THE CHILD (SECOND DEPT))/GRANDPARENTS (FAMILY LAW, VISITATION, DESPITE TERMINATION OF MOTHER’S PARENTAL RIGHTS, GRANDMOTHER HAD STANDING TO SEEK VISITATION AND VISITATION WITH GRANDMOTHER WAS IN THE BEST INTERESTS OF THE CHILD (SECOND DEPT))

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