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SUPREME COURT IMPROPERLY AWARDED CUSTODY TO FATHER, RELIEF WHICH HAD NOT BEEN REQUESTED BY FATHER, WITHOUT A BEST INTERESTS HEARING, AFTER MOTHER ASKED TO APPEAR AT A HEARING BY TELEPHONE.

The Second Department, reversing Supreme Court, determined the award of custody to father, which father had not requested, when mother asked to appear at a hearing by telephone was improper. The hearing was to determine father’s allegation mother had violated the visitation provisions of the consent order awarding custody to her. The child had appealed. The best interests of the child are paramount and don’t appear to have been considered by the court:

The paramount concern in any custody or visitation determination is the best interests of the child … . “In order to modify a consent order granting sole custody to a parent, there must be a showing of a change [in] circumstances such that modification is required to protect the best interests of the child'” … . “Custody determinations should generally be made only after a full and plenary hearing and inquiry. This general rule furthers the substantial interest, shared by the State, the [child], and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interests of the child” … . Reversal or modification of an existing custody order “should not be a weapon wielded as a means of punishing a recalcitrant” or contemptuous parent … . Moreover, where no party has moved for a change in custody, a court may not modify an existing custody order in a non-emergency situation absent notice to the parties, and without affording the custodial parent an opportunity to present evidence and to call and cross-examine witnesses … .

Here, the Supreme Court improperly modified the consent order by changing custody from the mother to the father without the father having sought that relief in the petition, and without any apparent consideration of the child’s best interests … . The court’s award of custody to the father under the circumstances of this case also was improper in light of the father’s statements during the proceedings that he did not have a steady place to live with the child and that he did not wish to make an application for custody. Accordingly, we reverse the order and remit the matter to the Supreme Court … , for further proceedings on the father’s violation petition. We caution the Supreme Court to be mindful that determining the best interest of a child is a weighty responsibility, and that it ordinarily should not make such a determination without conducting an evidentiary hearing. Matter of Noel v Melle, 2017 NY Slip Op 05226, 2nd Dept 6-28-17

 

THE RECORD SUPPORTED A NEGLECT FINDING BASED UPON FATHER’S ABUSE OF MOTHER, FAMILY COURT REVERSED.

The Second Department, reversing Family Court, determined the record supported a neglect finding based upon domestic abuse witnessed or overheard by the children:

At the conclusion of the hearing, the Family Court credited the witnesses’ testimony, which the court found established that the father hit and choked the mother in the presence of two of the children, the eldest child was pushed by the father when he attempted to intervene, a third child was not in the room when the incident occurred but heard noise, and the three oldest children reported that they had witnessed the father engage in acts of domestic violence against their mother and had also witnessed the father under the influence of drugs. Nevertheless, the court dismissed the petitions on the ground that no physical impairment or risk of physical impairment of the children was established, nor was the mental state of the children explored. The petitioner appeals. * * *

Contrary to the Family Court’s conclusion, impairment or an imminent danger of impairment to the physical, mental, or emotional condition of the subject children could be inferred from the father’s conduct … . A single act of domestic violence in the presence of a child … , or within the hearing of a child … , may be sufficient for a neglect finding. In this case, there was evidence of repeated acts of domestic violence while the children were present in the household … , which the eldest child attributed to the father’s drug use. Furthermore, the father did not testify, warranting the “strongest negative inference” against him … .

Under these circumstances, the Family Court’s findings that the subject children were not neglected are not supported by the record. Accordingly, we reverse the order, reinstate the petitions, find that the children are neglected within the meaning of Family Court Act § 1012(f), and remit the matter to the Family Court, Kings County, for a dispositional hearing and determinations thereafter. Matter of Jihad H. (Fawaz H.), 2017 NY Slip Op 05224, 2nd Dept 6-28-17

 

MOTHER’S PETITION TO RELOCATE TO FLORIDA PROPERLY DENIED, INSUFFICIENT SHOWING THE MOVE WOULD BE IN THE BEST INTERESTS OF THE CHILD.

The First Department, in a full-fledged opinion by Justice Kapnick, concluded Family Court properly denied mother’s petition to relocate to Florida. Mother was not sure where she would live or work or how child care would be arranged. It did not appear father would be able to visit the child in Florida. The fact that father was behind in child support was not enough to show the relocation would be in the best interests of the child. Matter of Salena S. v Ahmad G., 2017 NY Slip Op 05172, 1st Dept 6-22-17

 

FAMILY LAW (MOTHER’S PETITION TO RELOCATE TO FLORIDA PROPERLY DENIED, INSUFFICIENT SHOWING THE MOVE WOULD BE IN THE BEST INTERESTS OF THE CHILD)/RELOCATION (FAMILY LAW, MOTHER’S PETITION TO RELOCATE TO FLORIDA PROPERLY DENIED, INSUFFICIENT SHOWING THE MOVE WOULD BE IN THE BEST INTERESTS OF THE CHILD)

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ATTORNEY’S FEES IN EXCESS OF WHAT COURT AWARDED NOT AVAILABLE, NOT ENTITLED TO PAYMENT FOR APPELLATE WORK WITHOUT A RETAINER AGREEMENT, LETTER OF ENGAGEMENT IN MATRIMONIAL MATTERS IS MANDATORY.

The Second Department noted that attorney’s fees greater that the amount awarded by the court cannot be sought unless the court awarded fees in an amount less than was demanded. The court further noted that a letter of engagement in a matrimonial matter is mandatory and quantum meruit relief is not available:

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An attorney is not precluded from seeking fees charged pursuant to a retainer agreement that are greater than the amount granted to the client by the court in the action where the circumstances warrant, such as where the fees awarded by the court are less than the amount demanded … . Here, the plaintiff obtained awards of the amounts demanded in both the Family Court and Supreme Court matters and, accordingly, was not entitled to additional fees.

With respect to the appellate work provided, there was no written retainer agreement, which is required by 22 NYCRR 1400.3, governing such work. While the existing retainer agreements were for “post judgment” matter, which could be understood as matter arising subsequent to the entry of the judgment of divorce, those agreements explicitly did not encompass appellate work. Therefore, the plaintiff was not entitled to payment for fees incurred for appellate work … .

Further, while in a nonmatrimonial matter the unintentional failure to provide a letter of engagement does not preclude an attorney from recovering the fair and reasonable value of his or her services pursuant to the doctrine of quantum meruit …,this case involves postjudgment relief in a matrimonial matter, for which a written retainer agreement is required … . In any event, the plaintiff did not assert a cause of action sounding in quantum meruit in the complaint, and there is no proof in this record of the fair and reasonable value of the plaintiff’s services on the appeal. No transcript of the trial has been provided, thus precluding review of that factual issue … . Hyman & Gilbert v Withers, 2017 NY Slip Op 05072, 2nd Dept 6-21-17

 

FAMILY LAW (ATTORNEY’S FEES, ATTORNEYS FEES IN EXCESS OF WHAT COURT AWARDED NOT AVAILABLE, NOT ENTITLED TO PAYMENT FOR APPELLATE WORK WITHOUT A RETAINER AGREEMENT, LETTER OF ENGAGEMENT IN MATRIMONIAL MATTERS IS MANDATORY)/ATTORNEYS (FAMILY LAW, ATTORNEYS FEES IN EXCESS OF WHAT COURT AWARDED NOT AVAILABLE, NOT ENTITLED TO PAYMENT FOR APPELLATE WORK WITHOUT A RETAINER AGREEMENT, LETTER OF ENGAGEMENT IN MATRIMONIAL MATTERS IS MANDATORY)/RETAINER AGREEMENTS (FAMILY LAW, ATTORNEYS FEES IN EXCESS OF WHAT COURT AWARDED NOT AVAILABLE, NOT ENTITLED TO PAYMENT FOR APPELLATE WORK WITHOUT A RETAINER AGREEMENT, LETTER OF ENGAGEMENT IN MATRIMONIAL MATTERS IS MANDATORY)/LETTERS OF ENGAGEMENT (FAMILY LAW,  ATTORNEYS FEES IN EXCESS OF WHAT COURT AWARDED NOT AVAILABLE, NOT ENTITLED TO PAYMENT FOR APPELLATE WORK WITHOUT A RETAINER AGREEMENT, LETTER OF ENGAGEMENT IN MATRIMONIAL MATTERS IS MANDATORY)/QUANTUM MERUIT (FAMILY LAW, ATTORNEY’S FEES IN EXCESS OF WHAT COURT AWARDED NOT AVAILABLE, NOT ENTITLED TO PAYMENT FOR APPELLATE WORK WITHOUT A RETAINER AGREEMENT, LETTER OF ENGAGEMENT IN MATRIMONIAL MATTERS IS MANDATORY)

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STANDING EVIDENCE DID NOT MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, EVIDENCE THE LOAN WAS GOING TO BE USED FOR INVESTMENT PURPOSES RAISED A QUESTION OF FACT WHETHER THE RPAPL NOTICE REQUIREMENTS FOR HOME LOANS APPLIED.

The Second Department determined the bank’s motion for summary judgment in this foreclosure action should not have been granted. The bank (Nationstar) did not demonstrate the originator of the mortgage (Aurora) had standing because the relevant evidence did not meet the criteria for the business records exception to the hearsay rule. In addition, the court held that, although there was evidence the notice requirements of the Real Property Actions and Proceedings Law [RPAPL] were not met by the bank, the bank produced evidence the loan was going to be used by defendants for investment purposes and was not, therefore, a “home loan” to which the notice requirements apply:

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Here, Nationstar failed to meet its prima facie burden of establishing that Aurora had standing to commence the action. In support of its motion, Nationstar relied on the affidavit of Doris Raimundi, a vice president of Nationstar, who asserted that “pursuant to the business records of Aurora Loan Services, LLC, the original Note was held in its custody since September 23, 2009, prior to commencement of this action,” and that the note had since been delivered to Nationstar. However, Nationstar failed to demonstrate the admissibility of the records relied upon by Raimundi under the business records exception to the hearsay rule … , since Raimundi did not attest that she was personally familiar with Aurora’s record-keeping practices and procedures… . Inasmuch as Nationstar’s motion was based on evidence that was not in admissible form, it failed to establish its prima facie entitlement to judgment as a matter of law … . * * *

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Nationstar raised a triable issue of fact as to whether the subject loan was a “home loan” … . In particular, in light of certain written statements made by [defendant] when he applied for the loan, there is a triable issue of fact as to whether the proceeds of the loan were, in fact, used for “personal, family, or household purposes,” or whether they were used for investment purposes … . Thus, the defendants were not entitled to summary judgment on the ground that Aurora failed to comply with RPAPL 1304. Aurora Loan Servs., LLC v Komarovsky, 2017 NY Slip Op 05061, 2nd Dept 6-21-17

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FORECLOSURE (STANDING EVIDENCE DID NOT MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, EVIDENCE THE LOAN WAS GOING TO BE USED FOR INVESTMENT PURPOSES RAISED A QUESTION OF FACT WHETHER THE RPAPL NOTICE REQUIREMENTS FOR HOME LOANS APPLIED)/EVIDENCE (FORECLOSURE, STANDING EVIDENCE DID NOT MEET THE CRITERIA FOR THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, EVIDENCE THE LOAN WAS GOING TO BE USED FOR INVESTMENT PURPOSES RAISED A QUESTION OF FACT WHETHER THE RPAPL NOTICE REQUIREMENTS FOR HOME LOANS APPLIED)/HOME LOAN (FORECLOSURE, RPAPL NOTICE REQUIREMENTS, EVIDENCE THE LOAN WAS GOING TO BE USED FOR INVESTMENT PURPOSES RAISED A QUESTION OF FACT WHETHER THE RPAPL NOTICE REQUIREMENTS FOR HOME LOANS APPLIED)/NOTICE (FORECLOSURE, RPAPL, EVIDENCE THE LOAN WAS GOING TO BE USED FOR INVESTMENT PURPOSES RAISED A QUESTION OF FACT WHETHER THE RPAPL NOTICE REQUIREMENTS FOR HOME LOANS APPLIED)

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FAILURE TO APPOINT NEW COUNSEL IN THE THIS CUSTODY PROCEEDING, AFTER RELIEVING FATHER’S PRIOR COUNSEL, VIOLATED FATHER’S RIGHT TO COUNSEL.

The Second Department determined Family Court’s failure to appoint new counsel for father after relieving father’s prior counsel in this modification of custody proceeding deprived father of his right to counsel:

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Under the circumstances presented, where the Family Court granted assigned counsel’s motion to be relieved, refused to assign the father a new attorney, and then compelled the father to choose between representing himself or having his petition dismissed, the Family Court violated the father’s right to be represented by counsel … . The father neither forfeited his right to counsel nor knowingly, voluntarily, and intelligently waived his right to counsel … . Moreover, the mere fact that the court granted the motion of the father’s first assigned counsel to be relieved did not serve to extinguish the father’s right to have another attorney assigned to represent him … . Accordingly, upon granting the motion of the father’s assigned counsel to be relieved of his assignment, the Family Court should have assigned the father new counsel … . Matter of Rosado v Badillo, 2017 NY Slip Op 05096, 2nd Dept 6-21-17

FAMILY LAW (ATTORNEYS, FAILURE TO APPOINT NEW COUNSEL IN THE THIS CUSTODY PROCEEDING, AFTER RELIEVING FATHER’S PRIOR COUNSEL, VIOLATED FATHER’S RIGHT TO COUNSEL)/ATTORNEYS (FAMILY LAW, FAILURE TO APPOINT NEW COUNSEL IN THE THIS CUSTODY PROCEEDING, AFTER RELIEVING FATHER’S PRIOR COUNSEL, VIOLATED FATHER’S RIGHT TO COUNSEL)/CUSTODY (FAMILY LAW , ATTORNEYS, FAILURE TO APPOINT NEW COUNSEL IN THE THIS CUSTODY PROCEEDING, AFTER RELIEVING FATHER’S PRIOR COUNSEL, VIOLATED FATHER’S RIGHT TO COUNSEL)/RIGHT TO COUNSEL (FAMILY LAW, CUSTODY, FAILURE TO APPOINT NEW COUNSEL IN THE THIS CUSTODY PROCEEDING, AFTER RELIEVING FATHER’S PRIOR COUNSEL, VIOLATED FATHER’S RIGHT TO COUNSEL)

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PARTY SUBJECT TO THIS ORDER OF PROTECTION PROCEEDING DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL.

The Second Department determined Family Court did not ensure that the party subject to an order of protection proceeding knowingly and intelligently waived his right to counsel:

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A party in a proceeding pursuant to Family Court Act article 8 has the right to be represented by counsel (see Family Ct Act § 262[a][ii]), but may waive that right provided that he or she does so knowingly, intelligently, and voluntarily … . In order to determine whether a party is validly waiving the right to counsel, the court must conduct a “searching inquiry” to ensure that the waiver is knowing, intelligent, and voluntary … . ” While there is no rigid formula to the court’s inquiry, there must be a showing that the party was aware of the dangers and disadvantages of proceeding without counsel'” … , and it is the “better practice” for the court to inquire about the litigant’s ” age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver'” … .

Here, the record was inadequate to demonstrate that the appellant validly waived his right to counsel … . Accordingly, the order must be reversed, and the matter remitted to the Family Court, Kings County, for a new hearing at which the appellant shall either appear with counsel or knowingly, voluntarily, and intelligently waive his right to counsel, and a new determination on the petition thereafter. Matter of Dixon v Marshall, 2017 NY Slip Op 05085, 2nd Dept 6-21-17

 

FAMILY LAW (PARTY SUBJECT TO THIS ORDER OF PROTECTION PROCEEDING DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL)/ATTORNEYS (FAMILY LAW, ORDER OF PROTECTION, PARTY SUBJECT TO THIS ORDER OF PROTECTION PROCEEDING DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL)/RIGHT TO COUNSEL (FAMILY LAW, ORDER OF PROTECTION, PARTY SUBJECT TO THIS ORDER OF PROTECTION PROCEEDING DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL)/ORDER OF PROTECTION (FAMILY LAW, RIGHT TO COUNSEL, PARTY SUBJECT TO THIS ORDER OF PROTECTION PROCEEDING DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL)

MOTHER’S PETITION FOR A DOWNWARD MODIFICATION OF CHILD SUPPORT SHOULD NOT HAVE BEEN DISMISSED BASED ON MOTHER’S PARAMOUR’S REFUSAL TO PROVIDE FINANCIAL DISCLOSURE.

The Fourth Department, reversing (modifying) Family Court, determined mother’s petition for a downward modification of child support should not have been dismissed based on the refusal of mother’s paramour to provide financial disclosure:

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… [T]he Support Magistrate erred in dismissing the mother’s cross petition for a downward modification of child support. The sole justification for that dismissal was the mother’s failure to provide financial disclosure from her paramour, a nonparty, who had filed an affidavit stating that he refused to provide financial disclosure to the court. “While certain penalties or sanctions may be appropriate for the individual conduct of [the mother] . . . , it is apparent that the actions of a nonparty weighed heavily in the decision to invoke the ultimate penalty’ “… . Under the circumstances of this case, we conclude that the court erred in dismissing the cross petition based on a nonparty’s refusal to disclose financial information voluntarily … . We therefore modify the order … by granting the mother’s objection in part and reinstating the mother’s cross petition for a downward modification of child support, and we remit the matter to Family Court for a new hearing on the cross petition. Matter of Deshotel v Mandile, 2017 NY Slip Op 04972, 4th Dept 6-16-17

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FAMILY LAW (CHILD SUPPORT, MOTHER’S PETITION FOR A DOWNWARD MODIFICATION OF CHILD SUPPORT SHOULD NOT HAVE BEEN DISMISSED BASED ON MOTHER’S PARAMOUR’S REFUSAL TO PROVIDE FINANCIAL DISCLOSURE)/CHILD SUPPORT (FAMILY LAW,  MOTHER’S PETITION FOR A DOWNWARD MODIFICATION OF CHILD SUPPORT SHOULD NOT HAVE BEEN DISMISSED BASED ON MOTHER’S PARAMOUR’S REFUSAL TO PROVIDE FINANCIAL DISCLOSURE)

MOTHER’S REQUEST FOR A CONTINUANCE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING SHOULD HAVE BEEN GRANTED.

The Fourth Department determined Family Court abused its discretion when it refused mother’s stress-related request for a continuation in this termination of parental rights proceeding:

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We agree with the mother that the court abused its discretion in denying her counsel’s request for a continuance when, due to emotional distress, the mother was unable to appear in the afternoon on the final day of her hearing. The determination whether to grant a request for an adjournment for any purpose is a matter resting within the sound discretion of the trial court … . Under the circumstances presented here, including that the issue is the termination of parental rights, we conclude that it was an abuse of discretion to deny the mother’s request for a continuance. We therefore vacate the order and remit the matter to Family Court to allow the mother to present evidence at a reopened fact-finding hearing… . Matter of Destiny G. (Laricia H.), 2017 NY Slip Op 04965, 4th Dept 6-16-17

FAMILY LAW (MOTHER’S REQUEST FOR A CONTINUANCE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING SHOULD HAVE BEEN GRANTED)/ADJOURNMENTS (FAMILY LAW, MOTHER’S REQUEST FOR A CONTINUANCE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING SHOULD HAVE BEEN GRANTED)

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CHILD’S TESTIMONY ALLEGING SEXUAL ABUSE NOT CORROBORATED, SEXUAL ABUSE ADJUDICATION REVERSED.

The Third Department, reversing Family Court, determined the child’s testimony alleged sexual abuse by father was not corroborated:

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A child’s mere repetition of an accusation to others, “however consistent and believable, is not sufficient to corroborate [his or her] prior out-of-court statements”… . “The corroboration requirement is not demanding and may be satisfied by any other evidence tending to support the reliability of the child’s previous statements” … . Nevertheless, “there is a threshold of reliability that the evidence must meet”… . Here, relative to the allegations that the father had sexual contact with the daughter, that threshold was not met.

This Court has found corroboration of a child’s out-of-court statements pertaining to sexual abuse in such evidence as medical indications of abuse … , expert validation testimony … , cross-corroboration by another child’s similar statements … , marked changes in a child’s behavior … , and sexual behavior or knowledge beyond a child’s years … . No such evidence was presented here. Instead, the undisputed testimony of all of the witnesses described the daughter as a social, highly verbal child with no medical evidence of abuse, no significant behavioral alterations, and no indications of inappropriate sexual knowledge or behavior. Matter of Lee-Ann W. (James U.), 2017 NY Slip Op 04920, 3rd Dept 6-15-17

 

FAMILY LAW (EVIDENCE, SEXUAL ABUSE, CORROBORATION, CHILD’S TESTIMONY ALLEGING SEXUAL ABUSE NOT CORROBORATED, SEXUAL ABUSE ADJUDICATION REVERSED)/SEXUAL ABUSE (FAMILY LAW, CORROBORATION OF CHILD’S TESTIMONY,  CHILD’S TESTIMONY ALLEGING SEXUAL ABUSE NOT CORROBORATED, SEXUAL ABUSE ADJUDICATION REVERSED)/EVIDENCE (FAMILY LAW, SEXUAL ABUSE, CHILD’S TESTIMONY ALLEGING SEXUAL ABUSE NOT CORROBORATED, SEXUAL ABUSE ADJUDICATION REVERSED)/CORROBORATION (FAMILY LAW, SEXUAL ABUSE, CHILD’S TESTIMONY ALLEGING SEXUAL ABUSE NOT CORROBORATED, SEXUAL ABUSE ADJUDICATION REVERSED)

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