Court of Appeals Holds Non-custodial Parent Does Not Retain Decision-making Authority Pertaining to Education of Child Where Custodial Parent Granted Exclusive Custody of the Child and Decree and Custody Order Are Silent as to Right to Control Such Decisions.

In Fuentes v Board of Educ. of City of New York, --- NY3d ----, 2009 WL 1148636 (2009) Plaintiff Jesus Fuentes and his wife were divorced in 1996. Family Court entered an order granting the wife exclusive custody of the three children, including a son, M.F., who, due to a genetic disorder, was legally blind. M.F. attended public school in New York City and received special education services to accommodate his disability. In 2000, plaintiff believed that M.F.'s special education services and accommodations were inadequate and requested a reevaluation. When the Committee on Special Education for the Hearing, Handicapped, and Visually Impaired responded that M.F's services were adequate, plaintiff requested a hearing from the Impartial Hearing Office of the New York State Department of Education to review that determination. In 2001, plaintiff's request for a hearing was denied based on his status as the non-custodial parent of M.F. The Office concluded that because plaintiff was not the "person in parental relation" (Education Law 3212), he did not have the right to make educational decisions pertaining to M.F. and, consequently, did not have a right to request a hearing. Plaintiff then commenced an action in the United States District Court, alleging, among other things, that he was denied his right under the federal Individuals with Disabilities Education Act (IDEA) to a hearing to review the determinations of the Board of Education. After a dismissal, appeal, and remand on issues not pertinent to the certified question, the district court dismissed plaintiff's case for lack of standing under the IDEA. On appeal, the United States Court of Appeals for the Second Circuit found that no precedent from the Court of Appeals directly addressed the dispositive issue and certified a question, which the Court of Appeals reformulated: " Whether, under New York Law, the non-custodial parent of a child retains decision-making authority pertaining to the education of the child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree and custody order are silent as to the right to control such decisions. " As reformulated the certified question was answered in the negative. The Court of Appeals noted that it is well settled in the Appellate Division that, absent specific provisions in a separation agreement, custody order, or divorce decree, the custodial parent has sole decision-making authority with respect to practically all aspects of the child's upbringing. It declined to recognize an implied right of non-custodial parents to exercise decision-making authority with respect to their child's education notwithstanding the custody order's silence on this subject and emphasized the importance of parties determining these issues at the time of separation or divorce. The Court noted the distinction between a non-custodial parent's right to "participate" in a child's education and the right to "control" educational decisions. Generally, there is nothing which prevents a non-custodial parent (even one without any decision making authority) from requesting information about, keeping apprised of, or otherwise remaining interested in the child's educational progress. However, unless the custody order expressly permits joint decision-making authority or designates particular authority with respect to the child's education, a non-custodial parent has no right to "control" such decisions. This authority properly belongs to the custodial parent.

Not Necessary to Plead Justification as Defense to Abandonment Where Not a Claim That Would Be Likely to Take the Plaintiff by Surprise, and Does Not Raise Issues of Fact Not Appearing on the Face of the Complaint

In Gulati v Gulati, 60 A.D.3d 810, 876 N.Y.S.2d 430 (2 Dept 2009) the Appellate Division pointed out that pursuant to DRL 170(2), an action for a divorce on the ground of abandonment may be maintained when the defendant abandons the plaintiff for a period of one or more years. To establish entitlement to a divorce on this ground, a plaintiff must demonstrate that the defendant unjustifiably and without the plaintiff's consent abandoned the plaintiff for a period of one or more years. Here, the plaintiff made a prima facie showing of her entitlement to summary judgment on the ground of abandonment by submitting evidence that the defendant moved out of the marital residence in April 2003 without her consent, and without justification. In opposition, the defendant submitted evidentiary proof sufficient to raise triable issues of fact as to whether an abandonment occurred. The submissions raised issues of fact as to whether the plaintiff consented to his initial departure from the marital residence and to his continued absence from the home, and whether his actions were justified. Accordingly, plaintiff's motion for summary judgment on her cause of action for a divorce based on abandonment should have been denied. The Court rejected plaintiff's contention that the defendant waived the right to argue that he was justified in leaving and remaining away from the marital residence because he did not plead justification as an affirmative defense in his answer. Since abandonment cannot be established merely by evidence of a separation, a plaintiff seeking a divorce on this ground has an obligation to prove, as an element of his or her prima facie case, that the defendant unjustifiably left and remained away from the marital residence for a period of more than one year. Although the Court has recognized that it is permissible to plead justification as an affirmative defense (see Del Galdo v. Del Galdo, 51 A.D.2d 741, 379 N.Y.S.2d 479), it held that it is not necessary that it be so pleaded where, as here, it is not a claim that would be likely to take the plaintiff by surprise, and does not raise issues of fact not appearing on the face of the complaint (see CPLR 3018[b] ). In this regard, the Court noted that the plaintiff alleged in her complaint that the defendant had abandoned the marital residence without cause or provocation, and the defendant denied these allegations in his answer. Under these circumstances, the defendant, who has not defaulted, should not be precluded from arguing that he was justified in leaving and remaining away from the marital residence.

In Mahoney-Buntzman v Buntzman, --- N.Y.3d ----, 2009 WL 1227875 (2009) the Court of Appeals held that payments made to a former spouse and/or children of an earlier marriage, even if made pursuant to court order, are not the type of liabilities entitled to recoupment. In addition, it held that a student loan, which is both incurred and fully paid for during marriage, is a marital obligation for which responsibility is to be shared between the parties. It also held that as a matter of public policy, a "party to litigation may not take a position contrary to a position taken in an income tax return." (Click here for expanded discussion)

In Johnson v Chapin, - N.Y3d -, 2009 WL 1227869 (2009) the Court of Appeals, in an opinion by Judge Pigott, held that when a pendente lite award of maintenance is found at trial to be excessive or inequitable, the Court may make an appropriate adjustment in the equitable distribution award. However, it rejected the husband's claim that he should be entitled to a credit for excess child support payments pointing out that it has long been held that there is a "strong public policy against restitution or recoupment of support overpayments". (Click here for expanded discussion)

The New Rules of Professional Conduct, which are based on the American Bar Association Model Rules of Professional Conduct, introduce a number of important ethics changes for New York lawyers. They are intended to ease ethical research and guidance by New York lawyers, and are in addition to the Rules in 22 NYCRR Parts 1210, 1215, 1230 and 1400. Some of the rules impose new ethical obligations on New York lawyers. One rule obligates a lawyer to act with reasonable diligence and promptness' in representing a client (22 NYCRR Part 1200, Rule 1.3[a]). Another rule requires a lawyer to keep the client reasonably informed about the status of the matter, and to promptly comply with a client's reasonable requests for information' (22 NYCRR Part 1200, Rule 1.4[a][3], [4]). In some cases, the new rules liberalize a former New York rule. For example one rule sets forth a lawyer's duty and obligation to a "prospective client," including a client with whom the lawyer never enters into an attorney-client relationship. It expressly exempts from the benefit of the rule's protections potential clients who consult with a lawyer merely for the purpose of disqualifying the lawyer from representing an adverse party. Another rule allows attorneys to disclose confidential information to advance the best interests of the client when it is either reasonable under the circumstances or customary in the professional community (22 NYCRR Part 1200, Rule 1.6(a)(2)). An Article entitled Rules of Professional Conduct for Family Law Attorneys, written by Joel R. Brandes, the author discusses the rules that particularly effect New York Matrimonial and Family law attorneys. (Click here to download the Article )

Failure to Provide “Paper Trail” Documenting Source of Money Used to Purchase Marital Residence Not Fatal to Separate Property Claim. Court Did Not Violate DRL 248 by Ordering That Maintenance Would Terminate in the Event That Wife Resided with an Unrelated Adult Male for More than 30 Days

In Juhasz v Juhasz, --- N.Y.S.2d ----, 2009 WL 281303 (N.Y.A.D. 4 Dept.) the parties were married in 1990 and had three minor children. The Appellate Division held that Supreme Court properly determined that a brokerage account with Julius Baer (JB account) was defendant's separate property inasmuch as it was funded entirely from defendant's premarital sale of stock in a family business. The court erred in failing to credit defendant for his contribution of separate property toward the purchase of the marital residence. A spouse is entitled to a credit for his or her contribution of separate property toward the purchase of the marital residence, including any contributions that are directly traceable to separate property. Before the marriage, defendant purchased a home for $240,000 with funds that he derived from his sale of the stock. During the marriage, defendant contributed $200,000 from the JB account to purchase a vacation home for approximately $450,000, and he secured a mortgage for the balance. That mortgage was also paid with funds from the JB account. The parties subsequently sold both homes and purchased the marital residence for $216,000. The Appellate Division concluded that defendant was entitled to a credit of $216,000 for his contribution of separate property to purchase the marital residence, and modified the amended judgment accordingly. While defendant did not provide a paper trail documenting the source of the money used to purchase the marital residence, nothing in either party's testimony suggested that any other possible source for the money existed. In view of its determination concerning defendant's entitlement to a credit for separate property with respect to the marital residence, the Appellate Division rejected the contention of plaintiff on her cross appeal that she should have been awarded title to the marital residence as a matter of equity. It also rejected defendants contention that he was entitled to a credit for separate property that he contributed for renovations to the marital residence. Although the marital residence was appraised for $420,000 four months prior to the trial, defendant failed to establish that the separate property funds spent on renovations added value to the residence apart from the appreciation in value resulting from market forces over the period of ownership and, if so, the amount by which the value of the property was increased. It also held that Supreme Court properly imputed income to defendant of $180,000 per year. The record established that defendant derived substantial income from his investments. The amount awarded for child support was vacated because the court failed to articulate any basis for that portion of the award based on the parental income exceeding $80,000. It modified the amended judgment by vacating that amount, and remitted the matter to Supreme Court to determine defendant's child support obligation in compliance with the Child Support Standards Act. It concluded that the court properly ordered defendant to continue to pay for the private school education of the children. It also rejected the contention of plaintiff on her cross appeal that the court violated Domestic Relations Law 248 by ordering that maintenance would terminate in the event that she resided with an unrelated adult male for more than 30 days. That section, entitled "Modification of judgment or order in action for divorce or annulment," provides in relevant part that a husband may apply for modification of a judgment of divorce if the wife remarries or if she is "habitually living with another man and holding herself out as his wife, although not married to such man." The court held that here it was concerned with an initial award of maintenance and not an application to modify an existing judgment or order. Inasmuch as courts have the discretionary power to "fashion a fair and equitable maintenance award" it concluded under the circumstances of this case that the condition imposed by the court is not improper (cf. Florio v. Florio, 25 AD3d 947, 950).

 

In Sarlo-Pinzur v Pinzur, --- N.Y.S.2d ----, 2009 WL 387201 (N.Y.A.D. 2 Dept.) Supreme granted the husband's attorney's motion to withdraw as counsel and refused to adjourn the trial further following counsel's withdrawal. Upon his subsequent default in appearing at the trial able distribution, Supreme Court awarded the wife maintenance of $500 per month for four years and equitably distributed the marital property. The Appellate Division dismissed the appeal from the judgment, except insofar as it brought up for review the granting of the husband's attorney's motion to withdraw as counsel and the denying of the husband's request to adjourn the trial, in effect, pursuant to CPLR 321(c). It held that the judgment from which the husband appealed was entered on default, since he left the courtroom as the trial commenced. Although no appeal lies from a judgment entered on the default of the appealing party (CPLR 5511), an appeal from such a judgment does bring up for review those 'matters which were the subject of contest' before the Supreme Court. Here, those matters consisted of the granting of the motion of the husband's attorney to withdraw as counsel and the Supreme Court's denying of the husband's request to adjourn the trial, in effect, pursuant to CPLR 321(c). It pointed out that as a general rule, CPLR 321(c) requires that there be a 30-day stay of all proceedings after counsel is permitted to withdraw over the client's objection. Where, however, the attorney's withdrawal is caused by a voluntary act of the client, the court has the discretion to permit the matter to proceed without such a stay. The husband's counsel moved for leave to withdraw on the ground that the husband had refused to provide financial information necessary to the trial of the case. The motion was properly granted on the basis of the husband's failure to cooperate with his counsel. Supreme Court providently exercised its discretion in refusing to adjourn the trial further. COMMENT: In Warner v Houghton, 43 A.D.3d 376, 841 N.Y.S.2d 499 (1st Dept., 2007), affirmed 10 N.Y.3d 913, 862 N.Y.S.2d 321 (2009) defendant did not appear at a compliance conference and the matter was set down for an inquest on the issue of equitable distribution. After the inquest, at which he did not appear, the court granted a divorce, and made awards concerning the request for equitable distribution and counsel fees. The Appellate Division held that while the issue of whether the divorce was properly granted may not be reviewable, the distribution award was a separate issue, and was still subject to review, even after a default. It found that the defendant was improperly precluded and modified the awards. On review of submissions pursuant to 22 NYCRR 500.11 the Court of Appeals held that CPLR 5511 does not bar review of the equitable distribution components of a divorce judgment where, as here, defendant was improperly precluded from contesting the awards. It held that the Appellate Division did not abuse its discretion as a matter of law in vacating Supreme Courts preclusion order.