In Matter of Malek v Kwiatkowski, --- N.Y.S.2d ----, 2011 WL 5984260 (N.Y.A.D. 3 Dept.) Petitioner (father) and respondent (mother) were the unmarried parents of two daughters (born in 2004 and 2008). The father commenced the proceeding for joint custody and visitation in June 2010, alleging that the mother had relocated with the children in April 2010. The mother appeared pro se by telephone at Family Court's first two hearings, but she withheld her out-of-state address from the father because she alleged that she and the children were fearful of him. At the third appearance, the mother's counsel appeared on her behalf and claimed that she was financially unable to travel to New York at that time. Although the mother's counsel raised the issue of the lack of personal jurisdiction over his client, Family Court stated that the mother had submitted to the court's jurisdiction, set a trial date and told counsel that the mother's failure to appear on that date would result in a default. At the scheduled trial date, however, Family Court directed the mother's counsel to again make a motion to dismiss based on lack of jurisdiction, determined that the mother had not waived service by appearing and dismissed the petition with prejudice. The Appellate Division reversed. It held that the Family Court erred in dismissing the case for lack of personal jurisdiction given the provision of the Uniform Child Custody Jurisdiction and Enforcement Act found at Domestic Relations Law 76(3), which provides that "[p]hysical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination." Further, under the circumstances, it was improper to dismiss the father's petition without first ordering service by an alternative method (see Domestic Relations Law 75-g [1][c] ). The mother had not revealed her address to the father, making normal service of process impractical. Additionally, the court had stated previously that the mother had submitted to its jurisdiction and ordered her to appear for a trial, thus giving the father no reason to believe that jurisdiction remained an issue. The court's peremptory resurrection of the issue when the mother did not appear on the trial date and its grant of the motion without affording the father an opportunity to serve the mother by alternative means was improper under these circumstances and it reversed and remitted for that purpose.

In Matter of Denton v Barr, --- N.Y.S.2d ----, 2011 WL 5922992 (N.Y.A.D. 1 Dept.) the Appellate Divison modified an order of the Family Court which awarded petitioner attorney's fees of $110,000 and child support arrears of $11,000 to award petitioner $11,742 in child support arrears and $5,322 in interest on the arrears, and to remand the matter for clarification of the amount of attorney's fees awarded to and reversed an order which directed that the $110,000 in attorney's fees be paid to petitioner and mailed to the offices of her counsel. On a prior appeal, the Court found that pursuant to the parties' stipulation of settlement, petitioner was "entitled to attorney's fees and remanded for a hearing to determine the amount of those fees" (69 AD3d 24, 32 [2009] ). It found that the court, in determining the amount of fees due to petitioner, relied on documents that constituted inadmissible hearsay, namely, billing statements of respondent's former attorney (cf. Seinfeld v. Robinson, 300 A.D.2d 208, 209 [2002] ). The matter was remanded to the trial court for clarification of the basis for the amount of fees awarded.

In Bushlow v Bushlow--- N.Y.S.2d ----, 2011 WL 5222909 (N.Y.A.D. 2 Dept.) the Appellate Division held that contrary to the plaintiff's contention, the parties' so-ordered stipulation of settlement dated January 26, 2009, which was incorporated, but not merged, into the judgment of divorce, did not comply with the requirements of the Child Support Standards Act (Domestic Relations Law 240[1-b][h]). The stipulation did not recite that the parties were advised of the provisions of the CSSA, and that the basic child support obligation provided for therein would presumptively result in the correct amount of support to be awarded. "[A] party's awareness of the requirements of the CSSA is not the dispositive consideration under the statute" (Lepore v. Lepore, 276 A.D.2d 677, 678, 714 N.Y.S.2d 343). Moreover, the parties' prorated shares of child care expenses and future reasonable unreimbursed health care expenses deviated from the CSSA guidelines, since they were not calculated based upon the parties' "gross (total) income as should have been or should be reported in the most recent federal income tax return" (Domestic Relations Law 240[1-b][b][5][I]; 240 [1-b][c][1]). Thus, the stipulation was required to contain the additional recitals setting forth, inter alia, the amount that the basic child support obligation would have been under the CSSA (see Domestic Relations Law 240[1-b][h]). Since the so-ordered stipulation of settlement did not contain the specific recitals mandated by the CSSA, its provisions, insofar as they concerned the plaintiff's basic child support payment and "add-ons" for child care and unreimbursed health care expenses, were not enforceable. Accordingly, the Supreme Court should not have incorporated them into the judgment of divorce. However, contrary to the plaintiff's contention, the remaining provisions of the so-ordered stipulation, and the parties' open-court stipulation entered into on September 9, 2008, continued to be enforceable. The record did not support a finding that these provisions were closely intertwined with the basic child support provisions. The matter was remitted to the Supreme Court, for a determination of the basic child support obligation, including the parties' prorated contributions towards child care and reasonable unreimbursed health care expenses, in accordance with the CSSA.

In Niagra County Department of Social Services ex rel Hueber v Hueber, --- N.Y.S.2d ----, 2011 WL 5433691 (N.Y.A.D. 4 Dept.) the Support Magistrate imputed income to Respondent based on the minimum wage for a period of over three years and ordered that he pay child support arrears for that period of $1,870.68. It was undisputed that the father was incarcerated for all but the last 4 ˝ months of that time period. The Appellate Divison affirmed. It held that the Support Magistrate did not abuse her discretion by imputing income to the father for the period during which he was incarcerated for the purpose of calculating his child support obligation. To the extent that the father's financial hardship was the result of his own wrongful conduct, he was not entitled to a reduction of his obligation to pay child support ( Matter of Knights v. Knights, 71 N.Y.2d 865, 866-867). The father's contention that the child support arrears should be reduced to $500 because his income was below the federal poverty income guidelines was not preserved for review inasmuch as it is raised for the first time on appeal. In any event, the Appellate Division stated that his contention was without merit because the father's income for the purpose of calculating his child support obligation includes imputed income (Family Ct Act 413[1][b][5][iv], [v] ), and thus his income was above the federal poverty income guidelines (see generally s 413[1][g]; Matter of Julianska v. Majewski, 78 AD3d 1182). The father's further contention that a local ordinance limiting the locations where registered sex offenders may be employed has prevented him from finding employment was not raised in his written objections to the Support Magistrate's order and thus was not preserved for review.

In Siskind v Siskind, --- N.Y.S.2d ----, 2011 WL 5429488 (N.Y.A.D. 2 Dept.), an action for a divorce, Supreme Court, inter alia, awarded the plaintiff child support of $34,000 per year, and maintenance of $65,000 per year, nontaxable to the plaintiff, commencing on May 1, 2010, until the plaintiff reaches her 65th birthday, directed the defendant to obtain and maintain a life insurance policy of $4,000,000 to secure the child support and maintenance payments, directed that certain funds retained by the defendant's attorneys in escrow be transferred to custodial accounts to pay for educational expenses for the parties' two college-age children, and that the defendant be responsible for payment of 90 percent of the college expenses of these two children not covered by the funds in the custodial accounts, equitably distributed the marital portions of the parties' investments by awarding the plaintiff $216,109.50, awarded the plaintiff an attorney's fee of $340,000, and denied that branch of his motion which was for a downward modification of his pendente lite child support and maintenance obligations. The Appellate Division modified. It held that in light of the parties' ages as well as their respective financial circumstances, the Supreme Court should have awarded the plaintiff $65,000 per year in maintenance until the earliest of her attainment of her 65th birthday, her remarriage, or her death. In found that there was insufficient evidence to justify Supreme Court's direction that maintenance be nontaxable to the plaintiff, which is "a departure from the norm envisioned by current Internal Revenue Code provisions" (Grumet v. Grumet, 37 A.D.3d 534, 536, 829 N.Y.S.2d 682). It also held that based on the evidence in the record, including the trial testimony, the defendant's financial records, and the tax returns of the parties and the defendant's businesses, the Supreme Court providently imputed income to the defendant and calculated the amount of child support by applying the statutory percentage of 17% to all of the defendant's income, which was $199,655, for child support purposes. While Supreme Court correctly required the defendant to obtain and maintain a life insurance policy in order to secure his maintenance and child support obligations, in view of those obligations, the amount of insurance that the defendant must maintain should be reduced from t$4,000,000 to $3,000,000. It held that the Supreme Court did not improvidently exercise its discretion in awarding an attorney's fee of $340,000 to the plaintiff in view of the relative financial circumstances of the parties, their ability to pay, the nature and extent of the services rendered, the complexity of the defendant's business endeavors, and the fact that the defendant litigated the issue of custody and visitation of the parties' daughter until it was settled by stipulation during the trial.

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