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Service of Trial Subpoena on Attorney
Permitted as of January 1, 2008
CPLR 2303-a has been enacted to reduce the
need for service of trial subpoenas on a party or person within the party's
control. It provides that where the attendance at trial of a party or person
within the party's control can be compelled by a trial subpoena, that
subpoena may be served by delivery in accordance with CPLR 2103 (b) to the
party's attorney of record. CPLR 2303 allows for service of a subpoena in
the same manner as all other papers which are served by one attorney on
another pursuant to CPLR. 2103. This provision only modifies the method of
service of the subpoena. It does not change the requirement for a fee to be
provided with the subpoena. Laws of 2007, Chapter 192, Effective January 1,
2008.
Fine for Violating Subpoena Increases
to $150 as of January 1, 2008
CPLR 2308(a) was amended to increase
the maximum penalty for disobeying a judicial subpoena from $50 to $150.
Laws of 2007, Chapter 205, Approved July 3, 2007 and effective January 1,
2008.
Domestic Relations Law 177 Enacted
Effective November 1, 2007
Domestic Relations Law 177 becomes
effective November 1, 2007. Subdivision 1 provides that provide that prior
to accepting any agreement between the parties in an action for a divorce,
the judge is required to ensure that the agreement contains a provision
relating to the health care coverage of each individual. The agreement must
either provide for the future coverage of the individual, or state that the
individual is aware that he or she will no longer be covered by his or her
spouse's health insurance plan. Every agreement accepted by the court must
contain the follow ingstatement, signed by each party, to ensure that the
provisions of this subdivision are adhered to:
" I, (spouse), fully understand that upon the entrance of this divorce
agreement, I may no longer be allowed to receive health coverage under
my former spouse's health insurance plan. I may be entitled to purchase
health insurance on my own through a COBRA option, if available, other-
wise I may be required to secure my own health insurance.
____________________________ ____________
(Spouse's signature) (Date)"
If, prior to accepting an agreement and entering the judgement thereon, the
judge determines that the provisions of DRL 177 have not been met, the judge
must require the parties to comply with the this section and may grant a
thirty day continuance to afford the parties an opportunity to procure their
own health insurance coverage.
Subdivision 2 provides that before rendering a decision in an action for
divorce, the judge must ensure that he or she notifies both parties that
once the judgement is entered, a person may or may not be eligible to be
covered under his or her spouse's health insurance plan, depending on the
terms of the plan. Laws of 2007, Ch 412.
New Domestic Relations Law 250
Applies to Prenuptial and "Opting-out" Agreements
Domestic
Relations Law 250 was enacted effective July 3, 2007. It is intended to
toll the statute of limitations for causes of actions and defenses related
to prenuptial and post-nuptial ("opting-out") agreements until both parties
have made appearances in a matrimonial action. It enacts a three year
statute of limitations for commencing an action or proceeding or for
claiming a defense that arises from an agreement made pursuant to DRL 236
[B][3] entered into prior to a marriage, or during the marriage, but prior
to the service of process in a matrimonial action or proceeding. The statute
of limitations is tolled until process has been served in a "matrimonial
action or proceeding", or the death of one of the parties. DRL 250 does not
apply to a separation agreement or an agreement made during the pendency of
a matrimonial action or in settlement of a matrimonial action. The
provisions of DRL 250 do not apply to prenuptial agreements where the
commencement of an action on the agreement was barred under the CPLR in
effect immediately prior to July 3, 2007, its effective date.
Cost of Living (Cola) Child Support
Provision Interpreted as "Opting Out" of CSSA Guidelines Requiring Parties'
Reasons for Deviating
In Fasano v Fasano, --- N.Y.S.2d ----,
2007 WL 2729684 (N.Y.A.D. 2 Dept.) the parties separation agreement dated
October 21, 1993, provided, inter alia, that until October 31, 1996, the
plaintiff would pay the defendant maintenance of $5,416.66 per month and
child support of $833.33 per month. After October 31, 1996, the plaintiff's
maintenance obligation would end and his monthly child support obligation
would increase to $3,333 .33. The child support provisions of the separation
agreement also obligated the plaintiff to pay increased child support in the
event of increases in the cost of living, as reflected in the Consumer Price
Index for the New York Metropolitan area. The separation agreement was
incorporated, but not merged, into the judgment of divorce dated February
17, 1994. The Appellate Division held that the child support provision which
set the plaintiff's child support obligation at the sum of $3,333.33 per
month was not invalid on the ground that it failed to calculate the
presumptively correct amount of child support pursuant to the Child Support
Standards Act. A provision stating the correct amount of the basic child
support obligation under the CSSA is not required unless it is apparent that
the parties have "opted out" of the basic child support obligation pursuant
to the CSSA. Here, the child support obligation in the sum of $3,333.33 per
month did not differ significantly from the correct amount as calculated by
a strict application of the statute, and thus, such provision in the
separation agreement cannot reasonably be interpreted as indicating that the
parties intended to "opt out" of the basic child support obligation pursuant
to the CSSA. However, the plaintiff correctly contended that the provision
contained in paragraph 5, Article F, of the separation agreement, allowing
for adjustments to his monthly child support obligation based on cost of
living increases (hereinafter the COLA provision), failed to comply with
Domestic Relations Law 240(1-b)(h). The annual increases in the child
support obligation permitted under the COLA provision represented potential
deviations from the basic child support obligation and, therefore, can be
interpreted as providing for an "opting out" of the CSSA guidelines. Since
the separation agreement failed to state the parties' reasons for deviating
from the CSSA guidelines with respect to the potential COLA increases, the
COLA provision violated Domestic Relations Law 240(1-b)(h) and should have
been set aside.
Proper to Grant Extension of Time to
Serve Summons After Traverse Hearing Finds Service Not Effected
In Yamamoto v Yamamoto, ---
N.Y.S.2d ----, 2007 WL 2445200 (N.Y.A.D. 1 Dept.) the Supreme Court denied
plaintiff's request that service of the summons and complaint on defendant
be permitted by personal delivery to his attorneys but granted her motion
for an extension of time to serve the summons and complaint and permitted
her to apply for reimbursement of attorney fees and costs to defray the
expense of effectuating service on defendant in Japan, subject to
reallocation at trial, from the escrowed proceeds of the sale of the marital
home. Thereafter, Supreme Court granted defendant's motion to confirm the
Referee's report to the extent that the Referee found defendant had not been
personally served and granted plaintiff's motion to extend her time to serve
defendant, in accordance with the prior order. The Appellate Division
affirmed the orders. It held that Supreme Court did not improvidently
exercise its discretion in granting plaintiff an extension of time to serve
defendant, pursuant to the Hague Convention on the Service Abroad of
Judicial and Extrajudicial Documents in Civil or Commercial Matters (20 UST
361 [1965] ). Although it found that defendant had not been properly served,
given plaintiff's demonstration of reasonably diligent attempts to serve the
defendnat within the 120-day period after filing the summons with notice
(CPLR 306-b), her reasonably prompt request for the extension, and the
absence of prejudice to defendant, who had long had notice of plaintiff's
claims the extension was warranted in the interest of justice. In view of
the procedures in place for effectuating service upon defendant in Japan,
and the absence of any evidence that service in that manner was
"impracticable," the court properly denied plaintiff's request, pursuant to
CPLR 308(5), for an order directing that service on defendant be effectuated
by personal delivery of process upon his attorneys. Given defendant's
alleged removal to Japan and his alleged failure to provide any support for
his infant daughter, who allegedly lived in Manhattan with her mother, the
court providently granted plaintiff leave to apply for funds to defray the
additional expense of effectuating personal service upon defendant in Japan
pursuant to the Hague Convention on the Service Abroad. Defendant, who
appeared and testified at the traverse hearing and, according to plaintiff,
allegedly maintains an apartment in Manhattan, may, as suggested by the IAS
court, avoid any more delay and expense in having this marital and
child-support dispute resolved by authorizing his New York attorney to
accept service of process on his behalf.
Unauthorized Ex Parte Conversatons
May Be Basis to Disqualify Court Appointed Evaluator.
In Reback v Reback, 41 A.D.3d 814, 839
N.Y.S.2d 516 (2d Dept.,2007) Supreme Court appointed a neutral financial
evaluator to consider the value of the parties' assets (i.e., the
plaintiff's real estate license and the defendant's businesses). Pursuant to
that order, prior to the completion of the evaluator's report, ex parte
communications were prohibited except that a party could advise the
evaluator in writing about assets he or she thought the other spouse owned.
The evaluator was directed to communicate with the parties in writing with
copies to counsel for both sides or by conference call. The Appellate
Division found that ex parte conversations between the court appointed
evaluator and the plaintiff and her counsel were not authorized by the order
appointing the evaluator and therefore were improper. It held that the
question of whether the impropriety was sufficient to disqualify the
evaluator depends on the nature of the conversations. If, as the plaintiff
contended, the conversations related solely to ministerial matters, the
impropriety would not be sufficient to justify disqualification of the
evaluator. It was inappropriate to place the burden of proof as to the
nature of those conversations on the defendant There should have been a
hearing to determine whether the nature of those conversations would justify
disqualification of the evaluator.
Court of Appeals Holds That
Adoptive Mother Who Surrenders Child Liable For Child Support.
In Matter of Greene County Department of Social
Services o/b/o Ward v Ward, --- N.E.2d ----, 2007 WL 1672315 (N.Y.) Dawn
Ward, an unmarried registered nurse, adopted a special needs child on June
20, 2002. He was born prematurely at 27 weeks. Although Jeffrey tested
positive for cocaine and syphilis at birth, Ms. Ward was informed that his
mother had not habitually used drugs and alcohol during her pregnancy, and
that Jeffrey was a "quiet, gentle and pleasant child." Jeffrey was placed
with Ms. Ward on May 3, 2001. At the time of placement, he was three years
old, weighed 25 pounds, drank from a bottle, was non-verbal, and had been
diagnosed with mild cerebral palsy and asthma. Ms. Ward enrolled Jeffrey in
an early intervention program and he underwent surgeries to improve his
swallowing and breathing capabilities. His emotional and mental development
was delayed. In 2001 and 2002, Jeffrey exhibited increasingly aggressive
behavior. He began eating sand and grass, biting, licking and spitting at
adults, and exhibiting bouts of uncontrolled yelling. By October 2002,
Jeffrey's behavior had deteriorated even further. He regressed in toileting,
dressing, and eating. His behavior at daycare now included head-banging,
hitting and kicking other children and throwing chairs and objects. In
February 2003, he was diagnosed with pervasive developmental disorder.
Jeffrey's play therapist advised Ms. Ward that Jeffrey had significant
neurological issues resulting from exposure to drugs and alcohol in utero.
Another psychiatrist diagnosed him with attachment disorder,
obsessive-compulsive disorder and autism. Jeffrey's behavior did not
improve. He injured both himself and Ms. Ward during the summer of 2003, and
had frequent bouts of uncontrollable behavior. On September 2, 2003, Ms.
Ward went to the Department of Social Services and asked for a temporary
relinquishment of parental rights. When DSS refused to accept a temporary
relinquishment, Ms. Ward decided that returning Jeffrey to her home would
pose too great a risk to his and her safety, and permanently surrendered her
parental rights before a Family Court judge. In 2004 a support magistrate
found her liable for child support as the adoptive parent of Jeffrey from
the date of surrender. Family Court charged Ms. Ward with "$133.54 weekly
child support commencing February 4, 2005 and $10,015.50 arrears from
September 2, 2003 through January 28, 2005. The Appellate Division affirmed.
In the Court of Appeals Ms. Ward contended that she should be exempt from
the child support obligation as the single "parent" of a "child born out of
wedlock" and that in the alternative DSS should be equitably estopped from
enforcing the support order. It disagreed. It pointed out that an adoptive
parent assumes all of the liabilities of a biological parent. Upon voluntary
surrender, a parent retains the obligation to provide financial support for
a child until he or she is adopted or turns twenty-one. Although the Social
Services Law carves out a limited exception from this support requirement
for children born out of wedlock to unwed mothers (see SSL 398[6][f]; 18
NYCRR 422.4), this exception did not apply to Ms. Ward. As Jeffrey was not
"begotten and born" to her, she did not qualify as the "mother of a child
born" out of lawful matrimony (FCA 512). Like the Appellate Division, the
Court acknowledged the apparent harsh result in this highly unusual case,
but could not conclude that the doctrine of estoppel was applicable against
the State.
New York State Court Finds No Grave Risk of
Physical or Psychological Harm Under Hague Convention
In State ex rel Geiser
v Valentine, 11/16/2007 NYLJ 30, (col. 3) (Sup.
Ct, Richmond Co., Minardo, J.) Justice Minardo of the Richmond County
Supreme Court found that the respondent had failed to meet that burden of
establishing by clear and convincing evidence that the children faced a
grave risk of physical or psychological harm or that returning them to
Switzerland will place the children in an intolerable situation. Respondent
had filed allegations of abuse and misconduct with the Office of the
Protection of Adults and Minors, a Swiss child protection agency, which
conducted a full and complete investigation. Before the Office of the
Protection of Adults and Minors, as well as the police investigation,
finished their reports and findings, the respondent left Switzerland with
the children traveling to New York without informing the petitioner. The
Court pointed out that soon after respondent left Switzerland, the Office of
the Protection of Adults and Minors released their reports and findings on
June 28, 2007. On July 5, 2007 the Swiss Police concluded their
investigation and issued a report. Both the Police and the Office of
Protection of Adults and Minors found no basis or merit to the allegations
of abuse to the children.
[Click here for expanded discussion]
Notice of Motion and Cross
Motion Service Provisions of CPLR 2214 and 2215 Effective July 3, 2007
Prior to July 3, 2007 CPLR 2214 (b) had provided that a demand could be
made for the service of answering affidavits at least 7 days before the
return date of the motion by serving the notice of motion at least 12 days
before the return date and including such a demand in the notice of motion.
At the same time CPLR 2215 provided that the notice of cross motion could be
served 3 days in advance of the return date of the motion. It did not matter
whether or not the additional four days time was given. Many attorneys would
serve the notice of cross motion by mail, which would not always be received
by their adversary before the return date of the motion. The party serving
the cross-motion could mail it and the time between mailing and delivery was
time lost to the party who had to respond.
CPLR 2214
(b) was amended effective July 3, 2007 to allow both parties to have
adequate time to prepare their papers. It now provides that where a notice
of motion is served at least 16 days before the return date of the motion it
may demand that answering affidavits as well as any notice of cross-motion,
with supporting papers, if any, be served at least 7 days before the return
date of the motion. The provision relating to the notice of cross motion is
new.
CPLR 2215
was also amended effective July 3, 2007 to require that any notice of
cross-motion, with supporting papers, if any, must be served at least 7 days
before the return date of the motion if a notice of motion served at least
16 days before the return date so demands. If the notice of cross motion and
any supporting papers are served by mail they must be served three days
earlier than as prescribed in CPLR 2103(b) and if they are served by
overnight delivery service, they must be served one business day earlier
than as prescribed in CPLR 2103 (b).
Hague
Convention Decision By Third Circuit Construes Wishes of Child Exception
Narrowly
In
Yang v Tsui, 499 F.3d 259, 2007 WL 2377463
(C.A.3 (Pa.)) the Third Circuit construed the wishes of the child exception
narrowly where it found that it was the passage of time during the years of
wrongful retention and the litigation of the case that created the childs'
desire to remain in the United States.
Hague Convention on the International Recovery of
Child Support and Other Forms of Family Maintenance Adopted
On November 23, 2007 the new
Hague Convention on the International Recovery of
Child Support and Other Forms of Family Maintenance
and a
Protocol on the Law Applicable to Maintenance
Obligations
were adopted by the Twenty-First Diplomatic Session of
the Hague Conference on Private International Law. The major features of the
new Maintenance Convention are a broadly based system for the recognition
and enforcement of maintenance decisions made in Contracting States combined
with expedited procedures; a system of co-operation between Central
Authorities in each country to facilitate the processing of international
applications; the provision for maintenance applicants of virtually
cost-free services, including when needed free legal assistance in all the
Contracting States; and an obligation to provide prompt and effective
measures to enforce support orders coming from other countries. The
Protocol contains rules which will guide judges on the question of the law
to be applied in international maintenance cases. The new Maintenance
Convention, which will enter into force after having received its second
ratification, was signed by the United States that day.
The 2007
New York Law Reports Style Manual, Official Edition is now available online
on the website of the State Reporter. It is the official
Style Manuel for New York attorneys and judges and is published by the New
York State Law Reporting Bureau. The Manuel was prepared by Gary Spivey, the
State Reporter, and Charles A. Ashe, William J. Hooks, Michael Moran,
Katherine D. LaBoda, Chilton B. Latham, Kathleen B. Hughes, and Cynthia A.
McCormick.
Note:
The New York Law Reports Style Manuel is the
only official citation authority in New York
- the "Blue Book" is not
authoritative and does not contain the correct method of citation for use in
New York State Courts. The Manuel states: "Deviations from the rules stated
in this Manual are permitted where application of a rule would adversely
affect the clarity or readability of an opinion". It points out at the
beginning that "New York decisions shall be cited from the official reports,
if any. (CPLR 5529 [e].)"
Highlights of the 2007 Edition:
- A new rule (2.1 [a] [1]) requires
that published New York decisions be cited by the case names specified in
the newly published Official Case Name and Citation Locator (http://iapps.courts.state.ny.us/lawReporting/SearchCitation)
and in the "Cite Title As" fields of the on-line Reports.
- The use of supra to indicate that an
authority has been cited previously is no longer permitted with shortened
citations (1.3 [b] [2]) and is no longer required for any subsequent
reference (1.3 [c]).
- The placement of a comma between a
citation signal and the citation is no longer permitted (1.4 [a]).
- The requirement to supply print page
references where the electronic source cited does not provide them has been
eliminated (1.5 [e]; 7.1 [a]).
- Formats for citing tabular or
abstracted cases (table in print, full text on line) have been added (2.2
[b] [2]; 2.4 [a] [2]).
- The restrictions on citing Internet
materials have been eased to permit Internet citations where the cited
material is not readily available in another form (2.4 [a] [3]; 7.1 [c]
[1]).
- A format for citing weblogs has been
provided (7.1 [c] [4]).
- A new rule clarifies that the word
"the" is not capitalized as part of the name of an entity (e.g., the New
York Times) (10.4 [c]).
Other rules adopted in 2004:
- Permit the use of the citational
footnote style. (1.2 [e])
- Make mandatory the formerly optional
use of year of decision in full case citations (1.1 [a]).
- Require that an elision is to be
indicated by three ellipsis points (. . .), not by asterisks (11.1 [c]). For
simplicity, the use of three ellipsis points, rather than four points (three
ellipsis points and a period), to indicate the omission of language between
quoted sentences now is preferred (11.1 [c]).
Supreme Court Now Required to
Appoint Counsel For Certain Indigent Litigants
Section 35 of the Judiciary Law was amended by
Laws of 2006, Ch 538, effective August 16, 2006 to add a new subdivision 8
which requires supreme court to appoint counsel for indigent litigants in
the same manner as family court is required to appoint such counsel. It
provides that whenever supreme court shall exercise jurisdiction over a
matter which the family court could have exercised jurisdiction had such
action been commenced in family court, supreme court shall appoint counsel
for indigent persons in the same manner as required by section 262 of the
family court act. Family Court Act 262(a) provides which persons have the
right to the assistance of counsel. When such person first appears in court,
the judge must advise such person before proceeding that he or she has the
right to be represented by counsel of his or her own choosing, of the right
to have an adjournment to confer with counsel, and of the right to have
counsel assigned by the court in any case where he or she is financially
unable to obtain the same. Those persons who might appear before the Supreme
Court, in a matrimonial action, for which the court is required to appoint
counsel are the petitioner and the respondent in any proceeding under
article eight of the act (family offenses); the parent of any child seeking
custody or contesting the substantial infringement of his or her right to
custody of such child, in any proceeding before the court in which the court
has jurisdiction to determine such custody; any person in any proceeding
before the court in which an order or other determination is being sought to
hold such person in contempt of the court or in willful violation of
aprevious order of the court, except for a contempt which may be punished
summarily under section seven hundred fifty-five of the judiciary law;
(viii) the respondent in any proceeding under article five of this act in
relation to the establishment of paternity. Ed Note: The failure to advise a
party of the right to counsel and to an adjournment to obtain counsel before
the court made any orders has been held to be reversible error. See
generally Perez v Arebalo, 13 AD3d 85, 786 NYS2d 441(1st Dept. 2004)
Patricia L. v Steven N. 119 AD2d 221 (2d Dept. 1986); Mahoney v Doring 256
AD2d 1112 (4th Dept.,1998)
Reprehensible and Highly Offensive Behavior Is Not
Necessarily Sufficient to Establish Cruelty
In Gross v Gross, 836 N.Y.S.2d 166 (1st
Dept.,2007) the Appellate Division reversed on the law a judgment of divorce
granted to the wife on the ground of cruel and inhuman treatment. The Court
pointed out that plaintiff was asked at trial whether defendant had ever
"physically force[d] himself on [her] sexually." In response, plaintiff
testified that "I would have to say yes. It's only one time that, really
where he hurt me." Apparently by way of explanation, plaintiff went on to
state that defendant "[r]ammed [her] up against the wall" in the bathroom of
their residence. Plaintiff did not elaborate about what she meant in stating
that defendant had "force[d] himself on [her] sexually." The Court found
that in its vagueness and generality, this testimony could include conduct
ranging from the criminal (e.g., forcible rape) to the merely obnoxious.
Plaintiff offered no evidence that she had sustained any injuries as a
result of this incident and testified on cross-examination that she did not
suffer any physical injuries as a result of the incident. Plaintiff also
testified that defendant, on many occasions, "physically grabbed [her]."
When asked to describe how defendant "grabbed" her, plaintiff stated: "[h]e'll
grab me, he'll pull me down the hall, he'll block me so I can't leave the
room, throw me on the bed, push me against the wall." No testimony was
elicited from plaintiff that she sustained any injuries as a result of
defendant's conduct. The Court held that reprehensible and highly offensive
behavior is not necessarily sufficient to establish
cruel-and-inhuman-treatment. Plaintiff's uncorroborated testimony regarding
unwanted physical contact was vague and general, and no evidence was adduced
from plaintiff regarding the effects, if any, of defendant's conduct on her
physical or mental well-being. Plaintiff denied suffering any injuries as a
result of the incident which occurred in the bathroom. She presented no
evidence regarding the effects, if any, on her mental well-being of
defendant's conduct in entering the bathroom of their residence while
plaintiff was showering. While a party seeking a divorce on the ground of
cruel and inhuman treatment is not required to produce medical evidence
demonstrating the adverse effects of the defendant's behavior, the absence
of such evidence may be relevant. The absence of medical evidence was
particularly telling in light of plaintiff's failure to offer any other
evidence tending to demonstrate that defendant's conduct was "harmful to the
plaintiff's physical or mental health and makes cohabitation unsafe or
improper" . The Court felt that it was left to speculate as to the effects,
if any, of defendant's conduct on plaintiff's physical and mental
well-being. Moreover, other evidence militated against the conclusion that
plaintiff satisfied the substantial burden the law imposes upon her. The
parties were married for 37 years, eight months at the time of trial, a
marriage of long duration requiring a high degree of proof of cruel and
inhuman treatment; the parties continued to reside together in the marital
residence through the trial; and the parties were able to talk to each other
in a civilized manner, have dinner together every night, go out for meals
and to the movies and attend social functions. The evidence failed to
demonstrate, with a high degree of proof, that the conduct of the defendant
so endangers the physical or mental well being of the plaintiff as to render
it unsafe or improper for the plaintiff to cohabit with the defendant".
No Authority to Issue Medical Execution in Absence
of Determination That Health Insurance Benefits Are Available
In Matter of Oneida County Department of Social Services, on Behalf of
Heidi S. V Paul S., --- N.Y.S.2d ----, 2007 WL 1652167 (N.Y.A.D. 4 Dept.)
the Support Magistrate's order set forth that health insurance "is not
available and affordable at this time." Petitioner filed an objection
contending that the Family Court Act and the Domestic Relations Law both
require support orders to contain language directing any legally responsible
relative to provide health insurance benefits when such coverage becomes
available if such coverage is not presently available. Family Court
determined that, although petitioner was correct that the language with
respect to health insurance benefits was mandatory, the decision whether
benefits were available, i.e., reasonable in cost, should be made by the
court, and the Support Magistrate had determined that health insurance
benefits were not available. The court granted the objection to the extent
of providing that the parties shall notify petitioner "in writing regarding
any change in health insurance benefits available to them." The court also
ordered that petitioner "shall not issue a medical execution without a
determination made by a court of competent jurisdiction that the health
insurance benefits are 'available' " within the meaning of Family Court Act
s 416(d)(2). The Appellate Division rejected Petitioner’s argument that the
court erred in limiting petitioner's authority to issue a medical execution
pursuant to CPLR 5241(b)(2)(I). CPLR 5241(b)(2)(I) provides that, "[w]here
the court orders the debtor to provide health insurance benefits for
specified dependents, an execution for medical support enforcement may ...
be issued by the support collection unit." Pursuant to Family Court Act
416(h), the court shall direct the legally responsible relative to enroll
the eligible dependents to receive health insurance benefits "[w]here the
court determines that health insurance benefits are available" ( 416[c],
[d][2] ). " 'Available health insurance benefits' [are] any health insurance
benefits that are reasonable in cost and that are reasonably accessible to
the person on whose behalf the petition is brought" (416[d][2] ). The
Support Magistrate determined that health insurance benefits were not
available, and respondent was not ordered to provide such benefits. Thus,
the prerequisite for the issuance of a medical execution, i.e., an order
directing a debtor to provide health insurance benefits (see CPLR
5241[b][2][I] ), was not met. Therefore, the court properly determined that
petitioner lacked authority pursuant to CPLR 5241(b)(2)(I) to issue a
medical execution in the absence of a determination by the court that health
insurance benefits are available.
Lump Sum Child Support Award of $92,480 Upheld Where Father Received
Personal Injury Settlement
In Walker v Gilbert, --- N.Y.S.2d ----, 2007 WL
1216203 (N.Y.A.D. 3 Dept.) the Appellate Division pointed out that a
lump-sum payment received by a parent in a tort action is not excluded from
consideration in determining child support. One approach where a parent
receives a nonrecurring large sum of money is to increase the weekly (or
other periodic payment) support obligation by applying a reasonable rate of
return to the funds received and imputing that amount as income. This may be
a preferred approach in most situations involving a lump-sum settlement.
However, directing the payment of a portion of the nonrecurring sum received
is not precluded by the statute and may be appropriate under some
circumstances. Family Court set forth in detail the compelling reasons for
its approach in this case, (it awarded a lump sum of ($92,480 which was 17%
of the net amount received as a personal injury award) including, among
others, that "the child had extraordinary and heart wrenching multiple
medical complications which are becoming more acute with time," "the [m]other
has had to dedicate virtually her entire life to the care of the child," and
"the [f]ather has totally abandoned his moral obligation and parental
responsibilities owed to his son, leaving his son's complete care in the
hands of the [m]other." Moreover, it was readily apparent to Family Court
that respondent was rapidly dissipating the entire settlement without any
regard to his child.
Valuation Methodology of Nurse Practitioner
License Proper Even though Wife in Work Force Many Years
In Spreitzer v Spreitzer, --- N.Y.S.2d ----, 2007 WL 1439434 (N.Y.A.D. 2
Dept.) the parties were married in 1982. The defendant, who was a registered
nurse, graduated from Pace University in 1994, and acquired a Masters of
Science Degree and a nurse practitioner license. She held part-time position
as a nurse practitioner in a private medical office since 1998. The
Appellate Division held that the trial court properly calculated the
enhanced earning capacity conferred by the defendant's degree and license by
comparing the expected lifetime earnings of a registered nurse with the
expected lifetime earnings of a licensed nurse practitioner, and reducing
this sum to its present value. Although the defendant had already embarked
on her career and acquired a history of actual earnings the court
providently exercised its discretion in rejecting her testimony that she was
unable to secure full-time employment. The trial court properly awarded the
plaintiff 20% of the value of the degree and license constituting the
enhanced earning capacity achieved by the defendant during the marriage,
based upon his substantial economic as well as noneconomic contributions to
the attainment of that enhanced earning capacity . The defendant's
contention that the trial court erroneously imputed income of $78,000 to her
for the purpose of calculating her child support obligation was without
merit. In determining a party's child support obligation, "a court need not
rely upon the party's account of his or her finances, but may impute income
based upon the party's past income or demonstrated earning potential". Here,
the court properly imputed an annual income to the defendant since the
evidence at trial demonstrated that she was capable of earning $78,000 a
year based on her degree, her nurse practitioner license, the facts adduced
at trial, and the testimony of the expert who valued her degree and
license.. The record supported the determination of the court that the
defendant's earning potential exceeded her actual income reported on her
2004 income tax return.
Motion Granting Judgment Abandoned For Failure to Comply with 22 NYCRR
202.48. Law office failure does not constitute "good cause" for Delay .
In Farkas v Farkas, --- N.Y.S.2d ----, 2007 WL 1246924 (N.Y.A.D. 1 Dept.)
the First Department reversed on the law an Order and judgment awarding
plaintiff $750,000 with interest from August 6, 2003, vacated the judgment
and dismissed as abandoned the claim underlying the judgment. It pointed out
that the Court of Appeals has recently made it clear that "statutory time
frames– like court-ordered time frames--are not options, they are
requirements, to be taken seriously by the parties" (citing Miceli v State
Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726 [2004] [citation omitted],
following Brill v. City of New York, 2 NY3d 648 [2004] ). Thus, where a
statute or court rule prescribes a limited time frame in which to take a
procedural step in litigation, and states that a party's failure to act
within that time frame will be excused only upon a showing of "good cause,"
such a showing requires demonstrating, as the dissent put it, "more ... than
[the] merit ... [of] the underlying application and a lack of prejudice to
the other party." This principle applied in this case, in which plaintiff
failed to comply with the 60-day time frame for the submission of a judgment
to the court for signature (Uniform Rules for Trial Cts [22 NYCRR]
202.48[a], [b] ). Because plaintiff has failed to show good cause for her
failure to comply with the time frame set forth in the Uniform Rules, it
reversed and vacated the judgment. Although the order granting plaintiff's
application for judgment was entered on October 17, 2000, it was not until
May 2, 2005--four and a half years later--that plaintiff finally served
defendant with a notice of settlement and a proposed judgment. Defendant
opposed entry of the proposed judgment, arguing that it was untimely under
22 NYCRR 202.48(a), more than 60 days having passed since entry of the order
directing settlement of the judgment. Therefore, defendant argued, the
action should be deemed abandoned pursuant to 22 NYCRR 202.48(b), since
plaintiff had not shown "good cause" for the delay. The court, without
making any finding on the "good cause" issue, signed the judgment submitted
by plaintiff without material amendment. Plaintiff's failure to comply with
the clear mandate of the Uniform Rules was not justified either by the lack
of prejudice to defendant from the late submission of the judgment or by the
merit of the claim on which the judgment is based (cf. Brill, 2 NY3d at 652
["good cause" for a late summary judgment motion under CPLR 3212(a)
"requires a showing of good cause for the delay in making the motion--a
satisfactory explanation for the untimeliness--rather than simply permitting
meritorious, nonprejudicial filings, however tardy"] ). Plaintiff's failure
to timely submit a judgment was simply an instance of law office failure.
Plaintiff's counsel essentially admitted as much. In reply to defendant's
opposition to the belated submission of the judgment, plaintiff's counsel
concluded that "any failure to timely submit the Order [sic ] for settlement
is based on an oversight by the firm filing." In view of Brill and its
progeny law office failure clearly does not constitute "good cause" for
delay within the meaning of 22 NYCRR 202.48(b). The more contemporary Brill
and Miceli decisions indicate that courts are now expected to take a
stricter approach to the enforcement of litigation deadlines. [Saxe, J.P.
and Malone, J. dissented ]
Improper to Impute Income to Wife
Out of Work Force For Extended Period of Time.
In Walter v Walter,--- N.Y.S.2d ----, 2007 WL 852120 (N.Y.A.D. 2 Dept.)
the Appellate Division held that the Supreme Court improvidently exercised
its discretion in confirming the referee's determination to limit the
plaintiff's award of $4000 a month spousal maintenance to a period of five
years, retroactive to the date of commencement of the action. The evidence
presented at the hearing revealed that the plaintiff was the primary
caretaker of the parties' three children, and that she stopped working
shortly before the birth of the parties' second child in 1995 in order to
become a stay-at-home mother. It extended the award of maintenance by an
additional three years to afford the plaintiff, who had been out of the work
force for an extended period of time, and was the primary caretaker of the
parties' children, a sufficient opportunity to become self-supporting. The
Appellate Division held that under the circumstances of this case, the court
should not have confirmed the referee's determination to impute an annual
income of $40,000 per year to the plaintiff for purposes of calculating
child support under the CSSA. Although the court may impute income based
upon a party's past income or demonstrated earning potential given the
extended period of time during which the plaintiff has been out of the work
force, and the necessity of affording her an additional period of time to
become self-supporting, it was improper to impute income to her. It modified
the judgment to increase the child support award from $2900 a month to
$3,625 per month.
Denial of Fair Trial Warrants
Reversal of Divorce Judgment
In Shagoury v Shagoury, --- N.Y.S.2d ----,
2007 WL 1016997 (N.Y.A.D. 2 Dept.) the Appellate Division reversed a
judgment which, after a nonjury trial, inter alia, granted the plaintiff
wife a divorce on the ground of cruel and inhuman treatment. A new trial was
required because the trial court impermissibly and repeatedly precluded the
husband from eliciting relevant testimony in his defense, as well as in
support of the factual allegations contained in his counterclaim, and
thereby deprived him of a fair trial.
Depositions Not Permitted in
Custody Disputes and Deposition of Expert Not Favored.
In Nimkoff v Nimkoff, 36 A.D.3d 498, 830 N.Y.S.2d
27 (1st Dept.,2007) the Appellate Division, First Department,
affirmed an order which granted motions by the court-appointed forensic
evaluator Schaul and by plaintiff wife to vacate the defendant husband's
notice of deposition and quash his subpoena for pre-trial disclosure by
Schaul. It held that defendant was given ample opportunity to cross-examine
the evaluator as to any bias in favor of mothers in custody proceedings. The
circumstances did not suggest the need for a departure from the general rule
that depositions are not permitted in custody disputes. Furthermore,
deposing of expert witnesses is generally discouraged. The order directing
production of Dr. Schaul's data file for review three business days prior to
trial was appropriate.
Broad Disclosure Justified Where Closely Held
Corporation Owned by Spouse. Special Circumstance Rule Still Applicable to
Non-Party Depositions.
In Reich v Reich, 36 A.D.3d 506, 830 N.Y.S.2d 29
the Appellate Division held that the documents and records sought by
defendant wife from Hercules Corp. were appropriate to a characterization
and valuation of Hercules, a closely held corporation in which plaintiff
husband was a 2.5% shareholder. Under the Equitable Distribution Law, broad
pretrial disclosure which enables both spouses to obtain necessary
information regarding the value and nature of the marital assets is critical
if the trial court is to properly distribute the marital assets. This
searching exploration is more than justified in the case of close
corporations, the ownership of which is in the hands of a small number of
stockholders and for which there is little objective evidence of fair market
value. Defendant wife will have to bear the costs of any document
production. The Appellate Division modified to quash the notice of
deposition served upon Alfred May. Defendant had not shown that the
information sought from him was not obtainable from other sources (citing
Dioguardi v. St. John's Riverside Hosp., 144 A.D.2d 333, 533 N.Y.S.2d 915
[1988] ), particularly since appellants had evidently agreed that they would
make him available for deposition.
Income Imputed to Husband Who Manipulated
Corporate Expenses
In Yarinsky v Yarinsky --- N.Y.S.2d ----, 2007 WL
108475 (N.Y.A.D. 3 Dept.) the Appellate Division held that Courts have
considerable discretion in fashioning a child support award; when assessing
a parent's income from which to determine his or her child support
obligation, a court should consider factors such as the parent's "gross
(total) income as ... reported in the most recent federal income tax
return", as well as additional income from sources other than employment and
a parent's past income . Further, a court may impute income based upon a
parent's prior employment experience and future earning capacity in light of
his or her educational background. Notably, when a party's or an expert's
account of his or her finances is not believable, a court is justified in
finding an income higher than that claimed . Upon its review of the record
the Appellate Division concluded that the Support Magistrate acted within
his discretion in focusing on the 2003 federal tax returns of the parties
and the husbands solely owned subchapter S corporation, as they were the
most recent at the time of the hearing. Further, each item of income
attributed to the husband for child support purposes--which
totaled$189,547-- was supported in the record. It was clear that--in
anticipation of an eventual full plenary hearing on child support--the
husband made a number of financial decisions which effectively reduced the
amount of the corporate nonemployment income received by him in 2003; the
most glaring were his December 2003 decisions to purchase a new corporate
vehicle for his personal use ($31,356) and to upgrade his office computer
system ($15,070.16) thereby reducing the 2003 excess corporate
profit--payable as income to him as sole shareholder of the corporation--by
$46,426. Accordingly, it imputed $40,426 in additional 2003 income to the
husband's share of the combined parental income.
Oral Motion Denies Notice and
Opportunity to Be Heard. Contempt Requires Compliance with Judiciary Law
In Xand Corporation V Reliable Systems Alternatives
Corporation 35 A.D.3d 849, 827 N.Y.S.2d 269 (2d Dept.,2006) an action to
recover damages for fraud in the inducement, the Supreme Court granted the
defendant's oral application to hold the plaintiff in contempt of court and
to strike the complaint for its failure to comply with a prior court order.
The Appellate Division reversed holding that defendant's oral application to
hold the plaintiff in contempt of court did not satisfy the statutory
requirements for a contempt application. Pursuant to Judiciary Law 756, a
contempt application must be in writing, must be made upon at least 10 days
notice, and must contain on its face the statutory warning that "failure to
appear in court may result in ... immediate arrest and imprisonment for
contempt of court" . Since the defendant's oral application failed to comply
with any of these procedural safeguards, the Supreme Court erred when it
punished the plaintiff for contempt for failing to comply with its prior
order. Furthermore, under the circumstances of this case, defendant's oral
application to strike the complaint based upon the plaintiff's failure to
comply with court-ordered discovery should have been denied in the absence
of notice and an opportunity to be heard.
Court of Appeals
Holds New York Grandparent Visitation Law is Constitutional
In the Matter of E.S. (Anonymous), v. P.D.
(Anonymous), the Court of Appeals, in an opinion by Judge Read, held that
section 72(1) of the Domestic Relations Law is constitutional in view of the
United States Supreme Court's decision in Troxel v Granville (530 US 57
[2000]), both on its face and as applied.
A.D.'s mother E.S. (grandmother), who lived in East Hampton, Long Island,
was asked to move into the marital home in Huntington to care for her
terminally ill daughter and the child. The Grandmother cleaned the house,
shopped, cooked household meals and looked after the child when A.D.'s
illness prevented her from doing so.
After A.D.'s death in March 1998, father invited the grandmother to stay on
to help out with the then four-year-old child's care and household duties.
They lived together amicably in the Huntington home for the ensuing three
and one-half years. During that time, grandmother comforted, supported and
cared for the motherless child. She got him ready for school, put him to
bed, read with him, helped him with his homework, cooked his meals,
laundered his clothes and drove him to school and to doctor's appointments
and various activities, including gym class, karate class, bowling, soccer,
Little League baseball and swimming class. She arranged and transported him
to away-from-home or supervised at-home play dates; she took him to the
public library and introduced him to the game of chess. By the fall of 2001,
the relationship between grandmother and father had begun to sour. On
February 24, 2002 the father demanded that grandmother move out of the home
immediately. From April through December 2002, the father allowed sporadic
visits, which were limited in length and tightly supervised, and occasional
telephone calls. In January 2003, grandmother, who was 78 years old at the
time, commenced the proceeding pursuant to Domestic Relations Law § 72 and
Family Court Act § 651 for an order granting reasonable visitation with the
child, who was then nine years old. The Father opposed the grandmother's
request, and cross-moved for an order prohibiting grandmother from any
contact whatsoever with the child.
Supreme Court granted judgment to grandmother, and ordered visitation
according to a detailed schedule. Supreme Court concluded that "[a]lthough
mindful of [father]'s right to rear [the child] as he sees fit, and of his
stated concern that [grandmother] undermines his parental authority, the
Court finds that he has failed to present any credible evidence warranting
either the termination of the relationship between [grandmother] and [the
child] or the imposition of restrictions on the right of visitation.
Instead, the evidence in the record establishes the existence of a very
close, loving relationship between [grandmother] and [the child], and that
[the child]'s best interest is served by granting [grandmother] regular,
unfettered visitation." The Appellate Division affirmed Supreme Court's
judgment, but modified certain terms of the visitation schedule in deference
to father's wishes, relying on Troxel. The Appellate Division rejected the
father's argument that Supreme Court abused its discretion in awarding
visitation to grandmother.
The Court of Appeals affirmed. Judge Read noted that Section 72(1) derogates
from the common-law rule that "grandparents [have] no standing to assert
rights of visitation against a custodial parent". The statute "rests on the
humanitarian concern that [v]isits with a grandparent are often a precious
part of a child's experience and there are benefits which devolve upon the
grandchild . . . which he cannot derive from any other relationship" (id. at
181 [internal quotation marks and citations omitted]). Section 72(1) "does
not create an absolute or automatic right of visitation. Instead, the
statute provides a procedural mechanism for grandparents to acquire standing
to seek visitation with a minor grandchild". When grandparents seek
visitation under section 72(1), the court must undertake a two-part inquiry.
"First, [the court] must find standing based on death or equitable
circumstances"; and "[i]f [the court] concludes that the grandparents have
established the right to be heard, then it must determine if visitation is
in the best interest of the grandchild" (Matter of Emanuel S., 78 NY2d at
181). She cautioned that the courts should not lightly intrude on the family
relationship against a fit parent's wishes. The presumption that a fit
parent's decisions are in the child's best interests is a strong one. And
while the problems created by parent-grandparent antagonism cannot be
ignored, an acrimonious relationship is generally not sufficient cause to
deny visitation.
Here, the grandmother had automatic standing under section 72(1) on account
of A.D.'s death. Record evidence supported the determination of the courts
below that visitation between grandmother and the child is in the child's
best interest. The Appellate Division affirmed the trial court's findings of
fact, and the Court of Appeals could not revisit them. In light of these
factual findings, there was no reason to disturb the best-interest
determination in this case.
The Father contended that Domestic Relations Law § 72(1) was facially
unconstitutional in light of Troxel. Judge Read noted that the Washington
statute at issue in Troxel permitted "'[a]ny person' to petition [the trial
court] for visitation rights 'at any time,' and authorize[d] that court to
grant such visitation rights whenever 'visitation may serve the best
interest of the child'". The problem in Troxel was therefore not that the
trial court intervened, but that it failed to employ "the traditional
presumption that a fit parent will act in the best interest of his or her
child" when it did. The trial court effectively applied a presumption in
favor of grandparent visitation, placing on the parent "the burden of
disproving that visitation would be in the best interest" of her children.
Reasoning from Troxel, Judge Read court that section 72(1) was facially
constitutional. Section 72(1) "can be, and has been, interpreted to accord
deference to a parent's decision, although the statute itself does not
specifically require such deference. Further, [section 72(1)] is drafted
much more narrowly than the Washington statute [considered in Troxel]. If
the United States Supreme Court did not declare the 'breathtakingly broad'
Washington statute to be facially invalid, then certainly the more narrowly
drafted New York statute is not unconstitutional on its face. In fact, the
Court indicated that it would be hesitant to hold specific nonparental
visitation statutes unconstitutional per se because 'much state-court
adjudication in this context occurs on a case-by-case basis.' Troxel does
not prohibit judicial intervention when a fit parent refuses visitation, but
only requires that a court accord 'some special weight to the parent's own
determination' when applying a nonparental visitation statute". (quoting
Justice Altman in Matter of Hertz v Hertz, 291 AD2d 91, 94 [2d Dept 2002]).
The father also argued that section 72(1) was unconstitutionally applied in
this case. The Court of Appeals disagreed. Unlike Troxel, the trial court
here did not presuppose that grandparent visitation was warranted as the
jumping-off point for factfinding and best-interest analysis. Instead, the
court, emphasizing that it was "mindful" of father's parental prerogatives,
employed the strong presumption that the parent's wishes represent the
child's best interests, as our statute requires. While this presumption
creates a high hurdle, the grandmother in this case surmounted it: from the
time the child was almost four until he was seven, the grandmother was his
surrogate, live-in mother. The court then properly went on to consider all
of the many circumstances bearing upon whether it was in the child's best
interest for his relationship with grandmother to continue -- e.g., the
reasonableness of father's objections to grandmother's access to the child,
her caregiving skills and attitude toward father, the law guardian's
assessment, the child's wishes -- before making a judgment granting
visitation.
New Trial Granted on Issues of Maintenance And Child Support
Where Husband Had Heart Attack After the Decision
In Opperisano v Opperisano, --- N.Y.S.2d ----, 2006 WL
3734238 (N.Y.A.D. 2 Dept.) Supreme Court awarded the plaintiff maintenance
of $65 per week for five years, granted the plaintiff a right of first
refusal on the sale of the marital home at the valuation appraised as of
August 29, 2003, awarded the plaintiff $2,860 in maintenance arrears,
$13,395.23 in expenses on the marital home, and $7,344 in child support
arrears and directed that the defendant pay the plaintiff one half of her
credit card debt of $24,000 and denied the defendants motion for a new
trial. The Appellate Division reversed the judgment insofar as appealed
from, on the law, and granted the defendants motion pursuant to CPLR 4404(b)
for a new trial and the matter was remitted to the Supreme Court for a new
trial and thereafter for a new determination. It held that a court may
modify a prior order or judgment of child support or maintenance payments
upon a showing of "a substantial change in circumstance. In his affidavit
and supporting papers filed on his motion, in effect, for a new trial, the
husband made a prima facie showing that, after the first trial, he had been
forced to retire and had been put on disability because of a heart attack
and continuing heart disease and, consequently, had suffered a significant
loss of income. This was sufficient to warrant a new trial and a new
determination on the issues of maintenance and child support.
New Attorney Advertising and
Certification Rules Effective February 1, 2007
The presiding justices of the Appellate
Divisions promulgated
new rules regarding attorney advertising which took
effect on February 1 , 2007. See Court Notes below for more information.
Court of Appeals Holds that McSparron Does Not Extend to Tangible Income Producing Assets
In Keane v Keane
, 12/22/2006 NYLJ 22, (col. 5) the Court of Appeals held that the principal
enunciated in Grunfeld v. Grunfeld (94 NY2d 696 [2000]) and McSparron v.
McSparron (87 NY2d 275 [1995], that in divorce actions a court should not
twice count the income associated with a professional license, an intangible
asset, when making distributive and maintenance awards, does not extend to
the distribution of a tangible, income-producing asset (here, a parcel of
land leased to a car repair shop which provided rental income) and the
subsequent award of maintenance from income deriving from that asset.
Absence of New Retainer Agreement upon
Substitution after Dissolution of Partnership Did Not Constitute
Noncompliance with 22 NYCRR 1400.3 in Light of Ratification of Retainer
Agreement
In Gross v Gross--- N.Y.S.2d ----, 2006 WL
3803316 (N.Y.A.D. 2 Dept.) the plaintiff
commenced an action for divorce through her former attorney, Kim Brennan
Joyce, who, at that time, was a named partner a law firm which had since
dissolved. After the action was submitted to the Supreme Court for an
inquest a stipulation was incorporated but not merged into the judgment..
The plaintiff agreed, pursuant to the stipulation, that she was responsible
for her own attorney's fees and that: "in the event any outstanding legal
fees remain on [plaintiff's] behalf to Kim Brennan Joyce, Esq., same shall
be satisfied from her proceeds from the sale of her one-half equity interest
in the marital residence at the time of closing. In the event there is a
dispute as to any counsel fees outstanding, an amount sufficient to satisfy
Kim Brennan Joyce, Esq.'s final bill shall be held by her in escrow pending
a resolution of same ". In accordance with the stipulation at the closing on
the sale of the marital residence, the parties' attorneys executed an
agreement pursuant to which each attorney held in escrow the sum of
$140,713.05, representing 50% of the net proceeds of the sale of the marital
residence, "without disbursement until further agreement of the parties or
order of the court directing same ". Joyce moved to be relieved as counsel
for the plaintiff, and to retain the sum of $53,191.61 in escrow subject to
determination of the fee dispute committee or further court order. Joyce
submitted her own affirmation in which she averred that she had sent the
plaintiff bills for services rendered in the requisite time-frames under the
rules governing matrimonial actions and that the plaintiff never disputed
those bills, but rather, repeatedly assured Joyce that the bills would be
paid from the proceeds of the action. Joyce further averred that the closing
proceeds were held in escrow "due to failure of the parties to agree on the
disbursement of proceeds." The court granted the motion to the extent of
permitting Joyce to retain the sum of $53,191.61 in her escrow account
subject to a determination by the fee dispute committee, and directing her
to release the remaining sum held in escrow to the plaintiff. The Appellate
Division affirmed. It held that Supreme Court properly determined that Joyce
complied with the requirements of 22 NYCRR 1400.3 and 1400.5, It found that
the plaintiff and the partnership entered into a retainer agreement, which
was executed by the plaintiff and Joyce, on behalf of the partnership. Under
the circumstances of this case, the absence of the execution and filing of a
new retainer agreement upon her substitution as the attorney-of-record after
the dissolution of the partnership did not constitute noncompliance with 22
NYCRR 1400.3 . The retainer agreement fully complied with the requirements
of 22 NYCRR 1400.3. Joyce executed it for the partnership and made
appearances for the plaintiff. The Appellate Division held that the
plaintiff thereby ratified both Joyce's representation of her after the
substitution and that the terms of the original retainer agreement were
binding on them.
No Counsel Fee Award Without New Retainer For
Post Judgment Services
In Sherman v Sherman,
--- N.Y.S.2d ----, 2006 WL 3377483 (N.Y.A.D. 2 Dept.) the Appellate Division
affirmed an order which denied the former wife’s motion for an attorney fee
for post judgment services. It held that absent substantial compliance with
22 NYCRR 1400.3, which requires the execution and filing of a retainer
agreement setting forth, inter alia, the terms of compensation and the
nature of services to be rendered, an attorney may not recover a fee from an
adversary spouse. By its own terms the retainer agreement between the wife
and her attorney terminated upon entry of the judgment of divorce. The
filing of a new retainer agreement in support of the subsequent motion for a
post judgment attorney's fee, which purportedly ratified the former
agreement, did not amount to substantial compliance with the matrimonial
rules.
Family Court Lacks Subject Matter Jurisdiction
to Set Aside Child Support Agreement Incorporated in Divorce Judgment
In Savini v Burgaleta,
--- N.Y.S.2d ----, 2006 WL 3378238 (N.Y.A.D. 2 Dept.) the parties 1996
stipulation, was incorporated in and survived their judgment of divorce, and
provided, that the father would "pay to the [mother] as and for child
support 29 percent of his gross salary as defined under the Child Support
Standards Act on a weekly basis calculated on actual income." In a later
agreement dated April 1997, which was not incorporated into the judgment,
the mother allegedly agreed, to accept the sum of $200 per week from the
father as child support and not to commence any proceeding to recover the
difference between that amount and the percentage of gross salary specified
in the prior stipulation. In 2004, the mother commenced a family court
proceeding to enforce the child support provisions. The father moved in
Supreme Court to have the petition transferred to it and to have it
dismissed based on the terms April 1997 agreement. Supreme Court determined
that the April 19, 1997, agreement was not a valid modification agreement
because it failed to comply with the provisions of DRL 240(1- b)(h) and
denied the motion to transfer. Subsequently, the Support Magistrate, sua
sponte, determined that "the prior Judgment of Divorce and the stipulations
did not comply with the Child Support Standards Act" and considered the
issue of child support de novo. The Appellate Division held that Family
Court was without subject matter jurisdiction, in effect, to vacate as
illegal so much of the judgment of divorce as directed the father to pay
child support and, thereafter, to determine the issue of child support de
novo. Family court is a court of limited jurisdiction. New York
Constitution, article 6, §13(c) provides that the Family Court is vested
with limited jurisdiction "to determine, with the same powers possessed by
the [S]upreme [C]ourt, the following matters when referred to the [F]amily [C]ourt
from the [S]upreme [C]ourt: ... in actions and proceedings for ... divorce,
... applications to fix temporary or permanent support ... or applications
to enforce judgments and orders of support". Nowhere in the Constitution, in
the Family Court Act, or in the judgment of divorce itself, is the Family
Court empowered, in effect, to invalidate a stipulation incorporated into
the judgment of divorce entered by the Supreme Court. Had either party
questioned the legality of the stipulation, the issue should have been
determined by the Supreme Court, which had issued the judgment in which the
stipulation was incorporated.
Marital Assets Awarded Wife in Pre-Petition
Divorce Action Where Judgment Not Entered are Assets of Bankrupt Estate
In Musso v Ostashko,
--- F.3d ----, 2006 WL 3190285 (C.A.2 (N.Y.)) the Chapter 7 trustee filed an
adversary complaint, seeking to avoid the debtor's former wife's interest in
marital property and to have the property turned over to him. The former
wife filed a counterclaim, asserting that the property was not property of
the debtor's bankruptcy estate. The Bankruptcy Court denied the former
wife's motion for summary judgment. The District Court, 333 B.R. 625,
reversed and directed the bankruptcy court to enter judgment in favor of
former wife. The Second Circuit Court of Appeals reversed. It held that
under New York law, the marital assets in question, which were awarded to
the debtor's wife in a pre-petition state-court matrimonial proceeding whose
judgment was not docketed until after the filing of debtor's bankruptcy
petition, were the property of debtor's bankruptcy estate. The bankruptcy
court had ruled that, in New York, an equitable right to marital property
does not arise until entry of the judgment awarding equitable distribution
and, thus, the property must be included in the estate. On appeal, the
district court reversed, finding that the entry of the state court judgment
is "ministerial" and, thus, the rights of the wife, Tanya Ostashko, vested
upon rendering of the state court's "Decision After Inquest." The Court of
Appeals, in vacating the decision of the district court held that:" Four
relevant premises require this result. First, under New York law an
equitable distribution award is a remedy, and the enforcement of that remedy
is no different than the enforcement of any other judgment. Second, New York
adheres to the bright line rule that the priority of judgment creditors is
determined on the basis of the order in which judgments are docketed or
executed. Third, 11 U.S.C. 544-the so-called "strong arm" provision of the
Bankruptcy Code-gives the bankruptcy trustee the rights of a hypothetical
perfected judgment lien creditor as of the petition date. Finally, while the
Decision After Inquest determined the rights to the marital assets as
between husband and wife, the decision did not purport to determine the
rights to the assets as between Tanya Ostashko and all other judgment lien
creditors. Based upon these considerations, and the undisputed fact that the
matrimonial judgment was docketed after the filing of the Chapter 7
petition, we hold that the marital assets are part of the bankruptcy estate
and subject to distribution in due course by the bankruptcy court."
Distributive Award Disguised As Maintenance
Dischargeable In Bankruptcy
In Re Duffy v
Taback 2006 WL 1540542 (S.D.N.Y.) during the
course of the marriage, Duffy obtained his medical degree. In 1994 Appellant
Taback commenced an action for divorce and it came on for trial before the
Honorable Fred Shapiro on June 27, 1997. On that date, with the
participation of Justice Shapiro, the parties stipulated to a settlement of
what the Bankruptcy Court found to be the single issue on which they went to
trial, that of the equitable distribution of the value of the medical
degree. The judgment of divorce stated in relevant part: ADJUDGED AND
DECREED that the Defendant [Duffy] shall pay monthly spousal maintenance to
the Plaintiff [Taback] commencing July 1, 1997 in the sum of $2,000 per
month payable in monthly installments which shall be made on the first day
of each month for the term of ten (10) consecutive years, which payment
shall be non-dischargeable in bankruptcy and paid unconditionally to the
Wife irrespective of her cohabitation or remarriage. In May 2002, Duffy
admitted to several professional misconduct allegations and relinquished his
license to practice medicine. The Bankruptcy Court held that the provision
in the divorce judgment for ten-year payments designated "spousal
maintenance" aggregating $240,000 constituted the settlement of a dispute
between the parties concerning solely equitable distribution of the debtor's
property interest in his medical license and practice. Since the dispute
which was tried in the state court on June 27, 1997 concerned only equitable
distribution, and since Taback made no claim for alimony/maintenance at or
prior to the trial in the divorce action the liability to pay $240,000 over
ten years although designated as "spousal maintenance" was not "actually in
the nature of alimony, maintenance, or support" .. [and accordingly] cannot
be deemed alimony, maintenance or support within the scope of Section
523(a)(5). The Court rejected Appellants argument that according to Zaera v.
Raff, 93 B.R. 41 (Bankr.S.D.N.Y.1988) the monies at issue were, as a
matter of law, in the nature of alimony and therefore not dischargeable
under Section 523(a)(5) of the Bankruptcy Code. In Raff, the Bankruptcy
Court relied on O'Brien v. O'Brien, 66 N.Y.2d 576, 584 (1985), and held that
an award of a percentage of the value of a medical degree was in the nature
of alimony and support and was non-dischargeable. To the extent that Zaera
v. Raff, which held that a distributive award of the value of debtor's
medical degree acquired during marriage is in the nature of
non-dischargeable alimony and not marital property, intended to establish a
bright line rule to that effect, the District Court declined to follow Raff.
The Court did not find an intended bright line rule in Raff, but were it so
to find, it would nevertheless not be bound thereby. The Bankruptcy Court
found that on June 17, 1997, the parties settled their only actually
remaining dispute pending before the state court, which was over the
equitable distribution of Duffy's property interest in his medical degree,
and they did not settle a claim over alimony or maintenance, as such a claim
was never made. It found that the parties treated the distribution as
spousal maintenance at the suggestion of Justice Shapiro in order to settle
Taback's claim for equitable distribution in a way that Duffy's net cost
would be reduced by way of federal income tax deductions. Despite the tax
consequences reflecting alimony in this case,the term making the payments
unconditional despite Taback's remarriage or cohabitation flies in the face
of an intent to award alimony support.
Provision for Own Attorneys Fees
For Collecting Law Firms Attorneys Fees Void
In Ween v Dow, (2006 NY Slip Op 07227) the
Appellate Division, First Department, held that a provision in a retainer
agreement, which holds the client liable for attorneys' fees incurred in the
collection of fees generated under the retainer agreement, is void as
against public policy. The retainer agreement provided, in part: "If client
fails to pay for charges due under this agreement and the law firm takes
legal action and is awarded such charges, client shall owe to law firm
costs, expenses and attorneys' fees (including but not limited to the
reasonable value of the law firm's own work) attributable to law firm's
collection proceedings and/or action." The Court noted that even in the
absence of fraud or undue influence, an agreement to pay a legal fee may be
invalid if it appears that the attorney got the better of the bargain,
unless he can show that the client was fully aware of the consequences and
that there was no exploitation of the client's confidence in the attorney.
It found that the very nature of the provision, which permits the recovery
of attorneys' fees by the attorney should he prevail in a collection action,
without a reciprocal allowance for attorneys' fees should the client
prevail, to be fundamentally unfair and unreasonable. Aside from its lack of
mutuality, the clause, even if not so designed, had the distinct potential
for silencing a client's complaint about fees for fear of retaliation for
the nonpayment of even unreasonable fees . For that reason the provision was
unenforceable.
Stipulation Does Not Foreclose
Inquiry into Propriety of Attorneys' fee
In Campion v
Campion, --- N.Y.S.2d ----, 2006 WL 2615131 (N.Y.A.D.
2 Dept.) the Appellate Division reversed an order which granted the motion
of the former attorney for the plaintiff, to enter a money judgment in the
sum of $31,615.40 against the plaintiff, and denied the plaintiff's cross
motion to vacate the portion of a stipulation of settlement between the
parties requiring her to pay an attorney's fee to him. In the course of
negotiating the settlement of this matrimonial action, the attorney for the
plaintiff-client obtained the client's consent to insert into the
stipulation of settlement between the parties a provision requiring her to
pay his fee, in the amount of $31,615.40, from certain marital property that
she was to receive in equitable distribution. The stipulation was
subsequently "so ordered" and incorporated, without being merged, into the
judgment of divorce. The client subsequently refused to comply with the
terms of the stipulation of settlement. The attorney then moved in the
action to hold the client in contempt of court for her noncompliance with
the stipulation of settlement or, among other things, for leave to enter a
money judgment against the client. The client opposed the motion on the
ground that the time for which she was charged was excessive. At the same
time, she commenced a plenary action in the Supreme Court to set aside the
fee provision in the stipulation of settlement. The Appellate Division held
that Supreme Court erred in granting the motion for leave to enter a money
judgment without considering the client's cross motion to vacate the portion
of the stipulation of settlement requiring her to pay an attorney's fee. By
moving in the matrimonial action for leave to enter a money judgment upon
the ground that the client had defaulted, the attorney necessarily invoked
the summary procedure established by Domestic Relations Law 244 for the
enforcement of matrimonial obligations. Under the terms of that provision, a
party against whom enforcement of an obligation other than child support is
sought may seek relief from the obligation upon showing good cause. Here,
such good cause was established, prima facie, by the attorney-client
relationship between the attorney and the client at the time the
cliententered into the fee stipulation. "[I]t is well settled that the
courts possess the traditional authority 'to supervise the charging of fees
for legal services' pursuant to their 'inherent and statutory power to
regulate the practice of law' " The existence of the stipulation did not
foreclose the court from inquiring into the propriety of an attorneys' fee,
even in the absence of undue influence or fraud.
Net Worth Statement Required
Before Court Can Apportion Law Guardian Fees
In Frost v Goldberg,
818 N.Y.S.2d 533 (2d Dept.,2006) the Appellate Division held that Supreme
Court improvidently exercised its discretion in confirming that portion of
the Judicial Hearing Officer's report which recommended that the plaintiff
reimburse the defendant the sum of $12,400 in fees paid by the defendant to
the Law Guardian. Although such fees and related expenses are entrusted to
the sound discretion of the court, they are nonetheless to be controlled by
the equities of the case and the financial circumstances of the parties. The
Judicial Hearing Officer failed to consider the financial circumstances of
the parties. The defendant failed to file a current statement of net worth
with his cross motion, as required by 22 NYCRR 202.16(k)(2). In addition,
the plaintiff did not file a statement of net worth with the court. The
matter was remitted to Supreme Court, for a hearing to consider the parties'
relative financial positions, and for a new determination on the issue of
reimbursement of fees paid to the Law Guardian . It directed that the new
determination should be made only after receipt of a statement of net worth
from both parties.
Waiver of Right to Seek
Attorney Fee in Prenuptial Agreement May Be Void
In Kessler v.
Kessler, 2004-04773, an action for a divorce
and ancillary relief, the wife sought to rescind or reform a prenuptial
agreement on the grounds, inter alia, that she entered it under duress and
that it was unconscionable. Supreme Court denied her request but held that
the portion of the agreement waiving the right to seek an award of
attorney's fees for the equitable distribution portion of their divorce case
was unconscionable and unenforceable in light of Domestic Relations Law
237(a). The Second Department affirmed, holding that DRL 237 "embodies a
public policy determination by the Legislature that matrimonial matters are
best resolved by parties operating on a level playing field". However, it
indicated that "not every agreement waiving the right to seek an award of an
attorney's fee should be set aside. Rather, careful and individualized
scrutiny is called for. The determination as to whether or not a provision
waiving the right to seek an award of an attorney's fee is enforceable must
be made on a case-by-case basis after weighing the competing public policy
interests in light of all relevant facts and circumstances both at the time
the agreement was entered and at the time it is to be enforced. If, upon
such an inquiry, the court determines that enforcement of the provision
would preclude the non-monied spouse from carrying on or defending a
matrimonial action or proceeding as justice requires, the provision may be
held unenforceable. Also relevant to such a determination is the conduct of
the parties over the course of the matrimonial action. Such a determination
is frequently best made at the conclusion of the action. However, because an
attorney's fee is authorized when needed to carry on or defend an action, it
may be necessary to make such a determination at an earlier point in the
litigation." To the extent that such an award would otherwise be subject to
the waiver contained in the prenuptial agreement, the Supreme Court, after
careful and individualized scrutiny of the need for the same, may award the
wife an attorney's fee as justice requires to enable her to carry on or
defend issues of equitable distribution. Here, the agreement provided that
"each party shall have no right or claim against the other for support,
alimony, attorney fees or costs." The Appellate Division found that there
was a great disparity in the parties income and assets and the prenuptial
agreement reflected no consideration given to the specific facts and
circumstances of the parties as they related to an award of an attorney's
fee. Although the wife came into the marriage with minimal assets compared
to the husband, the agreement provided for a blanket waiver of the right to
seek an award of an attorney's fee, regardless of the length of the marriage
or what occurred therein. The agreement did not provide for any
consideration to be given "at the time of the matrimonial action to the
various issues relevant to an award of an attorney's fee, including, inter
alia, the quantity and complexity of the issues to be litigated, and the
relative means of the parties to do so". The court noted that matters
related to child support and child custody were not controlled by the
agreement, nor were the fees incurred by the wife in her unsuccessful effort
to rescind or reform the agreement, which are not compensable pursuant to
DRL 237. The court found that the matrimonial scales were skewed in favor of
the husband's heavier wallet. The wealthier spouse should not be permitted,
by the same agreement, to both opt out of the statutory scheme concerning an
award of an attorney's fee and prevent an effective assessment of how
important an award of an attorney's fee may be. Moreover, whether or not
either party here has improperly prolonged the litigation, or created
needless litigation, etc., should also be considered by the court in
determining the amount, if any, of an award of an attorney's fee to the
wife.
Improper to Alter Custodial
Arrangement Automatically upon Happening of Specified Future Event
In Brzozowski v
Brzozowski, --- N.Y.S.2d ----, 2006 WL 1643384
(N.Y.A.D. 2 Dept.) the mother appealed from an order of the Family Court,
which , after a hearing, denied her petition to relocate with the child to
Westport, Connecticut, and directed that in the event of her relocation with
the child to Westport, Connecticut, the judgment of divorce and stipulation
of settlement shall be modified so that physical custody is transferred to
the father. The Appellate Division modified the order and vacated the
direction that "[in] the event the mother relocates to Westport,
Connecticut, then [physical] custody of the child .. shall belong with the
father, forthwith." It held that this direction, while possibly never taking
effect, impermissibly purported to alter the parties' custodial arrangement
automatically upon the happening of a specified future event without taking
into account the child's best interests at that time.
Contingency Fees Barred in Any
Matrimonial Action
In Ross v Delorenzo --- N.Y.S.2d ----,
2006 WL 1009642 (N.Y.A.D. 2 Dept.) the defendant hired the plaintiff to
represent her in a divorce action and signed an hourly fee agreement. After
discussing the case, the plaintiff concluded that, based on the short
duration and alienated nature of the marriage and the dearth of marital
property, the defendant was only entitled to nominal maintenance and was not
entitled to equitable distribution. Based on the parties past business
relationship the plaintiff decided to also interpose claims alleging an oral
partnership and constructive trust and the parties signed a contingency fee
agreement whereby the plaintiff would recover one third of all sums
recovered on the partnership and constructive trust claims. The parties
later executed a new hourly fee agreement that increased the plaintiff's
hourly rate. According to the plaintiff, at some point during the course of
the litigation he and the defendant agreed that he would accept $300,000 in
full satisfaction of his fees if the matter settled for less than $1.8
million. After the matter was settled the parties stipulated to and the
defendant thereafter remitted the sum of $200,000 to the plaintiff. When the
plaintiff reminded the defendant that he was entitled to an additional
$100,000, but the defendant refused to pay it, and the suit ensued. The
Appellate Division held that an attorney may not, in the context of a suit
which includes both matrimonial and nonmatrimonial causes of action, enter
into a contingency fee agreement whereby he becomes entitled to a percentage
of so much of the proceeds of the litigation as are derived from the
nonmatrimonial causes of action. The court noted that while an attorney may
charge a contingency fee to prosecute nonmatrimonial claims generally, "[a]
lawyer shall not enter into an arrangement for, charge or collect ... any
fee in a domestic relations matter, the payment or amount of which is
contingent upon the securing of a divorce or in any way determined by
reference to the amount of maintenance, support, equitable distribution or
property settlement" (citing, inter alia, 22 NYCRR 1200.11[c][2][i]; see 22
NYCRR 1400.1 and 1400.2.) "The rule against contingent fees in domestic
relations cases in New York is deep seated and well established. The policy
reasons include a belief that this kind of fee might induce lawyers to
discourage reconciliation and encourage bitter and wounding court battles.
Another often expressed policy reason to preclude contingent fees in
matrimonial actions is that they are not necessary, since the court may
award attorney's fees to a nonmonied spouse and thus any party should be
able to retain counsel" . The Court was aware of rulings from other states
holding that such fees do not violate the public policy against contingency
fees in domestic relations matters because they are not contingent upon the
securing of "alimony or support or property settlement in lieu thereof".
However, New York's prohibition on contingency fees in domestic relations
matters is very broad, and does not distinguish between property settlements
made in lieu of maintenance, support, or equitable distribution and property
settlements based on nonmatrimonial property claims (see 22 NYCRR
1200.11[c][2][i]; see also 22 NYCRR 1400.1 and 1400.2). And, allowing
contingency fees for nonmatrimonial claims interposed with matrimonial
claims would contravene the important policy concerns that inform the
general prohibition. Such a rule would create an incentive for attorneys to
characterize most, if not all, of the proceeds of a settlement as deriving
from the nonmatrimonial claims in order to maximize the value of, and
therefore the contingency fee derived from, those claims. The result would
be to diminish the amount of property available for maintenance, support,
and equitable distribution. The Second Department concluded that the better
rule is to prohibit contingency fees in the context of any action containing
matrimonial claims.
Hague Dismissal Not Warranted on
Summary Judgment Motion
In Philippopoulos, v. Philippopoulou, 461 F.Supp.2d
1321 ( N.D. Georgia, 2006) the father a citizen of Greece, petitioned,
pursuant to the Hague Convention for the return of his minor daughter
allegedly wrongfully relocated to the United States by her mother. The
Respondent's moved to dismiss on the basis of her affirmative defense that
the petition should be dismissed because it was not timely filed. Petitioner
and Respondent were married in Greece and their daughter was born there. On
July 1, 2005, Respondent and the child left the family's home in Greece on a
planned vacation to the United States to visit Respondent's family in
Georgia. Petitioner and Respondent agreed that Respondent and the child
would return to Greece on August 15, 2005. On July 4, 2005, three days after
departing Greece, Petitioner was served with an Extra-Judiciary Protest and
Notice formally notifying him that Respondent intended to remain with the
child in the United States and not return to Greece as she had previously
agreed. On November 1, 2005, Petitioner filed an application with the
National Center for Missing and Exploited Children (the "NCMEC") for the
return of the child to Greece. On November 7, 2005, the U.S. State
Department sent Respondent a letter notifying her that Petitioner had filed
a request for the child's return. On November 28, 2005, the NCMEC contacted
Respondent's former counsel, who indicated that Respondent was willing to
participate in a mediation to resolve the dispute. On March 24, 2006, the
mediation took place, but was unsuccessful. In May 2006, pursuant to
Petitioner's request, the NCMEC began a search for pro bono counsel for
Petitioner in the United States. On July 18, 2006, Michael J. Sullivan
agreed to represent Petitioner. On August 11, 2006, Petitioner filed his
petition in this Court for the return of his child. The Court found that
Petitioner set forth a prima facie case of wrongful retention under the
Hague Convention. It was undisputed that the child's habitual residence
prior to visiting the United States was Greece and that Petitioner had
custody rights pursuant to Greek law and was exercising them at the time of
the alleged wrongful retention. Article 12 of the Hague Convention mandates
the return of a child who has been "wrongfully removed or retained in terms
of Article 3 and, at the date of commencement of the proceedings before the
judicial or administrative authority of the Contract state where the child
is, a period of less than one year has elapsed." Even if more than one year
has elapsed, the child shall be returned "unless it is demonstrated that the
child is now settled in its new environment." Respondent contended that the
child should not be returned to Greece because the petition was filed more
than one year after the wrongful retention of the child and the child is
well-settled in her new environment. Citing In re Cabrera, 323 F.Supp.2d
1303, 1303 (S.D.Fla.2004), Respondent argued that the retention of a child
becomes wrongful as soon as the non-retaining parent becomes aware of the
retaining parent's true intention not to return. She argued that Petitioner
became aware of her true intention not to return on July 4, 2005, when he
was served with the Extra-Judiciary Protest and Notice, over one year before
he commenced this action on August 11, 2005. Petitioner contended that his
petition was timely because the wrongful retention did not begin until
August 15, 2005, the date upon which Respondent failed to return to Greece
as she had agreed. The Court agreed with Petitioner and found that his
petition was timely filed. Under the Hague Convention a parent whose child
is wrongfully retained from its home country has one year from the date upon
which the wrongful retention began to file suit for the child's return. The
court noted that while Petitioner probably could have filed suit immediately
upon learning of Respondent's intention to wrongfully retain the child,
Petitioner also had the right to wait to file suit until after the retention
became wrongful. Because Respondent had agreed to return the parties' child
to Greece on August 15, 2005, her retention of the child did not become
wrongful until that date. Thus, Petitioner had until August 15, 2006,
to file this action. Because he filed his petition before that date,
Respondent failed to carry her burden of showing that the petition should be
dismissed for untimeliness. The Court also noted that under the Hague
Convention, even if the petition was not filed within twelve months of when
the retention became wrongful and the child is well settled, the Court has
the discretion to return the child to Greece. Citing Antunez-Fernandes v.
Connors-Fernandes, 259 F.Supp.2d 800, 815 (N.D.Iowa 2003). Therefore,
Respondent failed to show that even if July 4, 2005, were the relevant date,
there was no set of facts under which the petition could be granted. The
Court thus found that Respondent had not established the Article 12 defense
of timeliness as a matter of law, and denied the motion to dismiss the
petition at this time on the basis of that defense.
Attorney
Sanctioned For Making Materially False Statement to Court
In
Rogovin v Rogovin,
27 A.D.3d 233, 812 N.Y.S.2d 41( 1st Dept, 2006) the Appellate Division held
that Petitioner's attorney's failure in the custody proceeding to inform
Family Court that the very relief he was seeking therein, an injunction
against respondent's removing the subject child from the State of New York,
had been denied, both by Supreme Court and the Appellate Division, in this
Supreme Court habeas corpus proceeding he had also initiated on behalf of
petitioner, was a sanctionable materially false factual statement. The
omission was compounded by the attorney's assertion in opposition to the Law
Guardian's motion for sanctions that he had verbally informed Family Court
of the prior applications, which assertion was proven false by the
transcript of the Family Court proceedings submitted with the Law Guardian's
reply. The intent to protect a child does not justify a lack of candor with
the court. It found no basis exists to disqualify the Law Guardian, who,
having determined that the child was unimpaired in accordance with local
standards, properly acted as the child's advocate in urging retention of the
custodial status quo, rather than as an aide to the court in determining the
child's best interests (citing, inter alia, Guardian Definitions and
Standards, State of New York Unified Court System, Statewide Administrative
Judge for Matrimonial Matters). Argument from the Law Guardian in support of
the child's stated preferences is to be expected.
Hague Convention Does Not Give
Courts Jurisdiction Over Visitation Claims
In
Cantor v Cohen,
442 F.3d 196 (4th
Cir. 2006) the Fourth Circuit Court of Appeals held that International Child
Abduction Remedies Act ("ICARA"), 42 U.S.C. §§ 11601-11610, does not confer
jurisdiction upon federal courts to hear visitation claims.
District Court Finds Under Colombian
Law Father Was Exercising Rights of Custody Under Hague Convention
In
Garcia v Angarita,
440 F.Supp.2d 1364 (S.D. Florida, 2006) the Court found that Title XII of
the Colombian Civil Code sets forth the rights and duties between parents
and children. Article 253 provides, "Both parents ... shall exercise the
parental care in the upbringing and education of their legitimate children".
Title XIV of the Colombian Civil Code sets forth the rights of "Patria
Potestas." Article 288 provides that "Paternal authority is the set of
rights that the law acknowledges to the parents over their non-emancipated
children ..." It further provides that, "The exercise of the parental
authority over their legitimate children shall be exercised jointly by both
parents. In the absence of one of the parents, the other parent shall
exercise the paternal authority." Article 338 of the Colombian Minors' Code
provides that, "When a minor is going to go out of the country with one of
the parents or with a person different from their legal representatives,
they should previously obtain the permission of the parent or legal
representative who is not traveling, authenticated before a notary or
consular authority". The court found that that under Colombian law both
parents exercised the rights of patria potestas at the time of the
children's removal to the United States. However, based upon a provisional
custody decree, the mother had the right to determine where, within the
country of Colombia, the children would reside, at least until the Colombian
courts entered a final decree that stated otherwise. The father retained a
ne exeat right, however, pursuant to the provisions of Article 338 of the
Minor's Code. Therefore, the mother was not permitted to relocate the
children outside of Colombia without the permission of the father, which was
not obtained.
Grave Risk of Harm Ruling Reversed By Tenth
Circuit for Evidentiary Errors
In Didur v Viger,
(
10th Cir. 2006)
No. 05-3440 D.C. No. 05-CV-2188-JWL) the Tenth
Circuit Court of Appeals reversed the district court and remanded for
further proceedings. It pointed out that the district court denied the
petition on the basis that the respondent, Thomas Viger, met his burden of
establishing by clear and convincing evidence a grave risk of harm to J.D.
if the child were returned to Ms. Didur’s custody in Canada. The Court found
that the parties had agreed that on the [grave risk] issue, petitioner was
willing to proceed on a proffer from respondent of the facts that respondent
believed he could prove. By agreeing to proceed on a proffer, petitioner was
not agreeing that the respondent could actually prove those facts. The
district court mischaracterized the July 18 hearing as an adversarial
hearing where Ms. Didur had the opportunity to challenge the truthfulness of
Mr. Viger’s accusations. The record reflected otherwise. The district court
also determined that Ms. Didur had waived her right to challenge the
admissibility of Mr. Viger’s evidence because she had not specifically
objected to the district court’s decision to admit the evidence under the
relaxed standards of the Hague Convention. The Court of Appeals disagreed.
It found that Ms. Didur objected to the entire process employed by the
magistrate judge in disregarding the parties’ agreement and treating the
proffered evidence as fact without giving her the opportunity to challenge
it. Necessarily included in this objection was an objection to the
magistrate judge’s decision that all of the evidence was properly admissible
for a merits determination. It held that the magistrate judge’s merits
decision, as adopted by the district court, constituted a procedural error
that required it to reverse the denial of Ms. Didur’s petition and remand
for further proceedings to allow Ms. Didur to present rebuttal evidence
and/or to challenge the admissibility of the proffered evidence presented by
Mr. Viger. Note: The Court rendered an order and judgment which is not
binding precedent, except under the doctrines of law of the case, res
judicata, and collateral estoppel but which may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Seventh Circuit Embraces Mozes Approach To
Determining Habitual Residence Under Hague Convention
In Koch v Koch,
450 F.3d 703 (7th Cir.,2006) Dane Koch appealed from the district court's
order granting Antonia Koch's petition under the Hague Convention. The
district court noted that the principal issue under the Convention and ICARA
was whether Dane had removed the children from Germany wrongfully. That
question turned on the "habitual residence" of the children at the time they
were removed. The district court initially disavowed the Ninth Circuit's
approach in Mozes, finding it inconsistent with the intent of the drafters
of the Convention and with the jurisprudence of the other signatories.
Applying a purely fact-based approach, the court found that the most
important factors in determining habitual residence were geography and
duration. Charles and Annalena had lived in Germany for more than three
years, which constituted the near entirety of Annalena's life and well over
half of Charles' life. The court found that in light of this duration, the
parents' long-term plans regarding residence were largely irrelevant.
Moreover, Dane, Antonia and the children were not in Germany on a visit nor
was this a situation where one parent remained behind. Rather, the family
moved to Germany as a family because Dane found work there. They took all of
their belongings with them except for a few large items and established a
home and a life in Germany. Dane worked, Antonia cared for the children and
Charles attended school. Further, Dane and Antonia were not strangers to
Germany, both having lived there for most of their adult lives. Thus, there
can be little doubt that Charles and Annalena became habitual residents of
Germany. Koch v. Koch, 416 F.Supp.2d 645, 652-53 (E.D.Wis.2006). The Seventh
Circuit had not yet decided the standards for determining habitual residence
and court surveyed the other circuits and some international decisions. It
noted that many of the courts treated the inquiry as purely factual until
the Ninth Circuit decided the case of Mozes v. Mozes, 239 F.3d 1067 (9th
Cir.2001). Following Mozes, most of the circuit courts adopted the Ninth
Circuit's analysis, which required the court to determine whether the
parents intended to abandon their previous habitual residence, judging that
intent at the last time the parents had a shared intent. That shared intent,
under the Ninth Circuit's approach, could be overcome if the child had
become acclimatized to the new place. The Seventh Circuit found that its
sister circuits review the district court's findings of fact for clear error
and review the court's application of the law to those facts as well as its
interpretation of the Convention de novo. Seeing no reason to depart from
the considered approach of our sister circuits, it decided to apply this
standard of review. Determinations of intent involve questions of fact and
it would defer to the district court's findings on intent unless they are
clearly erroneous. The ultimate determination of habitual residence is a
mixed question of law and fact to which it would apply de novo review. The
Seventh Circuit saw no reason to disavow the Mozes approach. Mozes asks the
court to determine first whether the parents shared an intent to abandon the
prior habitual residence, in this case, the United States. In determining
the parents' intent, the court should look at actions as well as
declarations. When Dane and Antonia moved to Germany, they shared a settled
intention to move there for an indeterminate period of time, delimited by
their financial circumstances and by Dane's employment goals. Although they
also shared a subjective wish to someday return to the United States,
habitual residence is not determined "by wishful thinking alone." The
establishment of a habitual residence requires an actual change in
geography, as well as the passage of an appreciable amount of time. "When
the child moves to a new country accompanied by both parents, who take steps
to set up a regular household together, the period need not be long."
Following Mozes, most of the sister circuits focused on the parents' last
shared intent in determining habitual residence. Dane argued that the
couple's shared intent to someday return to the United States was therefore
determinative on the issue of habitual residence here. But shared intent to
someday return to a prior place of residence does not answer the primary
question of whether that residence was effectively abandoned and a new
residence established by the shared actions and intent of the parents
coupled with the passage of time. In Whiting v. Krassner, 391 F.3d 540,
548-550 (3d Cir.2004), cert. denied, --- U.S. ----, 125 S.Ct. 2938, 162
L.Ed.2d 871 (2005) the parents of an infant agreed that their child would
reside with the mother in Canada for a period of two years and then would
return to the United States depending on certain conditions. The court found
that the fact that the mother and child were to return to the United States
subject to certain conditions did not in any way diminish the parents'
settled intention that the two were to remain in Canada for at least two
years. The court characterized this as an intent to abandon the United
States for a definite and extended period in the life of the infant.
Together with a settled purpose, this agreement shifted the habitual
residence of the child to Canada. The Seventh Circuit found that there was
no meaningful difference between the situation presented in Whiting and the
facts of the case and affirmed the judgment.
Will Provision For
Guardianship Does Not Confer Rights of Custody Under Hague Convention
In Roy v Roy,
432 F.Supp.2d 1297 (S.D. Florida, 2006) the petitioners were the Irish
grandparents who alleged that the minors were wrongfully removed to the
United States from Ireland by their own father, the respondent. On July 29,
2005, the respondent ("the father") moved from Ireland to the United States
with his three children. The father and the children had been living in
Ireland since 1997, along with the children's mother, the father's wife
("the mother"). Prior to 1997, the family resided in England. However, the
family moved to Ireland after the mother was diagnosed with cancer and chose
to live near her Irish family. The mother passed away in November 2000, and
the father and children continued to live in Ireland, where the children
attended school and the father was employed until 2005. Ten days before the
mother died, on October 27, 2000, she executed a will in Ireland. She had
also previously executed a will in England. In the Irish will, the mother
stated, "I appoint the Said Richard Hanley and Ellen Hanley to be Guardians
of my infant Children." This Irish will was probated on August 20, 2003.
While in Ireland, the father and children lived in the home of the
petitioners, the maternal grandparents ("the grandparents"). The
Grandparents argued that the children were wrongfully removed from their
Irish home in violation of the Hague Convention. The Court noted that the
Convention states that " 'rights of custody' shall include rights relating
to the care of the person of the child and, in particular, the right to
determine the child's place of residence." Art. 5. Furthermore, "ri | |
