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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