Important New Decisions - November 1, 2011

Factors Set Forth in Family Court Act 413(1)(F) Should Be Considered Only Where Court Is Able to Calculate Basic Child Support Obligation Pursuant to Family Court Act 413(1)(C), Not Where Calculated Pursuant to Family Court Act 413[1][K]

In Salvatore D. V Shyou H., --- N.Y.S.2d ----, 2011 WL 4975542 (N.Y.A.D. 1 Dept.), the Appellate Division affirmed an order which directed respondent to pay $950 a month for the support of the parties' child. It held that the Support Magistrate properly ordered child support based on the needs of the child, since respondent presented insufficient evidence to determine her gross income ( Family Court Act 413[1][k]). Respondent's stated expenses were more than twice the income reflected on her tax return. The Support Magistrate found incredible respondent's testimony regarding her employment, her living situation and loans from her employer and brother. The Support Magistrate properly declined to consider the factors set forth in Family Court Act 413(1)(f), including the child's receipt of Social Security disability benefits. Such factors should be considered only where, unlike here, the court is able to calculate the basic child support obligation pursuant to Family Court Act 413(1)(c). Respondent's testimony, including that she was a well-known esthetician with celebrity clients and 22 years of experience, supported the Support Magistrate's determination that she is able to pay the child support obligation. The Support Magistrate was not required to rely on respondent's account of her finances.


Third Department Holds That Emancipation by Employment Occurs Only When Child Attains Economic Independence. Fact That Child May Work Full Time Is Not Determinative Even Where Child Lives on His/her Own.

In Drumm v Drumm, --- N.Y.S.2d ----, 2011 WL 4975452 (N.Y.A.D. 3 Dept.)
Petitioner ( mother) and respondent (father) were the divorced parents of three children, Miranda, Nicholas and Matthew (born in 1990, 1994 and 1997, respectively). In May 2006, the parties entered into a separation agreement, pursuant to the terms of which they agreed to share physical custody of their children and to divide equally, among other things, the cost of the children's health insurance and any uncovered medical expenses. In apparent contemplation of that arrangement, the parties agreed to waive any child support "at [that] time." Although not entirely clear from the record, it appeared that Miranda and Nicholas thereafter elected to reside primarily with the mother, prompting the parties to enter into stipulations of settlement that referred various issues to Family Court, including child support for Miranda and Nicholas and the parties' respective obligations for the children's health care costs. The
separation agreement, as modified, was incorporated but not merged into the
parties' May 2009 amended judgment of divorce. In September 2009, the mother and the father entered into an order on consent wherein they agreed to, among other things, grant each other a "right of first refusal" during any period of time when the parent having physical custody of Matthew would be absent for five hours or longer. As the father often was required to work on weekends, he offered--and the mother frequently accepted-- the additional parenting time with Matthew. Shortly after entering into this stipulation, the mother commenced s modification proceeding contending that, having availed herself of the opportunity to spend more time with Matthew, she now had physical custody of him more than 50% of the time and, as such, was entitled to child support. Following a hearing, the Support Magistrate found that the mother's decision to exercise her right of first refusal did not alter the parties' shared custody arrangement as to Matthew and, therefore, the mother was not entitled to child support for him. The Support Magistrate further determined that Miranda became emancipated in June 2008 when she graduated from high school and obtained full-time employment and limited any award of support for Miranda accordingly. Family Court, sua sponte, dismissed the mother's subsequent objections to the Support Magistrate's order as untimely and, upon reargument, adhered to its prior decision. The Appellate Division reversed. It found that the record did not support Family Court's finding that the mother's objections were filed outside the 35-day window set forth in Family Ct Act 439(e) and held that Family Court erred in refusing to entertain the mother's objections on the merits. The Appellate Division held that with regard to the mother's request for child support for Matthew, the mere fact that the mother elected to exercise her right of first refusal with respect to this particular child did not fundamentally alter the parties' shared custody arrangement. At best, the mother's election resulted in her choosing to spend an additional three or four days each month with her son. In its view, regardless of the burden of proof employed, this minor and entirely voluntary "change in circumstances" was insufficient to warrant the mother's request for child support as to this child.
However, it found merit to the mother's objection regarding Miranda's alleged emancipation. A parent is statutorily obligated to support his or her child until the age of 21 (see Family Ct Act 413[1] ) unless the child is sooner emancipated, which occurs, insofar as is relevant here, when the child attains economic independence through employment. The fact that a child may work full time is not determinative, as
a child cannot be deemed economically independent if he or she still relies upon a
parent for significant economic support. This remains true even where, as here, the child in question no longer resides with one of the parties, for long as the child is still
dependent on one of them for a significant portion of his or her support. Here, although the father testified that Miranda went to work full time after graduating from high school, the record fell short of establishing that she had achieved economic independence. Notably, there was no documentation of Miranda's salary or expenses or the degree to which she continued to receive financial support from her mother. Accordingly, the Support Magistrate's determination in this regard could not stand. The Court was also persuaded that the Support Magistrate erred in failing to achieve some level of parity between the parties by consistently using their respective projected incomes for 2009 in computing child support. Although the Support Magistrate's decision to utilize the mother's projected income for 2009 instead of her actual income for 2008 was well founded (due to nonrecurring income that the mother received in the prior year), no similar explanation was offered for electing to use the father's actual 2008 income instead of his projected--and presumably higher--income for 2009. The record failed to disclose a valid reason for failing to utilize similar income valuations for both parties
when computing their respective support obligations for Miranda and Nicholas. The orders were reversed, on the law and the matter remitted to the Family Court for further proceedings not inconsistent with the Court's decision.
In a footnote the Court pointed out that to the extent that the parties' separation agreement defined emancipation as, among other things, a "child establishing a permanent residence away from his or her custodial parent," it noted that "the parties cannot contract away the duty of child support" (Matter of Thomas B. v. Lydia D., 69 A.D.3d 24, 30 [2009] ).


Ineffective Assistance of Counsel Requires Reversal of Neglect Orders

In Matter of Jaikob O., --- N.Y.S.2d ----, 2011 WL 4974840 (N.Y.A.D. 3 Dept.) the Appellate Division reversed an order which granted petitioner's application to adjudicate the children to be neglected. The Appellate Division held that as a result of deficiencies in the representation provided by his assigned trial counsel at the fact-finding hearing, he was denied meaningful representation. It found that counsel's ineffectiveness permeated the proceedings. At the fact-finding hearing, counsel failed to make an opening statement or to cross-examine petitioner's witnesses on relevant matters such as the children's exposure to respondent's allegedly neglectful conduct during the relevant time period (i.e., February to June 2008). Counsel's cross-examination of the mother and the wife, both clearly young victims of disturbing domestic violence, was at points tasteless and irrelevant, even prurient. Counsel made no motions at the close of petitioner's case and no closing arguments, stating only, "I think everything's been said." Counsel never submitted, as directed by Family Court, proposed findings of fact and conclusions of law. Likewise, petitioner submitted no findings or conclusions of law. Notably, at the close of the fact-finding hearing, Family Court merely stated that it found petitioner's witnesses to be "credible," but made no finding of neglect, deferring its decision thereon. Surprisingly, counsel then consented to immediately proceeding to a dispositional hearing. Particularly disturbing on the issue of whether counsel provided meaningful representation was a letter sent by counsel to respondent in prison after the fact-finding hearing, but before a neglect determination was issued, in response to his request for a new attorney. The letter contained a not-so-subtle threat that counsel would not send respondent anything, or convey any information to or cooperate with his next attorney, if he pursued a change of attorneys; counsel also flaunted that he had achieved financial success, upon which he elaborated, with his "clients who have money" and essentially did not need this assignment. The Appellate Division found that the letter was inappropriate and served to undermine any confidence respondent might have had in counsel effectively representing him. Accordingly, the fact-finding order was reversed. In light of the foregoing, all proceedings at which counsel represented respondent subsequent to the fact-finding hearing and order were invalid.
It also deemed it important to point out that, with regard to the dispositional hearing, counsel failed to object to petitioner's oral motion to dispense with its duty to make diligent reunification efforts for respondent and the children based upon the termination, years earlier, of respondent's (and the wife's) parental rights to their three oldest children. Such a motion by petitioner was required to be "in writing " and on notice to respondent, allowing him "the opportunity to gather evidence and raise issues of fact in answering papers and prepare for an evidentiary hearing". Moreover, absolutely no proof was offered by any party at the dispositional hearing addressing the children's "best interests" either on the propriety of terminating reasonable reunification efforts (see Family Ct. Act 1039-b[b][6] [last paragraph] ) or on the ultimate disposition upon the neglect finding (see Family Ct. Act 1045, 1052); the current status and placement of the children was not disclosed at the hearing or in the dispositional order. Counsel filed no notice of appeal from the resulting dispositional order. As respondent was denied meaningful representation by trial counsel at the fact-finding hearing, the fact-finding order, as well as the subsequent resulting orders of Family Court, could not stand.


Third Department Holds That Evidence of Child’s Needs Not Necessary in Fixing Child Support. CSSA Creates Rebuttable Presumption Guidelines Contained Will Yield Correct Amount of Child Support.

In Matter of Marcklinger v Liebert, --- N.Y.S.2d ----, 2011 WL 4975510 (NYAD 3 Dept)
in a prior appeal in this child support case, the Appellate Division rejected petitioner's contention that the Support Magistrate improperly considered the parties' combined income exceeding $80,000 in the calculation of the basic child support obligation for their unemancipated child, but remitted the matter to Family Court for an articulation of a rationale for using the statutory percentage rather than the so-called "paragraph (f)" factors or a combination of both (72 A.D.3d 1431 [2010] ). Upon remittal, the Support Magistrate recalculated petitioner's support obligation, using a higher adjusted gross income for respondent as petitioner had previously requested and in accordance with Family Court's prior order, which reflected respondent's receipt of maintenance payments from petitioner. This resulted in petitioner's pro rata share being decreased to 57.65% and respondent's share being increased to 42.35%. The Support Magistrate then applied the statutory percentage set forth in the Child Support Standards Act to the parties' total combined income--first to the portion up to $80,000 and then to the portion that exceeds that amount--and determined that petitioner's pro rata share amounted to $256 per week. The Appellate Division affirmed. It noted that in his amended order, the Support Magistrate reasoned that the application of the statutory percentage yielded an amount that was "neither unjust nor inappropriate" considering that (1) the child would have enjoyed an enhanced standard of living had the parties remained married, (2) the $80,000 cap had not been adjusted for inflation since 1989, (3) the income disparity between the parties, and (4) petitioner did not offer any reason for a contrary finding. This articulation of reasoning indicated that the Support Magistrate carefully considered the parties' circumstances and found no reason to depart from the prescribed percentage. Although petitioner faulted respondent for not submitting evidence of the child's needs, application of the CSSA "creates a rebuttable presumption that the guidelines contained therein will yield the correct amount of child support" and, if petitioner believed that his presumptive pro rata share was unjust or inappropriate, it was his burden to establish such.



Appellate Division Holds Family Court Has Jurisdiction to Determine Paternity of Child Born to Married Woman Rejecting Argument Based upon Statutory Definitions of "Child," "Mother" and "Father" Limiting Those Terms to Situations Involving "A Child Born out of Wedlock"

In Matter of Nathan O v Jennifer P, --- N.Y.S.2d ----, 2011 WL 4975692 (N.Y.A.D. 3 Dept.) up until at least April 6, 2009, petitioner and respondent Jennifer P.
( mother) engaged in a sexual relationship, although they disputed when that relationship ended. In mid-April 2009, the mother engaged in a sexual relationship and began cohabiting with respondent Uwe P. The mother married Uwe P. in June 2009 and gave birth to a child on December 6, 2009. At the time of the birth, Uwe P. was listed as the child's father on the birth certificate. Shortly after the child's birth, petitioner filed two petitions seeking a declaration of paternity and either custody or visitation. Uwe P. cross-petitioned for a declaration of paternity. Family Court denied the mother's motion to dismiss the petitions and ordered the parties and child to submit to DNA testing, with the results sealed pending further proceedings. During a hearing to address whether the presumption of legitimacy should preclude DNA testing (see Family Ct Act 532 [a] ), the parties consented to unsealing the DNA test results, which revealed a high likelihood that petitioner was the biological father. The parties then stipulated to an order of parenting time for petitioner, subject to respondents'
right to appeal the court's ruling on jurisdiction and standing. Over respondents'
objections, Family Court declared that petitioner was the father of the child, entered an order of filiation to that effect, and dismissed Uwe P.'s paternity petition. The Appellate Division affirmed.
Respondents argued on appeal that the court had no jurisdiction to determine paternity of a child born to a married woman. The argument was based upon statutory definitions of "child," "mother" and "father" limiting those terms to situations involving "a
child born out of wedlock" (Family Ct Act 512). The Appellate Division held that Respondents' interpretation could not not be harmonized with other aspects of Family Ct Act article 5. For example, their interpretation is belied by the statutory phrase "presumption of legitimacy of a child born to a married woman" (Family Ct Act 532[a] ); the use of the word "married" would be unnecessary and superfluous under respondents' view. Considering the broad grant of jurisdiction in the N.Y. Constitution and in Family Ct Act 511, along with the numerous cases where courts have addressed paternity of children born to married mothers and the conflict between the definitions in Family Ct Act 512 and other aspects of Family Ct Act article 5, it held that Family Court has subject matter jurisdiction to address the paternity of a child born to a married woman. As a "person alleging to be the father," petitioner had standing to
commence a paternity proceeding (Family Ct Act 522). Family Ct Act 523 only requires
the petition to allege that a certain individual is the father of the subject child. A party seeking paternity testing under the Family Ct Act need not provide factual support for the allegations of paternity or nonpaternity; he or she need only articulate some basis for them," sufficient to show that a nonfrivolous controversy exists regarding paternity. In his application filed less than a month after the child's birth, petitioner alleged that he engaged in a sexual relationship with the mother during the probable time of conception, that the mother was not married at that time, and that he was the child's father. This information was sufficient to commence the paternity proceeding. Respondents consented--during the middle of a hearing--to Family Court unsealing the DNA test results. Upon learning of those results, the parties stipulated to the entry of an order of visitation to petitioner, subject to respondents' reservation of the right to appeal based on the court's ruling regarding jurisdiction and standing. In light of their consent, with this limited reservation of rights, respondents waived their argument that Family Court was required to conduct a full hearing concerning the child's best interests (see Family Ct Act 532[a] ) before issuing an order of filiation. Hence, it did not address that argument.


Family Court Erred by Granting the Father's Motion for Summary Judgment Modifying Custody Order Without Allowing Mother Opportunity to Present Evidence. Due Process Requires That a Parent Be Afforded "A Full and Fair Opportunity to Be Heard

In Matter of Jeffrey JJ v Stephanie KK, --- N.Y.S.2d ----, 2011 WL 4975012 (N.Y.A.D. 3 Dept.) Petitioner ( father) and respondent (mother) were the parents of a daughter (born in 2003). Pursuant to a prior order of custody, the parties' apparently shared legal custody of the child; the mother had primary physical custody and the father had liberal visitation time. The father commenced a proceeding seeking primary physical custody of the child after the Rensselaer County Department of Social Services commenced a neglect proceeding against the mother and her husband (stepfather) after receiving a report that the stepfather had been intoxicated while driving with the mother, the subject child and another child in the vehicle. At the fact-finding hearing, the father presented evidence of an existing order of protection that prohibited the stepfather from having any contact with the subject child until July 30, 2010. The father then made an oral motion for Family Court to award him custody, which the court granted over the mother's objection, after it concluded that it was "impossible [for] ... the child's primary residence to be with the mother[,] who is living with [the stepfather,] against whom there is an order of protection." The court further concluded that the issue of the child's best interests had "almost been determined by virtue of the fact that there is an order of protection against" the stepfather. The court then awarded the father primary physical custody of the child with parenting time to the mother. The Appellate Division agreed with the mother that Family Court erred by granting the father's motion without allowing her an opportunity to present any evidence. In a proceeding pursuant to Family Ct. Act article 6 seeking modification of a prior custody order, a full and comprehensive hearing is required. At such hearing, due process requires that a parent be afforded "a full and fair opportunity to be heard. Family Court violated the mother's due process rights when it granted the father's motion for summary judgment on the petition without permitting the mother an opportunity to present any evidence, call any witnesses, or even testify on her own behalf. While the court believed that the order of protection against the stepfather rendered it impossible for it to award the mother primary physical custody, on cross-examination the stepfather indicated that he was willing to move out of the mother's residence until that order expired. However, the mother was denied an opportunity to present evidence regarding the feasibility of this plan when the court granted the father's motion. In a footnote the court observed that the prior order was not included in the record on appeal, which omission ordinarily results in dismissal of the appeal (see Matter of Pratt v. Anthony, 30 A.D.3d 708, 815 N.Y.S.2d 832 [2006] ). However, since there was no dispute as to the terms of the prior order, which were put on the record in open court by Family Court, it decided to reach the merits of this appeal.