Important New Decisions - November 11, 2011

Child Support Provisions of So-ordered Stipulation Which Did Not Contain Recitals Mandated by the Cssa Not Enforceable, but Remaining Provisions Held Enforceable.


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


Party Who Accepts Benefits of Separation Agreement for Considerable Period of Time Deemed to Have Ratified it but Party Who Receives Virtually No Benefits from Agreement Cannot Be Said to Have Ratified It.

In Kessler v Kessler, --- N.Y.S.2d ----, 2011 WL 5241275 (N.Y.A.D. 2 Dept.) on June 10, 1980, after 25 years of marriage, the parties entered into a separation agreement, which provided that the plaintiff husband would make payments to the defendant wife for her support and maintenance and for the mortgage and carrying costs relating to the marital residence, where the defendant continued to reside. The plaintiff complied with the terms of the separation agreement and, in 2009, he commenced this action for a conversion divorce. In response to the plaintiff's motion for summary judgment, the defendant submitted an affidavit asserting that the plaintiff had procured the separation agreement through fraud and duress, and that the agreement was unconscionable. The defendant alleged that the plaintiff had concealed from her
his vast wealth, and had induced her to enter into the separation agreement at a time when, unbeknownst to her, New York's equitable distribution law was about to be enacted. The Supreme Court granted the plaintiff's motion for summary judgment, and subsequently entered a judgment of divorce directed the parties to comply with the terms of the separation agreement which was incorporated, but not merged into, the judgment of divorce. The Appellate Division affirmed. It held that a party who accepts the benefits provided under a separation agreement for any considerable period of time is deemed to have ratified the agreement and, thus, relinquishes the right to challenge that agreement. By contrast, when a party received virtually no benefits from the agreement, he or she cannot be said to have ratified it. Assuming the truth of the allegations set forth in the defendant's affidavit, the benefits she received pursuant to the separation agreement were far less than those she likely would have received had there been an equitable distribution of the assets accumulated during the marriage. The record, however, did not support a finding that the defendant received "virtually no benefits" from the agreement. Moreover, while a spouse will not necessarily be held to have ratified an agreement if it is found to be the product of duress and overreaching, the disadvantage to the defendant created by the alleged fraud and duress in this case could not be deemed to have persisted throughout the 29-year period during which the defendant accepted the benefits of the separation agreement without challenging it. Thus, the plaintiff made a prima facie showing that the defendant ratified the separation agreement. In opposition, the defendant failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment.


Appellate Division Explains Doctrine of Res Judicata and Collateral Estoppel. Incidents in Counterclaim Occurring More than 5 Years Before Commencement May Be Properly Included If Relevant to Evaluation of Party's Claim for Cruelty Divorce.

In Maybaum v Maybaum, --- N.Y.S.2d ----, 2011 WL 5244417 (N.Y.A.D. 2 Dept.) the defendant wife and the plaintiff husband were married on March 13, 1995. Two children were born of the marriage. In April 2010, the defendant commenced a proceeding pursuant to article 8 of the Family Court Act, alleging that the plaintiff committed certain family offenses. Thereafter, the plaintiff commenced the action for a divorce on the ground of cruel and inhuman treatment. On April 27, 2010, the parties appeared before the Family Court and entered into a stipulation on the record. The parties stipulated that the defendant was withdrawing the pending family offense petition, with prejudice, in exchange for the plaintiff giving the defendant exclusive use of the marital residence. The parties agreed that the stipulation was binding in the action for a divorce pending in the Supreme Court. Subsequently, the defendant answered the complaint in this action and asserted a counterclaim for a divorce and ancillary relief on the ground of cruel and inhuman treatment. In reply, the plaintiff asserted affirmative defenses, including, as a third affirmative defense, that the defendant's counterclaim was insufficiently specific to meet the requirements of CPLR 3016(c), and, as a fourth affirmative defense, that the counterclaim was barred, in whole or in part, by the doctrines of res judicata, collateral estoppel, and equitable estoppel, based on the stipulation between the parties. The parties made several motions and cross motions for relief.
The Appellate Division held that the Supreme Court erred in granting the plaintiff's motion to strike stated paragraphs of the defendant's counterclaim on the grounds of res judicata, collateral estoppel, and equitable estoppel. The allegations in the defendant's counterclaim for a divorce on the ground of cruel and inhuman treatment, and the allegations in the plaintiff's family offense petition, did not arise out of the same transaction or series of transactions. "It is not always clear whether particular claims are part of the same transaction for res judicata purposes. A 'pragmatic' test has been applied to make this determination-analyzing 'whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage' " (Xiao Yang Chen v. Fischer, 6 N.Y.3d 94, 100-101). Applying this test, it concluded that the family offense petition and counterclaim for a divorce on the ground of cruel and inhuman treatment did not form a
convenient trial unit. Thus, the defendant was not precluded from litigating her counterclaim for a divorce on the ground of cruel and inhuman treatment in the separate action in the Supreme Court.
The Appellate Division pointed out that collateral estoppel, or issue preclusion, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party, whether or not the tribunals or causes of action are the same. The doctrine applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action. Collateral estoppel effect will only be given to matters actually litigated and determined in a prior action. An issue is not actually litigated if, for example, there has been a default, a confession of liability, a failure to place a matter in issue by proper pleading or even because of a stipulation. Here, the issue of whether the plaintiff committed certain acts against the defendant was never determined in the Family Court proceeding, and the defendant's participation in the stipulation to withdraw her family offense petition, with prejudice, could not be construed to be the kind of determination following a full and fair opportunity to litigate the issues that would be necessary to collaterally estop the defendant from establishing that the plaintiff committed the alleged acts. Further, the circumstances set forth by plaintiff simply did not rise to a level of unconscionability warranting application of equitable estoppel.
Since the doctrines of res judicata, collateral estoppel, and equitable estoppel did not preclude the defendant from litigating certain of the allegations in her counterclaim that were alleged in her family offense petition, the Supreme Court should have granted defendant's cross motion to dismiss the plaintiff's fourth affirmative defense alleging that the defendant's counterclaim was barred in whole or in part by the doctrines of res judicata, collateral estoppel, and equitable estoppel, as that defense had no merit.
The Appellate Division held that Supreme Court erred in granting plaintiff's motion to strike stated paragraphs of the defendant's counterclaim, in effect, as time-barred on the ground they alleged acts occurring more than five years prior to the commencement of the action. The allegations in the counterclaim relating to incidents occurring more than five years before the commencement of the action may be properly included to the extent that those allegations may be relevant to an evaluation of a party's claim for a divorce on the ground of cruel and inhuman treatment in the context of the entire marriage.



Second Department Explains Requirements of Anders Brief and Responsibilities of Counsel in Relieving Assigned Counsel Who filed Inadequate Brief

In Matter of Giovani S, --- N.Y.S.2d ----, 2011 WL 5222834 (N.Y.A.D. 2 Dept.) the mother appealed from a fact-finding order in a child protective proceeding which found that she had neglected the child. The mother's counsel submitted a brief pursuant to Anders v. California (386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493), in which he moved for leave to withdraw as counsel for the appellant. The Appellate Division granted the motion, relieved assigned counsel for the appellant and appointed a new attorney as counsel to perfect the appeal from the fact-finding order. In its decision, written by Justice Skelos, the Court reviewed the basic principles espoused in Anders and their proper application, as well as the responsibilities of counsel in relation to the filing of briefs pursuant to Anders.
The Court observed that the fundamental principles upon which Anders was founded apply in both criminal and family law cases. The Due Process and Equal Protection Clauses of the Fourteenth Amendment converge to require that indigent criminal defendants, faced with the risk of loss of liberty or grievous forfeiture are granted equal rights to appeal through the representation and advocacy of assigned counsel. Likewise, a parent's concern for the liberty of the child, as well as for his care and control, involves too fundamental an interest and right to be relinquished to the State without the opportunity for a hearing, with assigned counsel if the parent lacks the means to retain a lawyer (Matter of Ella B., 30 N.Y.2d 352, 356-357. Accordingly, indigent parties to certain Family Court proceedings, such as child protective proceedings pursuant to Family Court Act article 10, are entitled to be represented by assigned counsel (Family Ct Act 262[a][i]. Nonetheless, there is one limitation placed upon the right to counsel on appeal. It does not include the right to counsel for bringing a frivolous appeal. The United States Supreme Court in Anders set forth a procedure, subsequently adopted by the New York State Court of Appeals, which, when properly utilized in the context of potentially frivolous appeals, safeguards an indigent appellant's rights (see Anders v. California, 386 U.S. at 744). According to that procedure, if, after a conscientious examination of the record, assigned counsel finds a case to be wholly frivolous, counsel should so advise the court and request permission to withdraw. In fulfilling assigned counsel's role as an active advocate such requests to withdraw must be accompanied by a brief reciting the underlying facts and highlighting anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court--not counsel--then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If the court "finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal. If, however, the court is satisfied that counsel has diligently investigated the possible grounds of appeal, and agrees with counsel's evaluation of the case, then leave to withdraw may be allowed, and the appeal decided.
The Appellate Division pointed out that there are essentially two steps to the Court's review of an attorney's motion to be relieved pursuant to Anders. First, the Court must satisfy itself that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client's appeal. Significantly, although an indigent whose appeal is frivolous has no right to have an advocate make his case to the appellate court, such an indigent does, in all cases, have the right to have an attorney, zealous for the indigent's interests, evaluate his case and attempt to discern nonfrivolous arguments. "Every advocate has essentially the same professional responsibility whether he or she accepted a retainer from a paying client or an appointment from a court. In the fulfillment of that responsibility, counsel should promptly obtain any transcripts, and consult with the client, as well as with trial counsel (see People v. Stokes, 95 N.Y.2d at 637; People v. Gonzalez, 47 N.Y.2d at 610-611). Further, assigned counsel "must master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal. In searching for the strongest arguments available, the attorney must be zealous and resolve all doubts and ambiguous legal questions in favor of his or her client. Only after such a diligent and conscientious examination of the case will counsel be in a position to determine that there are no nonfrivolous issues to raise on appeal. Once that determination is made, as counsel must file a brief "reciting the underlying facts and highlighting anything in the record that might arguably support the appeal. The Court noted that the Court of Appeals' decisions in Stokes and Gonzalez provide guidance as to what will be considered a deficient brief. These cases demonstrate, counsel must, at a minimum, draw the Court's attention to the relevant evidence, with specific references to the record; identify and assess the efficacy of any significant objections, applications, or motions; and identify possible issues for appeal, with reference to the facts of the case and relevant legal authority. Counsel cannot merely recite the underlying facts, and state a bare conclusion that, after reviewing the record and discussing the case with the client, it is the writer's opinion that there are no nonfrivolous issues to be raised on appeal . Where counsel has failed in his or her role as advocate by filing a deficient brief, on this basis alone, new counsel will be assigned to represent the appellant on the appeal. If the Court is satisfied, however, that counsel diligently examined the case on the indigent appellant's behalf, the next step in the Court's review is to determine, based upon an independent review of the record, whether counsel's assessment that there are no nonfrivolous issues for appeal is correct. In analyzing whether nonfrivolous appellate issues exist, it is essential to appreciate the distinction between a potential appellate argument that is merely meritless or unlikely to prevail and one that is frivolous. There must, however, be a finding of frivolity, not merely an evaluation of the likelihood that the defendant will prevail on the merits, because the exception to the constitutional requirement that certain indigent parties receive representation on appeal is predicated on the fact that the Fourteenth Amendment does not require appointed counsel to press wholly frivolous arguments. Thus, once a court determines that the trial record supports arguable claims, there is no basis for the exception" and the indigent appellant is entitled to representation. Accordingly, it is inappropriate for the Court to analyze the merits of any particular appellate issue where the appellant has not received the benefit of a merits-based brief prepared by counsel. The question, therefore, to be answered by the Court in every Anders case is only whether "the appeal lacks any basis in law or fact". The question is not whether the appeal presents any issues that have merit, but whether it presents any issues that are "arguable" on the merits .
Turning to the present appeal, the Appellate Division found that counsel's Anders application failed on both levels of review. The Anders brief filed by assigned counsel for the mother contained a four-page statement of facts, in which he reviewed the testimony given by the sole witness (a police officer) presented by ACS, and ACS's documentary evidence. The brief reviewed only the witness's direct testimony, not the mother's counsel's cross-examination, and did not identify and evaluate the mother's counsel's objections. Significantly, although this case was resolved on motions, counsel's brief merely stated that motions were made, and indicates how they were decided, but does not include any summary of the arguments made by the parties. Finally, counsel failed to analyze any possible appellate issues or highlight anything in the record that might arguably support the appeal. The "argument" section of counsel's brief merely stated in conclusory fashion: "The undersigned has fully analyzed the record below, performed the necessary legal research, and it is my legal opinion that there are no nonfrivolous issues to raise on appeal." Accordingly, counsel failed in his role as advocate by filing a deficient brief, and, on this basis alone, the mother was entitled to new counsel. It noted that based upon an independent review of the record, the record presented nonfrivolous issues including, but not limited to, whether ACS met its burden of showing that, as alleged in the petition, the mother was involved in a drug sale in the child's presence; whether ACS's evidence was insufficient to establish neglect, at least as a matter of law and relatedly, whether the matter was improperly decided on a motion for summary judgment.