Important New Decisions - December 27, 2011

Where Family Court Has No Jurisdiction to Issue Order of Protection, Such Order Is Void Ab Initio for All Purposes, Including the Power to Hold a Party in Contempt

In Matter of Parrella v Freely, --- N.Y.S.2d ----, 2011 WL 6091331 (N.Y.A.D. 2 Dept.) in January 2010 the appellant was dating the former boyfriend of Lisa Ann Parrella, with whom Parrella had a child. At that time, Parrella filed a petition against the appellant, alleging that the appellant violated a previous order of protection. On July 13, 2010, the Family Court entered an order which, granted the petition and directed the appellant to stay away from Parrella and to refrain from communicating with or about Parrella for a period of two years. The Appellate Division reversed finding that the Family Court lacked subject matter jurisdiction over the proceeding. It observed that Family Court is a court of limited jurisdiction and, thus, it cannot exercise powers beyond those granted to it by statute. It held that where the Family Court has no jurisdiction to issue an order of protection or temporary order of protection initially, such an order is void ab initio for all purposes, including the power to hold a party in contempt (citing Matter of Robert B.- H. [Robert H.], 82 AD3d 1221, 1222; see Matter of Fish v. Horn, 14 N.Y.2d 905, 906). Pursuant to Family Court Act 812(1), the Family Court's jurisdiction in family offense proceedings is limited to certain proscribed criminal acts that occur among enumerated classes of people, including persons who share an "intimate relationship" with each other (Family Ct Act 812[1][e]. Here, there was no evidence in the record that the appellant and Parrella had a direct relationship. Instead, the evidence revealed that the parties had met personally only during the course of the court proceedings and that the appellant had never met Parrella's child. Therefore, there was no evidence that the parties' relationship was an "intimate relationship" within the meaning of Family Court Act 812(1)(e). Since the parties did not have an "intimate relationship" within the meaning of Family Court Act 812(1)(e), the Family Court lacked subject matter jurisdiction to issue the original order of protection or to issue the order appealed from.


Courts Will Not Require Children to Subsidize Parent's Financial Decision to Forgo Present Employment for Potential Future Income.


In Matter of Berrada,--- N.Y.S.2d ----, 2011 WL 6090172 (N.Y.A.D. 3 Dept.) the parties were married in 1996 and had three minor children. After they separated in 2006, the mother obtained custody of the children and petitioned for child support (Matter of Berrada v. Berrada, --- AD3d ---- [appeal No. 511629, decided herewith] ). Rejecting the father's claim that he was unable to find employment, a Support Magistrate determined that he had failed to conduct a thorough job search, imputed an annual earning capacity to him of $125,000, and directed him to pay $2,834 a month in child support. The father did not file objections to that order. He did, however, file modification petitions in 2009, again asserting that he was unable to find work. The Support Magistrate dismissed the petitions, finding that the father had not demonstrated a
substantial change in circumstances. Family Court denied the father's objections and the Appellate Division affirmed. It held that in order to succeed upon his modification petitions, the father was required to establish a substantial change in circumstances since the entry of the child support order that warranted a modification of his obligation
to pay child support. At the time of the hearing, the father remained unemployed, devoting his attention to various sales enterprises that paid on commission without producing consistent income. While he made an effort to find full-time employment within his narrow area of expertise, his search did not extend elsewhere. Moreover, the
father was attempting to develop his own business and testified that he would only
"jump on" a full-time job offer if it paid a substantial salary. Notwithstanding the father's argument that the new venture constitutes a substantial change of circumstances in that it may produce income in the future, the courts will not require the children to subsidize a parent's financial decision" to forgo present employment for potential future income.


Family Court Did Not Abuse Discretion by Terminating the Father's Child Support Obligation Where Mother Deliberately and Unjustifiably Frustrated Father's Visitation.

In Matter of Luke v Luke,--- N.Y.S.2d ----, 2011 WL 6090137 (N.Y.A.D. 3 Dept.)
Petitioner (father) and respondent (mother) were the parents of one child (born in 2001). The parties separated prior to the child's birth. In 2003, the parties agreed to a stipulated order of joint custody, physical custody to the mother and visitation with the father on alternate weekends. These visits apparently only occurred for one or two months. Also in 2003, a support order was entered against the father. The father then moved to New Jersey. Each party claimed that he or she lacked contact information for the other after 2003. In 2004, Family Court issued a default order awarding the mother sole custody, with visitation to the father as agreed upon by the mother. In 2007, the father returned to Schuyler County. That same year, the mother apparently moved to New Jersey and then Pennsylvania. In 2009, the father sought Family Court's assistance to locate the mother and filed a petition seeking visitation with the parties' daughter. In October 2009, after these proceedings had commenced, the mother moved back to Schuyler County, but within a few months she moved to Steuben County. The father filed numerous petitions seeking visitation, custody and downward modification of support, and alleging that the mother violated the prior visitation order as well as temporary orders entered during these proceedings. Following a hearing Family Court awarded the parties joint custody with the child spending four days per week with the father and three days per week with the mother. The court also terminated the father's support obligation effective January 2010, the date he filed his support modification petition.
The Appellate Division held that Family Court's modification of custody has a sound and substantial basis in the record. The parties' numerous moves, the father trying to reestablish contact and the mother hindering those efforts all provided changed circumstances reflecting a need to modify the prior custody and visitation order. Although the father did not actively attempt to enforce his visitation rights and pursue his relationship with his daughter from 2003 to 2009, he testified that he had no vehicle in New Jersey, had no contact information for the mother or child and did not know how to find them. The mother stopped bringing the child to visitation after one or two months in 2003 and-despite having agreed to the visitation-filed unsubstantiated petitions to terminate the visitation soon after entering the stipulation. The mother moved numerous times, including four times during the pendency of these proceedings, and never informed the father. One was a safe house where she fled to escape domestic abuse by her paramour-abuse that was witnessed by the daughter and caused her to fear the paramour. The mother also violated almost every temporary visitation order entered during the pendency of these proceedings by failing to bring the child to visit with the father. When she did not have a suitable place to live, she wrote a letter assigning custody of her daughter and son to her paramour's adult daughter, without consulting the father. The paramour's daughter also deprived the father of his court-ordered visitation, and the mother passed blame to her. At the time of the Lincoln hearing, the child had not seen her mother for almost two months, and the mother testified that she called only when she had minutes on her phone. While the father had lost contact with his daughter for several years and did not adequately explain why he took so long to attempt to reestablish a connection, at the time of the hearing he had been working for a year to form a relationship with her. Those efforts were constantly thwarted by the mother and her paramour's daughter, who failed to bring the child to visits and even kept the child out of school on Fridays when the father was supposed to pick the child up for weekend visitation. Everyone agreed that the child should remain in the same school district; the father lived near the child's school, while the mother had moved to a different district. The father also agreed to open a preventative services file
with the local social services agency and bring the child to mental health counseling.
Family Court did not err in placing the child with the father for four days per week.
While the law expresses a preference for keeping siblings together, the rule is
not absolute and has become complicated by changing family dynamics and the
presence of multiple half siblings the court must ultimately decide what is
best for the child at issue. Here, the custody petitions regarding the mother's son-the half brother of the daughter involved in this appeal-were withdrawn or dismissed, leaving that child in the mother's custody. Evidence indicated that the son would have difficulty being separated from his half sister, but there was no evidence of ill effects to the daughter from any separation. In any event, Family Court's order left those children together for three days each week. Considering the totality of the circumstances, including the custodial interference by the mother, the record contained a sound and substantial basis for the court's custody determination.
The Appellate Division held that Family Court did not abuse its discretion by terminating the father's child support obligation. The court was authorized to suspend support payments for periods when the mother wrongfully interfered with or withheld visitation. The record supported the finding that the mother deliberately and unjustifiably frustrated the father's visitation by failing to produce the child, moving without notifying the father and attempting to informally transfer custody to another
person who also did not produce the child for visitation-again without informing
the father. Additionally, the court's custody determination placed the child in the father's care for the majority of each week, providing a basis to eliminate his support obligation. Hence, the court did not err in terminating the father's support obligation as of January 2010, the date he filed a petition seeking such relief.



Family Offense Petition is Sufficient if it Alleges specific acts committed at identified places and times, which, if proven, would constitute a family offense enumerated in Family Court Act 812(1)

In Matter of Little v Renz, --- N.Y.S.2d ----, 2011 WL 6224696 (N.Y.A.D. 2 Dept.) the Appellate Division observed that a proceeding pursuant to article eight of the Family Court Act is originated by the filing of a petition containing an allegation that the respondent committed an enumerated family offense. As a general matter, the factual allegations in a pleading must be "sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense" (CPLR 3013; Family Ct Act 165). It found that the petition in this case was not "a vague and conclusory repetition of the statutory language inasmuch as it alleged specific acts committed at identified places and times, which, if proven, would constitute a family offense . Accordingly, the allegations contained in the petition were sufficient to allege a family offense enumerated in Family Court Act 812(1), and the Family Court erred in denying the petition and dismissing the proceeding on the ground that the petition was insufficient.


Violation Petition Insufficient Where it Lacked Sufficient Specificity to Provide Respondent with Proper Notice of Alleged Violation and Failed to Outline How Petitioners Rights Prejudiced

In Miller v Miller, --- N.Y.S.2d ----, 2011 WL 6090163 (N.Y.A.D. 3 Dept.) the parties were the parents of two children, born in 2004 and 2005. A custody order entered in March 2008 granted sole legal custody to respondent (mother) with visitation to petitioner (father) as agreed between the parties. Among other provisions, it further required that the children be properly supervised at all times and that neither parent smoke or allow a third party to smoke in a vehicle in which the children are passengers. In June 2010, the father filed a violation petition alleging that the mother was in contempt of this order in that she failed to properly supervise and discipline the children, as she had permitted the older child to be violent towards others and to smoke. Finding that the petition lacked sufficient specificity to provide the mother with proper notice and failed to outline how the father's rights had been prejudiced, Family Court dismissed the petition without a hearing, but ordered a neglect investigation by the St. Lawrence County Department of Social Services. The Appellate Division affirmed. It held that the petition was subject to the requirements of CPLR 3013, and thus required to "be sufficiently particular" as to provide notice to the court and opposing party of the occurrences to be proved and the material elements of each cause of action (CPLR 3013; Family Ct. Act 165[a] ). The generalized allegations of the petition, even liberally construed, failed to provide the mother with notice of a particular event or violation such that she could prepare a defense (CPLR 3026). Further, the father failed to assert how the mother's alleged failings " 'defeated, impaired, impeded or prejudiced' " his rights, as required to sustain a civil contempt finding. Although Family Court properly ordered an investigation to determine whether a neglect or abuse proceeding should be initiated, this protective measure did not serve to remedy the defects in the father's petition. Accordingly, there was no error in the dismissal of the petition
without a hearing.


Appeal Dismissed for Failure of Appellant to Include Transcripts

In Matter of Katz v Dotan, --- N.Y.S.2d ----, 2011 WL 6091334 (N.Y.A.D. 2 Dept.) the Appellate Division observed that it is the obligation of the appellant to assemble a proper record on appeal (see Family Ct Act 1118; CPLR 5525[a]). The failure to provide necessary transcripts inhibits the Court's ability to render an informed decision on the merits of the appeal. In this case, the full record of the proceedings in the
Family Court had not been transcribed. The appeal was dismissed, as the papers provided were patently insufficient for the purpose of reviewing the issues the father has raised.


Appeal Dismissed for Failure to Full Trial Transcript in Record

In Clarke v Clarke, --- N.Y.S.2d ----, 2011 WL 6225188 (N.Y.A.D. 2 Dept.) the plaintiff appealed from a judgment of the Supreme Court which, after a nonjury trial, inter alia, failed to direct the defendant to pay child support arrears, failed to award her maintenance, and failed to equitably distribute the value of the defendant's medical license. The Appellate Division dismissed the appeal. It observed that an appellant is obligated to assemble a proper record on appeal, which must include any relevant transcripts of proceedings before the Supreme Court (CPLR 5525[a]; 5526). The record must also "contain all of the relevant papers that were before the Supreme Court, including the transcript, if any, of the proceedings" ( Matison v. County of Nassau, 290 A.D.2d 494, 494). Here, the plaintiff appealed from a judgment which failed to direct the defendant to pay child support arrears, failed to award the plaintiff
maintenance, and failed to equitably distribute the value of the defendant's medical license. However, the plaintiff's failure to provide the Court with the full transcript of the nonjury trial conducted before the Supreme Court rendered the record on appeal inadequate to enable the Court to reach an informed determination on the merits. Thus, the appeal had to be dismissed.


Father's Failure to Properly File a Full Record on Appeal, Despite His Contrary Statement Made Pursuant to CPLR 5531, Warranted Imposition of Costs

In Haleniuk v. Persaud, 89 A.D.3d 601, 933 N.Y.S.2d 33 (1 Dept, 2011), in affirming the order of Family Court, the Appellate Division found that the evidence in the record sufficiently supported Family Court's finding that the father failed to meet his burden of showing that the child was constructively emancipated. Although the record reflected a strained relationship between the father and child, it did not support a finding that the child completely refused to have a relationship with the father. The Appellate Divison held that the father's failure to properly file a full record on appeal, despite his contrary statement made pursuant to CPLR 5531, warranted the imposition of costs incurred in preparing and filing a respondent's appendix (CPLR 5528[e]; 22 NYCRR 600.10[c][1] ).