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Week 4-17-2019

Written by Samantha Sparacino

Failing to provide sufficient evidence that a family offense was committed and the Court declining to compel the child to testify

The Appellate Division affirmed the lower Court’s decision to deny the family offense petition and dismiss the proceeding. The Appellate Division agrees with the Family Court’s finding that the petitioner failed to provide sufficient evidence to establish that a family offense was committed by the stepfather as this is supported by the record (see Matter of Richardson v Richardson, 80 AD3d 32, 44; Matter of Oritz v Ortiz, 2 AD3d 1236). Furthermore, the Appellate Division affirmed that the Family Court correctly exercised its discretion in declining to compel the child to testify (see Matter of Amoya S. [Henry C.-Syvonne C.], 100 AD3d 641; Matter of Imman H., 49 AD3d 879, 881).

Matter of Mullings v Abrahams, 2018-02259

Prohibiting a party from filing further petitions

The Family Court granted a mother’s petition which, without a hearing, modified an order of the same court so as to limit the father to supervised visits, and prohibited the father from filing any further petitions against the mother without permission from the Family Court.

The Appellate Division modified that same order by deleting the provision thereof prohibiting the father from filing any further petitions against the mother without permission of the Family Court. “Public policy generally mandates free access to the courts. However, a party may forfeit that right if she or he abuses the judicial process by engaging in meritless litigation motivated by spite or ill will” (Matter of Pignataro v Davis, 8 AD3d 487, 489 [citation omitted]). The Appellate Division disagrees with the lower Court’s decision as the father in this case did not abuse the judicial process.

Furthermore, the mother’s petition to modify the parental access order so as to limit the father to only supervised visits was granted without a hearing. A hearing was not necessary because there was no unresolved factual issue to be determined (see Matter of Long v Donoghue, 167 AD3d 614; Matter of O’Hanlon v. Cornelius, 213 AD2d 406; cf. S.L. v J.R., 27 NY3d 558).

Matter of Knauss v. Elman, 2018-06978

Dismissing petitions with prejudice

Here, a petitioner moved to withdraw her petitions approximately three years after they were filed, on the scheduled hearing date. With delays in the proceeding such as adjournments, the petitioner’s accepted application for newly assigned counsel, and the lower Court affording the petitioner the opportunity to amend her petitions, the Appellate Division affirmed the Family Court order insofar as appealed from to dismiss the proceedings (see CPLR 3217[b], [c]; Matter of Sellers v Gardner, 166 AD3d at 786; Matter of Reid v Brown, 165 AD3d at 950-951; Matter of Fiacco v Engler, 79 AD3d at 1207). The Court held “the determination of whether, and upon what terms and conditions, to grant an application to discontinue an action under CPLR 3217(b) lies within the sound discretion of the court.”

Matter of Hersh v. Cohen, 2018-06633

Failure to consider a reduction in income regarding a petition for downward modification of child support obligation

The father petitioned to enforce certain provisions of the parties’ separation agreement as he alleged that his former spouse was not paying her share of add-on expenses as per their agreement. He also filed a petition for downward modification of his child support obligation, alleging that his income had declined by more than 15% and that the parties’ remaining unemancipated child has not resided with the mother since 2015. The Support Magistrate dismissed both petitions after a hearing. The father appealed.

The Family Court should not have dismissed that branch of the father’s petition which was for a downward modification of his child support obligation without considering the reduction in his income by more than 15% (see Family Ct Act § 451 [3][b][ii]). However, the father did not provide evidence that he notified the mother of her alleged violations of the parties’ separation agreement, therefore, the Family Court did not err in dismissing the father’s enforcement petition.

In regards to the father’s claim in his petition that the parties’ unemancipated child has not resided with the mother since 2015 and was currently residing with the father when the child was not at college, the Appellate Division agrees that the Support Magistrate did not err in determining that the father failed to establish a substantial change in circumstances that would warrant a downward modification of his child support obligation (cf. Matter of Moradi v Noorani, 163 AD3d 570, 570; Matter of DiPaola v DiPaola, 28 AD3d 480, 480).

Matter of Heintzman v Heintzman, 2017-10562

Family Court failed to delineate the factors it considered in determining the issue of inconvenient forum

Here, the parties entered in an order on consent, awarding the mother custody and the father parental access as arranged between the parties. The order further provided that the mother “may not relocate without first notifying [the] father in writing prior to said move,” and that the father had to be kept informed about the children.

The mother relocated to Connecticut with the children and alleged that she orally informed the father of the relocation. The father filed violation petitions against the mother alleging, inter alia, that the mother violated the Family Court’s order by relocating and denying him contact with the children.

The children moved to dismiss the father’s petitions on the ground that New York was an inconvenient forum, arguing that it was in the best interests of the children for the Family Court to decline to exercise jurisdiction. The Family Court granted the motion to dismiss the father’s petition and declined to exercise jurisdiction, determining that New York was an inconvenient forum and a court of another state was a more appropriate forum.

Pursuant to Domestic Relations Law § 76-f, a court of this State which has jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act may decline to exercise it if it finds that New York is an inconvenient forum and that the court of another state is a more appropriate forum (see Domestic Relations Law § 76-f[1]; Matter of Montanez v Tompkinson, 167 AD3d 616, 618; Matter of Mojica v Denson, 120 AD3d 691, 692; Matter of Hassan v Silva, 100 AD3d 753, 754).

The court is required to consider the statutory factors and allow the parties to submit information regarding these factors before determining that New York is an inconvenient forum (see Pyronneau v Pyronneau, 130 AD3d 707, 708; Matter of Mojica v Densen, 120 AD3d at 692; Matter of Rey v Spinetta, 8 AD3d 393, 394).

Here, the Appellate Division found that the Family Court failed to delineate the factors it considered in determining that New York was an inconvenient forum, as required by statute. The Appellate Division remits the matter to the Family Court, for a new determination of the motion of the children, delineating the factors considered in reaching its conclusion (see Matter of Ferris v Quinones, 44 AD3d at 855).

Matter of Goode v Sandoval, 2018-01873

Domestic Relations Law § 72

The paternal grandmother filed a petition, pursuant to Domestic Relations Law § 72, for visitation with the subject child. The Family Court granted her petition only to the extent of awarding her weekly video contact with the subject child commencing September 1, 2018, and ending on February 1, 2019.

While the petition was pending, the mother and subject child relocated to Colorado. The Appellate Division agrees with the Family Court’s determination that it was not in the child’s best interest to award the paternal grandmother visitation in New York as the record proves that the parties’ lack the resources to travel for visitation, among other things (see Matter of Angel R.F. [Nicholas F.], 114 AD3d 781, 782; Matter of Smith v Smith, 92 AD3d 791, 792; Matter of Powell v Blumenthal, 35 AD3d 615, 616). However, the Family Court should not have limited the grandmother’s weekly video contact to a period of five months.

Matter of Garcia v Santana, 2018-10625

Determining a party had standing to seek custody of or visitation with the children based on equitable estoppel

Nicole Perperis, the biological mother of the two subject children, who were born via artificial insemination in September 2014 and May 2016, respectively, entered in a consent order of custody and parenting time with her former domestic partner, Jennifer Chimienti. The parties agreed to share joint custody of the children, with physical custody and final decision-making authority to Perperis.

The parties’ relationship ended in early 2017, and thereafter, they appeared at a court hearing which determined that Jennifer Chimienti had standing to seek custody of or visitation with the subject children via equitable estoppel. Perperis appealed from so much of the consent order as, upon incorporating by reference the September 2017 order, determined that Chimienti had standing to seek custody of or visitation with the children.

The Appellate Division agrees with the Family Court’s determination to apply an equitable estoppel analysis to decide the issue standing in the case. Equitable estoppel, whether used in the offensive posture to enforce rights or the defensive posture to prevent rights from being enforced, is only to be used to protect the best interests of the child (see Matter of Juanita A. v Kenneth Mark N., 15 NY3d at 6; Matter of Joseph O. v Danielle B., 158 AD3d 767, 771).

The Appellate Division agrees with the Family Court’s determination that, with respect to the older child, the application of an equitable estoppel analysis is not precluded by a legal presumption that the older child, who was born when Perperis was still married to her former wife, is the child of the former wife. The Appellate Division further agrees that the marital presumption of legitimacy that typically applies to children born during a marriage (even same- sex marriages)  (see Domestic Relations Law § 24[1]; Family Ct Act § 417) was rebutted by clear and convincing evidence (see Matter of Beth R. v Ronald S., 149 AD3d 1216, 1217; see e.g. Murtagh v Murtagh, 217 AD2d 538).

Perperis and her former wife separated less than a month after the older child was conceived, and they executed a stipulation of settlement which stated, inter alia, that there were no children of the marriage and that the presumption of legitimacy was rebutted.

The Family Court found that it would be detrimental to the childrens’ best interests to disrupt their relationship with Chimienti and the Appellate Division affirms this decision (see Matter of Juanita A. v Kenneth Mark N., 15 NY3d at 6; Matter of Shondel J. v Mark D., 7 NY3d 320). The record demonstrated that Chimienti played a crucial role in the children’s lives and this was fostered by Perperis. Chimienti was in attendance for the prenatal care and births of both children, the parties lived together during the duration of their relationship, and Chimienti had significant access to the children for approximately four months after the parties’ relationship had ended until Perperis refused Chimienti’s access to the children.

While the lower Court should not have prevented Perperis from introducing certain additional evidence regarding Chimienti’s financial contribution to the children, the Appellate Division determined that this additional evidence would not have altered the determination that clear and convincing evidence demonstrated that Perperis created and fostered a parent-child relationship between Chimienti and the children (see generally Matter of Ivan J. v Kathryn G., 164 AD3d 1151, 1152).

Matter of Chimienti v Perperis, 2018-03818

Cohabitating with another man and the continuing of maintenance payments

Here, the parties entered into a separation agreement which was incorporated but not merged into their subsequent judgment of divorce. A provision of the separation agreement provided that the appellant would pay the respondent maintenance for a total of seven years, noting that “maintenance payments to the [respondent] shall end upon the death or remarriage of the [respondent], or the death of the [appellant].” The separation agreement also provided the respondent with exclusive occupancy of the marital residence until the parties’ youngest child turned 18 or graduated high school, the respondent’s remarriage, or the respondent’s cohabitation with an unrelated individual.

When the respondent began cohabiting with another man, the parties entered into an amendment to the separation agreement in which they agreed to sell the marital residence. The appellant stopped paying the respondent maintenance, alleging that the respondent was “holding [herself] out” as another man’s wife.

The lower Court granted the respondent’s petition to enforce the maintenance provisions of the parties’ judgment of divorce and directed the appellant to pay the maintenance arrears. The appellant moved to set aside the maintenance provision of the parties’ judgment of divorce, which the Support Magistrate dismissed. The Support Magistrate did not err in dismissing his motion because the Family Court lacks the jurisdiction to modify the terms of the parties’ separation agreement, even if the parties were to agree (Kleila v Kleila, 50 NY2d 277, 282; see Matter of Johna M.S. v Russell E.S., 10 NY3d 364, 366).

In this case, the term ‘remarriage” as used in the maintenance provision of the parties’ separation agreement is unambiguous and not subject to determination. That cohabitation was mentioned in another article of the separation agreement as a terminating event, but not when discussing maintenance, further supports the conclusion that nothing less than the respondent’s actual remarriage would terminate the appellant’s maintenance obligation. Therefore, the Court held that maintenance could only terminate as set forth in the agreement, since DRL 248 (regarding remarriage) was not in the maintenance article, it could not be used as a basis to terminate maintenance.

Matter of Blonder v Blonder, 2018-10307

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Petroske Riezenman & Meyers, P.C. staff