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Week 6-12-2019

Written by Samantha Sparacino

Family court errs in dismissing fathers modification petition for lack of jurisdiction without a hearing

In a Family Court proceeding, the father appeals from an order that dismissed his modification petition for lack of jurisdiction. In this case, the Court, on consent of the parents, appointed the fathers cousin as the childs legal guardian. The father later petitioned for guardianship of the child, however, the Family Court dismissed the petition, for their lack of jurisdiction, based on the child living with the guardian in Florida since October 2016.

The Family Court should not have determined, without a hearing, that it lack jurisdiction and should have granted the parties the opportunity to provide evidence as to whether the child had maintained sufficient ties with New York and valuable evidence in regards to the childs connections concerning their care, protection, training, and personal relationships(Domestic Relations Law 76-a[1][a]; see Pyronneau v Pyronneau, 130 AD3d 707, 708; Matter of Williams v Davis, 119 AD3d at 950; Matter of Ramirez v Gunder, 108 AD3d 563, 564; Matter of Elbakri v Farag, 71 AD3d 767, 767). The Appellate Division remits this to the Family Court to determine the issue of jurisdiction.

Matter of B. (Anonymous) v F. (Anonymous), 201809897

Court denies objections by the mother as untimely

In this case, the mother filed objections to an amended money judgment order, which were denied by the Family Court as untimely. The mother appeals, contending that the order dated August 18, 2017, was mailed on August 21, 2017, as indicated by the envelope postmark. The Appellate Division agrees with the lower Courts decision that the objections were untimely as the envelope was not among the original papers before this Court on appeal and the postmark date does not establish that the order was not mailed on August 18, 2017 (see Kings Park Classroom Teachers Assn. v Kings Park Central School District, 63 NY2d 742; Ortega v Trefz, 44 AD3d 916, 917).

Matter of Bosse v Simpson, 201801867

Court issued custody order incorrectly stating it was on consentof both parties

Here, the father appeals from an amended order of custody which granted the mothers petition for sole custody of the partieschild, and in effect, denied the fathers petition for custody. Since birth, the child resided with the mother and the father was adjudicated to be the father by a filiation order. The lower Court denied the father a hearing and issued an order awarding the mother custody, and incorrectly stated that the order was issued on consent.An amended order was issued, recognizing that the previous order was not on consent of both parties, the father appeals from this order. Custody determinations should generally be made only after a full and plenary hearing and inquiry.The Appellate Division remits the matter to the Family Court before a different Judge, as the record does not demonstrate sufficient evidence that would deem a custody hearing unnecessary and based on the circumstances of this case (see id; cf. Matter of Long v Donoghue, 167 AD3d 614).

Matter of DiSisto v Dimitri, 201800167

Father failed to meet his burden of providing evidence that his income changed by at least 15% while seeking a downward modification of his child support obligations

The father appeals from an order which denied his objections to the dismissal of his petition for a downward modification of his child support obligation. The Appellate Division agrees with the Family Courts decision based on the fact that while he may have lost his employment, he did not establish that his income had changed by at least 15% or that there had been a significant change in circumstances (Family Ct Act 451[3][a], [b][ii]). Further, the father testified that he was terminated from his employment but was awarded the remainder of his 2017 salary as severance pay.

Matter of Evans v White, 201808940

Vacating finding that appellant committed a family offense of harassment in the first degree

Here, the appellant disagrees with an order of protection which directed him to stay away from the petitioner until March 27, 2019, which found that he committed the family offense of harassment in the first degree. Affording due deference to the lower Courts credibility findings, the petitioner did not establish by a preponderance of evidence that the appellant committed the family offense of harassment in the first degree, so that finding is vacated (see Matter of Korszun v Kwas, 169 AD3d at 907). However, the order of protection will not be disturbed as the petitioner established by preponderance of evidence that the appellant committed the family offenses of harassment in the second degree and criminal mischief in the fourth degree (see Penal Law 145.00[1]; 240.26[1], [3]; Matter of Shank v Shank, 155 AD3d at 876877; Matter of State of New York v Raul L., 120 AD3d at 59; Matter of Konstatine v Konstatine, 107 AD3d 994, 994 995).

Matter of Griffith v Joseph, 2018-04892

Awarding the father additional parental access and liberal communication with the child after terminated contact between the two

Here, after a temporary order of parental rights was issued to the father, he later terminated his visits with the child, alleging that the child refused to participate. The father then filed a petition in 2014 for parental access with the child, contending that it was the mother who had always come between him and the child. After a hearing, the Court awarded the father the right to liberal communication with the child in an effort to rebuild the relationship, as well as additional parental access including day visits and extended parenting time, all of which the child appeals from (see Matter of Newton v McFarlane, AD3d, 2019 NY Slip Op 04386 [2d Dept 2019]). The Appellate Division agrees with the lower Courts determination based on the depth of estrangement between the father and the child. The additional communication and parenting time will assist in the repairing of the relationship between the two and the record demonstrated sufficient evidence that this decision is based on the childs best interests.

Matter of Munoz v Almodovar, 201703494; Matter of Munoz v Almodovar, 201703496

The fathers increase in gross income by more than 15% was sufficient enough to determine a change in his child support obligation

The father in a Family Court proceeding appeals from an order which granted the mothers petition for an upward modification of the fathers child support obligation and further denied the fathers objections to the order. Based on Section 451 of the Family Court Act and since the parties did not opt out of same, the lower Court correctly granted the mothers petition as there was an increase in the fathers gross income of more than 15% and evidence portrayed that more than three years had passed since the fathers child support obligation was established in the partiesstipulation (see Family Ct Act 451 [3][b][I]; Matter of Calta v Hoagland, 167 AD3d 598, 599; Matter of Walsh v Walsh, 154 AD3d 767, 768; Matter of Thomas v Fosmire, 138 AD3d at 1007-1008).

Matter of Regan v Regan, 2018-07356; Matter of Regan v Regan 2018-07358

Court improperly denied family offense of harassment in second degree petition

Here, the petitioner appeals from an order which denied their family offense petition, alleging that the respondent committed the family offense of harassment in the second degree based on a text message sent by the respondent to the petitioner. The Appellate Division disagrees as the text message constituted the petitioner’s burden of establishing preponderance of evidence. The text message provided evidence to portray that it contained a genuine threat of physical harm which must be taken seriously as it was sent while the parties were in a period of extreme marital discord (see Penal Law 240.26[1]; Matter of Mullings v Mullings, 168 AD3d 850, 851; Matter of Washington v Washington, 158 AD3d 717, 718; Matter of Salazar v Melendez, 97 AD3d 754, 755; People v Vega, 95 AD3d 773; cf. People v Dietze, 75 NY2d 47, 51; Paruchuri v Akil, 156 AD3d 712, 714). Therefore, the matter must be remitted to the Family Court for an appropriate order of protection.

Matter of Richardson v Brown, 2018-10613

Support Magistrate improvidently impute income to parents

The father appeals from an order which denied his objections to an order which granted the mother’s petition seeking child support, and directed the father to pay child support in the sum of $664 per month. In the written findings of fact, the Support Magistrate found that neither party had substantiated their income, and she imputed an income for both parties. The record provided that during a brief colloquy among the parties and Support Magistrate, documents were submitted but neither party gave sworn testimony and the Support Magistrate did not request any further documentation (see Matter of Anderson v Pappalarado, 105 AD3d 1043; Abbondola v Abbondola, 40 AD2d 976, 976977). The Support Magistrate’s imputation of income was not supported in the record and the matter is remitted to the Family Court for a new hearing and determination on the petition.

Matter of Vilmont v Vilmont, 2018-10603

Lower Court should have granted the consolidated motions of nonparty law firm and plaintiff seeking interim counsel fees from defendant

Nonparty law firm appeals from an order which denied those branches of the consolidated motions of the plaintiff and the nonparty which were to direct the defendant to pay additional interim counsel fees to the nonparty in the sum of $78,379.86. The Appellate Division reversed the order, directing the defendant to pay additional interim attorney fees to the nonparty in the sum of $58, 784.90. The defendant remained the monied spouse and he failed to rebut the presumption that additional counsel fees should have been awarded to his nonmonied spouse so that both parties have equal opportunities in litigation (see E.J.L. v K.L.L., 38 Misc 3d 389, 406 [Sup Ct, Monroe County); Darby v Darby, 35 Misc 3d 1235[A], 2012 NY Slip Op 510049[U] [Sup Ct, Kings County]).

Pezzollo v Pezzollo, 2016-09225

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Petroske Riezenman & Meyers, P.C. staff