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Week 6-16-2019

Written by Samantha Sparacino

Supreme Court properly exercised its discretion in denying the defendants motion to hold the plaintiff in civil contempt

Here, the defendant appeals from an order which denied the defendants motion to hold the plaintiff in civil contempt for failure to comply with certain provisions of a judgment of divorce. According to the judgment, the defendant shall have exclusive occupancy of the former marital residence until the earlier occurrence of multiple events, including the partieschild attaining the age of 21, upon which the premises shall be immediately placed on the market for sale.The judgment further awarded the defendant a share of the plaintiffs pension and directed the defendant to submit a QDRO authorizing distribution and payment from said pension. The child turned 21 and later vacated the marital residence, along with the defendant thereafter

The defendant told the plaintiff to place the residence on the market, which the plaintiff refused to do as the residence was in need of repairs and certifications before doing so. The defendant moved to hold the plaintiff in civil contempt for failure to comply with provisions of the judgment. The Appellate Division agrees with the lower Courts denial of the defendants motion as the judgment contains no provision stating that placing the marital residence on the market was the plaintiffs responsibility and therefore, the defendant failed to prove that the plaintiff disobeyed a clearly expressed unequivocal mandate. Regarding the QDRO, it was the defendants responsibility to submit and the record does not show that the defendant met this obligation (see O‘Brien v OBrien, 115 AD3d 720, 723724)

Cover v Cover, 2018-11270 

Failure to establish evidence of a document setting forth a waiver or the terms of modification of a separation agreement 

In a separation agreement, the parties agreed that the father would pay the mother child support and that they would share equally in the costs of the child’s undergraduate and graduate education, extracurricular activities, and uncovered medical, dental, orthodontic, eye care, and mental health treatment. The father terminated his child support payments to the mother in May. 

The child was attending school on a full-tuition scholarship. The father argued that the parties agreed that they would share equally in paying the child’s living expenses in lieu of the father paying child support. 

The mother filed a violation petition and the father is appealing from the resulting Family Court order which denied his objections to an order made after a hearing which determined that the father violated the child support provisions of the parties’ separation agreement and directed entry of a money judgment against the father in the sum of $50,865. The father failed to establish that there was an existing document clearly setting forth a waiver or the terms of a modification of the agreement (cf. Matter of Williams v Chapman, 22 AD3d 1015; Matter of O’Connor v Curcio, 281 AD2d 100, 104; Parmigiani v Parmigiani, 250 AD2d 744, 745). 

Matter of English v Smith, 2018-07362 

Order of protection affirmed as conduct does not constitute acts that are protected by the First Amendment

Here, the father appeals from an order of protection which, after a finding that he committed the family offense of harassment in the second degree, among other things, directed him to refrain from communicating with the mother for a period up to and including July 12, 2019, subject to courtordered parental access with the partieschild. The mother met her burden of establishing, by a fair preponderance of evidence, that the father committed those acts which would warrant an issuance of the aforementioned order of protection. Based on the evidence, the father engaged in unnecessary conduct that alarmed and seriously annoyed the mother, which, contrary to the fathers contentions, said conduct was not protected by his First Amendment right (see Family Ct Act 812[1]; Penal Law 240.26[3]; Matter of Pochat v Pochat, 125 AD3d 660, 661662; People v Shack, 86 NY2d 529, 535536). The order of protection is affirmed

Matter of Esipova v Goloubev, 2018-10084 

Father’s loss of employment does not warrant a downward modification of his child support obligation

In a Family Court proceeding, the father appeals from an order which denied his objections to an order, which after a hearing, denied his petition for a downward modification of his child support obligation. The Support Magistrate properly denied his petition as he did not meet his burden of establishing the existence of a substantial change in circumstances warranting a modification and based on the fact that the father’s assets and earning capacity was properly considered (see Family Ct Act 451; Matter of Patscot v Fisco, 166 AD3d 981, 981; Matter of Lindsay v Lindsay Lewis, 156 AD3d 642, 642; Matter of Baumgardner v Baumgardner, 126 AD3d 895, 896; Leuker v Lueker, 132 AD3d 739, 741; Matter of Fragola v Alfaro, 45 AD3d 684, 686; cf. Matter of Silver v Reiss, 74 AD3d 1441, 1441-1442). The Appellate Division agrees with the Family Court’s denial of the father’s objections. 

Matter of Gharachorloo v Regeer: 2019-00841 

Hold the mother in civil contempt for violating certain provision of the parties’ final order of custody on consent

In a custody proceeding, the mother appeals from an order which, among other things, granted the father’s motion to hold the mother in civil contempt for violating certain provisions of the parties’ final order of custody and visitation on consent. The record portrayed that the mother violated the provisions of the order issued on consent by failing to inform the father of the child’s travel outside of the country on numerous occasions, failing to produce the child for the father’s parental access on two occasions, and relocating the child to a new school without the father’s knowledge. Further, the mother’s actions prejudiced the father, as they were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party” (Matter of Figueroa-Rolon v Torres, 121 AD3d 684, 685; see Matter of Kellezi v Kellezi, 106 AD3d 737; Matter of Munster v Munster, 17 AD3d 600). Therefore, the Supreme Court properly granted the motion to hold the mother in civil contempt and awarded the father an attorney’s fee for services 

related to the mother’s contemptuous behavior (see Judiciary Law 773). 

Matter of Guy v Weichel, 201608067 

Court errs in entering a proposed order on consentwhich was not actually agreed upon by both parties 

In a custody proceeding, the mother appeals from two orders. The first order granted, without a hearing, that branch of the fathers petition which was to modify a prior consent order of custody, which awarded sole legal custody of the partieschild to the mother, to the extent of awarding joint legal custody to the parties. The second order continued joint legal custody upon the terms stated in the first order, among other things. Following the initial order of custody, the father later petitioned so as to award him sole custody of their child. The parties thereafter attempted to negotiate a new custody settlement. After several court appearances and adjournments, the parties appeared in the Supreme Court on December 14, 2017, when the fathers attorney presented an unsigned written order. The Court, declaring that enough is enough,stated that the matter had already been fully settled on consentat the July 2017 appearance and further accepted the fathers proposed order and entered it as a consent order.The proposed and entered order granted the fathers motion to modify the prior custody order so as to award the parties joint legal custody

The Appellate Division reverses both of the orders that the mother is appealing from. The Court erred in determining that the proposed order was made on consent of both parties, as the mothers attorney objected to said order. The lower Court also should not have granted the fathers petition without a hearing. The matter is remanded to the Supreme Court for a new determination to decide whether or not the father has established a sufficient change in circumstances to warrant the modification (see Matter of Scott v Powell, 146 AD3d 964, 965). 

Matter of Guy v Weichel, 2018-02084; Matter of Guy v Weichel, 2018-02103 

Dismissed grandmother‘s petition for custody of the child after contradicting testimony regarding abuse from the father

In a Family Court proceeding, the maternal grandmother appeals from an order which dismissed her petition for custody of the subject child after the mother had passed away. The grandmother claimed that the child’s father was physically and verbally abusive. During the hearing, the grandmother and the father’s ex-girlfriend testified to instances of abuse, however, there were contradictions in the testimony. The Appellate Division affirmed the lower Court’s decision due to the contradictions in the allegations in prior sworn testimony and the grandmother’s failure to meet her burden of establishing the existence of extraordinary circumstances granting standing to seek custody (see Matter of Bailey v Carr, 125 AD3d at 853). 

Matter of Samuels v Pegues, 2018-0187

Lower Court properly denies father’s objections to order directing money judgment against him

Here, the father appeals from an order which denied his objections to an order which directed a money judgment against him and in favor of the mother after the mother filed a violation petition against him for his failure to pay child support. The father objected, contending that he had not 

been served with process and that the Family Court lacked jurisdiction over him. Evidence such as a sheriff’s certificate of service demonstrates that the father was served with the summons and notice of petition directing the father to appear in Family Court on February 16, 2018, which he did. At the appearance, the mother identified him and the father made no objection to the manner of service, therefore, the Court properly denied the father’s objections to the Support 

‘s order (see Family Ct Act 167; Matter of Jackson v Idlett, 103 AD3d 723; see also Matter of Haber v Haber, 306 AD2d 282, 283). 

Matter of Thompson v Savane, 2018-12679 

Court rightfully determines that it is in the best interests of the child to award the father sole custody

Here, both parties filed for sole legal and physical custody of their child. The lower Court awarded the father sole custody and parental access to the mother, which the mother appeals from. The Appellate Division agrees with the Family Court’s determination that it is in the child’s best interests for the father to be awarded sole custody as the determination had a sound and substantial basis in the record (see Matter of Murphy v Lewis, 149 AD3d 748; Matter of Goodman v Jones, 146 AD3d 884, 886; Matter of McPherson v McPherson, 139 AD3d 953, 953). 

Matter of Turcios y Cordero, 2018-01521 

Father deprived of opportunity to be heard on the issue of revoking the order suspending the father’s commitment

In this case, the father appeals from an order which confirmed an order of commitment. The finding determined that the father willfully failed to obey an order of child support, recommended that he be committed, and set a purge amount by paying the child support sum of $7,807.34. Before revoking a suspension for an order of commitment, the Family Court must allow the respondent to be heard and to present witnesses on the issue of whether good cause exists to revoke the suspension (see Matter of Madison County Support Collection Unit v Campbell, 162 AD3d at 1147-1148; Matter of Putnam County Probation Dept. v Dimichele, 120 AD3d at 820-821; Matter of Thompson v Thompson, 59 AD3d 1104, 1005). Since the not awarded the opportunity to be heard on the aforementioned issue, the orders must be reversed and the matter is remanded to the Family Court for a new hearing and determination. 

Matter of Zhuo Hong Zheng v Hsin Cheng, 2018-08643; Matter of Zhuo Hong Zheng v Hsin 

Cheng, 2018-08644 

The Court denies plaintiff’s motion to unseal the in camera interview transcript of the subject child 

The plaintiff in this case appeals from an order which denied the plaintiff’s motion to, among other things, unseal the minutes of an in camera interview with the parties’ child and to remove the attorney for the child. While the lower Court has the authority to direct the unsealing of the in camera interview transcript, the Appellate Division agrees with the Supreme Court’s determination to deny the plaintiff’s request to unseal the transcript as he failed to meet his 

burden of establishing sufficient evidence to warrant the unsealing (see Matter of Anderson v Harris, 73 AD3d 456, 458; see also Matter of Heasley v Morse, 144 AD3d 1405, 1408; Matter of Julie E. v David E., 124 AD3d 934, 937-938). Furthermore, the attorney for the child will not be removed because there is no evidence in this case that portrays a conflict of interest or failure to diligently represent the best interests of the child (see Matter of King v King, 266 AD2d 546, 547). 

Sagaria v Sagaria, 2018-0585

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Petroske Riezenman & Meyers, P.C. staff