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Week 6-5-2019

Written by Samantha Sparacino

Remanded to Supreme Court for hearing of that branch of defendants motion which was to direct the plaintiff to comply with their judgment of divorce

In a matrimonial action, the defendant appeals from an order, which, insofar as appealed from, denied those branches of his motion which was to hold the plaintiff in civil contempt for her alleged failure to comply with the partiesjudgment of divorce by her lack of turning over six boxes of silver coins and bullion to the defendant and further denied the request to direct her to turn over aforementioned items. The lower Court granted that branch of the plaintiffs cross motion which was to direct the plaintiff to pay the sum of onehalf of the proceeds of certain shares of stocks which were liquidated by the defendant, which the Appellate Division agrees with as these provisions regarding the shares were indicated in their judgment of divorce. However, the Appellate Division remanded the matter back to the Supreme Court for a hearing to determine that branch of the defendants motion which was to direct the plaintiff to comply with the judgment by turning over the coins and bullion.

Candea v Candea, 201710208

Defendant appeals from judgment of divorce and plaintiff crossappeals

In an action for divorce and ancillary relief, the defendant appeals, and the plaintiff crossappeals from their judgment of divorce. Based on evidence in the record, the lower Court correctly exercised its discretion in applying the child support percentage to the partiesincome over the statutory cap (see Matter of Santman v Schonfeldt, 159 AD3d 914, 915; Matter of Keith v Lawrence, 113 AD3d 615, 616; larocci v larocci, 98 AD3d 999, 1001). The amount and duration of maintenance determined by the Supreme Court was also providently exercised.

While the Court correctly directed the defendant to maintain health insurance for the benefit of the parties children, the Court should have directed that the plaintiffs pro rata share of such costs be deducted from the defendants basic child support obligation (see Domestic Relations Law 240 [1b][c][5][ii]; Bauman v Bauman, 132 AD3d 791, 793; Rzepecki v Rzepecki, 6 AD3d 1134, 1135). Further, by the plaintiff depositing inherited funds into joint accounts with the defendant, the plaintiff created the presumption that the funds were marital, and accordingly, the Supreme Court should not have awarded the plaintiff a separate property credit related to her inheritance of certain funds and directed the defendant to transfer to her onehalf of that sum (see Renck v Renck, 131 AD3d at 1149; Signorile v Signorile, 102 AD3d at 950; Cresimanno v Cresimmano, 33 AD3d at 649650).

Candea v Candea, 201704329

Court erred in denying the father physical custody

In a child custody proceeding, the father appealed from an order which denied that branch of his petition seeking to modify the partiesprior custody order so as to award him physical custody of the partieschildren. The mother crossappealed after the court denied her request to modify the custody order to award her sole legal custody of the children. The lower Court should have awarded the father physical custody based on evidence including the recommendation of the forensic evaluator and the attorney for the childrens opinion (see Matter of Wosu v Nettles Wosu, 132 AD3d 688, 689), the mothers living situation, and the childrens explicitly stated preferences (see Matter of Dorsa v Dorsa, 90 AD3d 1046, 1047).

Matter of Dupont v Gaston, 2017-12115

Lower Court erred in granting that branch of the mother’s motion which was to dismiss the father’s modification and violation petition

In proceedings pursuant to Family Court Act article 6, the father filed numerous modification and violation petitions against the mother in Family Court, Putnam County, after the mother relocated with their child to Connecticut without the Court’s permission or his knowledge. The lower Court determined that the applications had no merit and prohibited the father from filing further petitions without prior written approval. The father then filed another modification and violation petition as well as moved by order to show cause in Queens County, seeking to hold the mother in contempt for willful violation of the custody order and to award him temporary custody pending a hearing, which the Court denied.

The lower Court should not have determined that it lacked exclusive continuing jurisdiction over the matter (see Domestic Relations Law 76-a). Evidence sufficiently portrayed the child’s significant ties to New York. The Appellate Division reversed the order and remitted the matter to the Family Court, Queens County, for a hearing and a determination of the father’s modification and violation petition.

Matter of Helmeyer v Setzer, 2018-10212; 2019-05678

Appellate Decision decides custody arrangement as Family Court erred in regards to multiple factors

Here, the child appealed from an order which granted the mother’s petition to modify a prior order of custody so as to award her sole legal and physical custody of the child. The Appellate Division concludes that the attorney for the child has the authority to commence an appeal in regards to custody as the court appointed counsel for the child and therefore, shall be awarded the same rights as all parties in this proceeding (see Matter of White v White, 267 AD2d 888, 890). The Family Court concluded that the mother met her burden of establi sufficiently changed circumstances and that awarding her sole custody was in the child’s best interests; however, the lower Court failed to explain this decision and added that a “full decision is to follow,” which never came.

The Appellate Division determined that it would be best to make its own decision on the matter. Contrary to the mother’s contentions, the child’s dental health and hygiene was not extremely poor while residing with the father, as supported by the record. The behavioral and academic difficulties that the subject child was having in school was not a new issue and was not due to any failings of the father. In fact, the father assisted the daughter in obtaining appropriate services to help the child. Further, the mother, in her petitions, explained how the daughter took explicit photos while residing in her father’s residence. The Court found that the father took appropriate actions when learning about this, confiscated her phone, and when the phone was returned to her months later, advised her to leave the phone unlocked and disabled her Internet access. Meanwhile, the mother never took the phone away from the child and was not even aware that parental control restrictions were an option.

The Appellate Division found that the Family Court’s lack of explanation in regards to the decision is unacceptable” as this decision would alter the life of the child by removing her from the home that she had been residing with the custodial parent for approximately nine years. While the mother’s assertation that her relocation to a closer out-of-state residence to the child’s school was considered, this did not constitute a change in circumstances that could warrant a review of the child’s best interests (see Matter of William O. v John A., 151 AD3d 1203, 1204). Based on the information summarized above, the Appellate Division reversed the custody order in question and dismissed the mother’s petition seeking sole legal and physical custody.

Matter of Newton v McFarlane, 2017-13478

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Petroske Riezenman & Meyers, P.C. staff