JANUARY 12, 2022 DECISIONS

Matter of Marinho v. Apolinario, 2020-06854

The parties were married and have four children together.  During their marriage, they lived in New Jersey.  The parties entered into a Property Settlement and Separation Agreement (‘the agreement’) in New Jersey, providing that the father was the party of “primary residential custody” and that the mother was a party of “alternate residential custody,” with the parties sharing joint legal custody.  The agreement provided that it must be construed in accordance with New Jersey law.  New Jersey Statutes Annotated provides that “[w]hen the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced…and such children are natives of this State…they shall not be removed out of the jurisdiction against their own consent, if of suitable age to signify the same, or while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order” (NJSA 9:2-2).  A paragraph in the agreement stated that the terms cannot be modified by oral agreement and that “[f]ailure on the part of either party to insist upon strict performance of any of the provisions of this Agreement shall in no way constitute a waiver.”  The agreement was incorporated but not merged into a judgment of divorce.

In June 2019, the father relocated to New York with the oldest child and their two youngest children.  On July 24, 2020, the two youngest children (“subject children”) went to the mother’s home for her parental access for the weekend, but she refused to return the children to the father.

The father began two proceedings in the Suffolk County Family Court, in effect, to hold the mother in contempt for her willful violation of the custody provisions of the judgment and the provisions of the agreement incorporated therein, and for modification of those custody provisions.  The mother cross-petitioned for modification of the custody provisions.

At a hearing, the Family Court noted that the New Jersey court had ceded jurisdiction to it.  The mother’s counsel argued that the father violated the agreement by relocating.  The father testified that he left New Jersey because he had been laid off from his job there and he had found a new job on Long Island.  He alleged that he contacted the mother in May 2019 regarding possible plans to leave New Jersey, and although the mother “didn’t love the idea,” she “didn’t oppose it.”

In an August 2020 decision, the Family Court determined, following a hearing, that the father failed to establish that the mother violated the custody provisions of the agreement that were incorporated into the judgment.  In the order appealed from, the Family Court, among other things, dismissed the father’s amended petitions with prejudice.  The father appealed.

The Second Department found that the father failed to demonstrate by clear and convincing evidence that the mother knowingly disobeyed an unequivocal mandate of the court (see Judiciary Law § 753; Matter of Figueroa-Rolon v. Torres, 121 AD3d at 685) because the father removed the subject children from New Jersey in the absence of judicial approval or consent of the mother.  The mother’s alleged oral consent to the move did not comply with the parties’ agreement.

 

Matter of Lopez v. Campoverde, 2021-03461

the parties have one child together.  In a March 6, 2018 order, the father was directed to pay $103 weekly in basic child support and $60 weekly for child care expenses.  Although the father had testified in the underlying proceeding that his current weekly income was $300, the Support Magistrate imputed income to him based on prior earnings, utilizing a weekly income of $700 in calculating the father’s child support obligation.  By a petition, the father sought a downward modification of the basic child support and the elimination of his child care contribution.  Following a hearing, the Support Magistrate dismissed the father’s modification petition.  The father filed objections to the Support Magistrate’s order.  The Family Court denied the father’s objections, and the father appealed from that order.

The Second Department found that the Family Court correctly denied the objections since the father did not establish a substantial change in circumstances warranting the modification (see Matter of Oelsner v. Heppler, 181 AD3d at 917).  The father did not establish a change in circumstances based on a reduction in income, as his income remained the same from the time of entry of the support order to the filing of his modification petition.  He also failed to establish that a change in circumstances warranted eliminating the imputation of income and recalculating his child support obligation based on his current income.  The father also failed to establish a substantial change in circumstances warranting the termination of his child care contribution.

 

Vilca v. Kim, 2019-01265

The parties were married in 2011 and have no children together.  The plaintiff commenced this action for a divorce and ancillary relief in May 2016.  The defendant initially retained an attorney to represent her, but she subsequently terminated the representation and proceeded to trial pro se.  The defendant also retained a different firm prior to the commencement of this action to pursue relief in the Family Court.  Following the trial, the defendant moved for an award of attorneys’ fees.  In an order, the lower court, in effect, granted the motion to the extent of awarding the defendant attorneys’ fees in the sum of $5,000.  The defendant appealed.

The Second Department, considering the financial circumstances of the parties, including the award of maintenance to the defendant and the division of the parties’ marital assets, found that the lower court providently exercised its discretion in awarding the defendant attorneys’ fees in the sum of $5,000.