JULY 20, 2022 DECISIONS

Matter of Jean-Baptiste v. Jean-Baptiste, 2021-07992

The Family Court properly denied the father’s objections to the Support Magistrate’s order.  Although the father is correct that the finding regarding his weekly income was not supported by evidence before the Support Magistrate, the Second Department nonetheless affirms since he failed to establish a prima facie case warranting a hearing for modification of support (see Matter of Camarda v. Charlot, 182 AD3d at 533-534).  Specifically, the father failed to allege or provide any evidence that after he lost work due to the aftermath of the COVID-19 pandemic, he engaged in “diligent attempts to secure employment commensurate with his…education, ability, and experience” (Matter of Evans v. White, 173 AD3d at 865 [internal quotation marks omitted]).  Nor did he make allegations or provide evidence to demonstrate that his knee injury prevented him from working (see Conway v. Conway, 79 AD3d at 965).

Accepting the facts as alleged in the father’s petition as true and providing him with the benefit of every favorable inference, he failed to sufficiently allege a substantial change in circumstances that would warrant a downward modification (see Matter of Gerety v. Gerety, 203 AD3d at 829-830).  The Family Court properly denied the father’s objections to the Support Magistrate’s order dismissing his petition without a hearing (see Matter of Camarda v. Charlot, 182 AD3d at 533-534).

 

Matter of Touchet v. Horstman, 2021-05281

In a 2013 order, a California court made an initial custody determination as to the parties’ child.  The order awarded the parties joint legal custody and awarded the mother sole physical custody, with parental access to the father.  It also granted the mother permission to relocate with the child to New York.  In 2021, after the mother relocated, and while the father was residing in California, the father petitioned the California court to modify the November 2013 custody order.  The mother then petitioned in the Family Court, Suffolk County, seeking to enforce the November 2013 custody order, and subsequently filed a petition in that court, seeking to modify the November 2013 custody order so as to provide that the father was to have parental access in New York.  In an April 2021 order, the California court awarded the father temporary physical custody of the child.  In a June 21, 2021 order, the Family Court, after communicating with the California court, dismissed the mother’s petitions based on lack of subject matter jurisdiction.  The mother appealed.

The Second Department found that the Family Court correctly determined that, given the pending proceedings in California, it was required to communicate with the California court (see Domestic Relations Law § 76-e, 77-f).  Contrary to the mother’s argument, the Family Court properly informed the parties of the communication and made a sufficient record of it (see Matter of Montanez v. Tompkinson, 167 AD3d 616).  However, after providing that information to the parties, who had not participated in the communication, the court immediately announced its decision on the issue of jurisdiction, without allowing the parties to present facts and legal arguments.  This constituted a failure to comply with the requirements of Domestic Relations Law § 75-i(2), and, under the circumstances of this case, requires reversal (see Matter of Vashon H. v. Bret I., 191 AD3d at 1122; Matter of Hiles v. Hiles, 165 AD3d 1394, 1396; Matter of Beyer v. Hofmann, 161 AD3d 1536, 1537; Matter of Frankel v. Frankel, 127 AD3d at 1188; Matter of Andrews v. Catanzano, 44 AD3d 1109, 1110-1111).  The matter is remanded.

 

Pettei v. Pettei, 2021-05557

The parties, who are the parents of one child, were divorced by a judgment dated December 15, 2017.  The judgment incorporated, but did not merge, the parties’ stipulation of settlement, pursuant to which the parties shared joint legal custody of the child, with residential custody to the plaintiff and certain parental access to the defendant.  In May 2019, the defendant moved, among other things, to modify the judgment so as to award him sole legal and residential custody.  Following a hearing, the lower court, in a June 2021 order, in effect, granted that branch of the defendant’s motion which was to modify the judgment so as to award him sole legal and residential custody, and directed that the plaintiff’s parental access be supervised.  The plaintiff appealed.

The Second Department found that the lower court’s determination has a sound and substantial basis in the record.  The hearing evidence established that the plaintiff suffered a mental breakdown and was subjected to involuntary psychiatric hospitalizations for 16 days in June 2019, and for 47 consecutive days later in 2019.  The court properly concluded that the plaintiff’s condition, “along with her lack of insight into her mental health issues and the impact of those issues on the parties’ child, constituted a change in circumstances that warranted modifying the custody arrangement so as to award the defendant sole legal and residential custody, and to limit the plaintiff to supervised parental access” (see Matter of Justice F. [Jessica V.], 192 AD3d 1025).  The record also fails to support the plaintiff’s argument that the court failed to accord due consideration to the child’s wishes or to the original custody arrangement agreed to by the parties.

The plaintiff’s contention that the lower court erred in failing to order a forensic evaluation of her mental health is without merit.  She did not request such evaluation (see Matter of Jennings v. Small, 59 AD3d 546).  In any event, in light of the plaintiff’s extensive psychiatric history, which was before the court, such an evaluation was not necessary in order to make its determination (see Matter of Jose v. Guilford, 188 AD3d 1209, 1211; Matter of Jennings v. Small, 59 AD3d at 546).  The plaintiff further argued that a new hearing should be granted due to specific alleged misconduct by the defendant’s counsel during his questioning of the plaintiff’s witnesses. The Second Department determined that the defendant’s counsel did not engage in any misconduct.  The order is affirmed.