JUNE 15, 2022 DECISIONS

Matter of Hogan v. Smith, 2021-05856

The parties have joint physical and legal custody.  In March, 2021, the the father petitioned to modify the order seeking final decision-making authority regarding the children’s education.  A virtual appearance was held on March 23, 2021, at which the Family Court, noting the “history” of the case, directed that the parties be present in court on May 6, 2021, for “an in-person appearance.”  The mother failed to appear.  On that date, the father made an oral application to amend his petition to also seek sole custody and modification of the parental access provisions of their custody and visitation order.  In a final order of custody and visitation dated May 6, 2021, entered upon the mother’s failure to appear, the court awarded the father sole custody with certain parental access to the mother.  Subsequently, by notice of motion dated May 24, 2021, the mother moved to vacate the final order of custody and visitation.  In a June 30, 2021 order, the court denied the mother’s motion.  The mother appealed.

The order was reversed and the Second Department granted the mother’s motion to vacate the final order of custody and visitation, finding that the Family Court erred in granting the father’s oral application to grant him relief which “far exceeded that requested in his petition,” without first hearing any testimony or other admissible evidence to determine whether modification was required in the best interests of the children.  Given the policy favoring determinations on the merits in child custody cases, the court improvidently exercised its discretion in denying the mother’s motion to vacate the final order of custody and visitation (see Matter of Williams v. Worthington, 194 AD3d 825, 826; Genzone v. Genzone, 146 AD3d 752, 753; Matter of Brice v. Lee, 134 AD3d at 1107; Matter of Cummings v. Rosoff, 101 AD3d at 714; Matter of Johnson v. Lee, 89 AD3d at 733).

 

Matter of Sorscher v. Auerbach, 2021-09055

In a child support proceeding in Family Court, the the Support Magistrate imputed income to the Father based on her own estimate of the value of the father’s free housing and the mother’s unsubstantiated estimate of the value of the father’s free vehicle use.  The Appellate Division agreed with the Support Magistrate’s determination to impute an income to the father based upon his housing and vehicle use (see Matter of Poulos v. Chachere, 163 AD3d 679, 681; Matter of Recco v. Turbak, 124 AD3d 900, 901; Baumgardner v. Baumgardner, 98 AD3d 929, 931; Matter of Ambrose v. Felice, 45 AD3d 581, 583; M.L.M. v. R.G.M., 63 Misc 3d 1211[A], 2019 NY Slip Op 50466[U], *4 [Sup Ct, Westchester County]; B.K. v J.N., 48 Misc 3d 1214[A], 2015 NY Slip Op 51124, *15-16 [Sup Ct, Richmond County]), but the Family Court  Judge should have remanded the matter to the Support Magistrate determine the appropriate value, if any, to be imputed to the father for such free uses.

 

Safir v. Safir, 2021-02616

In an action for divorce, the defendant appealed a March, 2021 pendente lite Order.  Based on the parties’ lifestyle during the marriage, the cost of maintaining the marital residence, the plaintiff’s absence from the work force, and the defendant’s payment of all marital expenses during the marriage, the court directed the defendant to maintain the status quo by continuing to pay, pendente lite: “100% of the carrying charges for the marital residence, including the costs of the real estate taxes, homeowner’s insurance, homeowner’s association dues, and repairs associated with that property; 100% of the carrying charges, maintenance costs, and other expenses attributable to the Florida property; and 74% of the cost of employing two housekeepers.”  In effect, the court imputed income to the defendant, finding that he voluntarily reduced his income by switching to part-time employment prior to the commencement of this action, and used the plaintiff’s base salary as her annual gross income.

The defendant failed to demonstrate any exigent circumstances warranting a modification of such awards, and “any perceived inequity can be remedied by a speedy trial, at which the parties’ financial circumstances can be fully explored” (see Evelyn v. Evelyn, 168 AD3d 911, 912-913; Noy v. Noy, 160 AD3d 885, 886-887; Caputo v. Caputo, 152 AD3d 643, 645).

 

O’Mahoney v. O’Mahoney, 2021-00578

The lower court erred in denying, without a hearing, that branch of the defendant’s motion which was to modify the custody provisions in the judgment.  The defendant claimed that although the plaintiff had been awarded residential custody, the parties and the children continued to live together as a family in the marital residence for nearly four years after the divorce and that the defendant had been the children’s primary caregiver (see Matter of Errante v. Murry, 172 AD3d 711, 713; Matter of Eddington v. McCabe, 98 AD3d 613, 614).  The defendant also brought forth evidence that the plaintiff interfered with her right to joint legal custody of the children and her “reasonable rights of visitation” as provided for in the judgment (see Matter of Williams v. Norfleet, 140 AD3d at 1079).  Both parties also each raised specific, contested claims as to the other’s fitness to serve as the custodial parent (see Trazzera v. Trazzera, 199 AD3d at 858).  The defendant made an evidentiary showing of changed circumstances sufficient to warrant a change of custody to protect the best interests of the children, and a hearing was necessary to determine whether the custody provisions in the judgment should be modified.  Given the ages of the children and the highly contested allegations regarding the parties’ parental fitness, upon remittitur, the trial court should appoint an attorney for the children.

 

Matter of Santman v. Schonfeldt, 2021-06616

In a Family Court support violation proceeding, the Support Magistrate found that the father’s failure to pay child support was willful, directed the father to pay the mother child support arrears in the sum of $20,204 at a rate of $250 monthly, and denied the mother’s request to commit the father for a period of incarceration.  In an order, the Family Court denied the mother’s objections to the order of disposition.  The mother appealed.

Contrary to the mother’s argument, the Support Magistrate’s failure to explain in the order of disposition the reasoning for her determination to deny the mother’s request for a purge payment or weekend incarceration did not constitute a violation of Family Court Act § 454(4).  There was compliance with the statute by the Support Magistrate setting forth the facts upon which the determination was made (see Matter of Sylvester v. Goffe, 177 AD3d 978).  Any alleged failure to specifically address the mother’s requests does not amount to a statutory violation requiring remand for further proceedings (see Matter of Eve S.P. v. Steven N.S., 177 AD3d 425; cf. Lerner v. Lerner, 168 AD3d 736).

The Support Magistrate providently exercised her discretion in declining to accept into evidence a second updated statement of arrears (see Family Ct. Act § 459), which statement was offered after the mother had rested her case (see CPLR 4011; Feldsberg v. Nitschke, 49 NY2d 636, 643).  The Support Magistrate also did not err in setting the schedule for the father’s payment of child support arrears based on evidence at the hearing of the father’s income, expenses, and payment history (see Gorelik v. Gorelik, 85 AD3d 856, 859).  The determination should not be disturbed.

 

Matter of Patten v. Patten, 2021-02930

The parties were married and have two children together.  In 2016, both parties petitioned for sole legal and physical custody of the children.  Following a hearing, the Family Court granted that branch of the mother’s petition which was for sole physical custody, denied that branch of the father’s petition which was for sole physical custody, awarded the parties joint legal custody, with final decision-making authority to the mother, and awarded parental access to the father.  The father appealed.

The Second Department found that the determination to award sole physical custody and final decision-making authority to the mother is supported by a sound and substantial basis in the record and will not be disturbed.  The record establishes that, although both parties are loving and fit parents, the mother is better able to provide for the children’s academic needs and overall well-being.  The evidence presented at the hearing established that the mother was more willing than the father to assure meaningful contact between the children and the noncustodial parent (see Matter of Tori v. Tori, 67 AD3d 1021, 1022; Allain v. Allain, 35 AD3d 513, 514).

The Family Court did not improperly fail to consider the effect of domestic violence upon the best interests of the children.  The court was in the best position to observe and listen to the witnesses firsthand and failed to credit the father’s testimony concerning acts of domestic violence by the mother, and on this record, the Second Department did not see a reason to disturb that credibility determination (see Matter of Huaring v. Camargo, 138 AD3d 993, 993-994; Matter of Frankiv v. Kalitka, 105 AD3d 1045, 1046).  Also, the father’s argument that the court considered his alleged infidelities in making its determination with respect to the issue of custody is without merit since the court’s order only mentioned the alleged infidelities while explaining the marital breakdown.  Further, the fact that on a few occasions, the mother might have stayed out overnight is not relevant to the issue of custody.  “There was no showing that this alleged behavior affected the mother’s relationship with the children or that it had an adverse effect on the children’s welfare.”