March 4, 2020 Decisions

Family Court properly held consent of incarcerated father was not required for adoption of newborn where he failed to assert his ability and willingness to assume custody
Matter of O. (Anonymous), Baby Boy, 2018-14246; Matter of O. (Anonymous), Baby Boy, 2019-02546

The biological father was incarcerated during the birth mother’s pregnancy, and the adoptive parents were both present at the hospital for the child’s birth and took custody of the child the following day in Pennsylvania. Following approval from the Pennsylvania Interstate Compact on the Placement of Children office, the adoptive parents brought the child to their New York home and filed for adoption in the Family Court, Suffolk County. After a hearing, the Family Court determined that the biological father’s consent was not required and determined that the adoption was in the best interests of the child. The biological father appealed.

The biological father failed to meet his burden of establishing that he asserted his interest promptly and manifested “his ability and willingness to assume custody during the six months prior to the child’s placement” (Matter of Seasia D., 10 NY3d 879,880, quoting Matter of Raquel Marie X., 76 NY2d 387, 402; see Domestic Relations Law § 111[1][e]). The biological father had limited contact with the birth mother and did not provide her with any assistance during her pregnancy. “The adoptive parents demonstrated the ability to ‘maintain continuous and stable relationships and employment, and the record demonstrated that they are better suited to meet the day-to-day and life-long physical, emotional, and material needs of the child’” (Matter of Anya W. [Darryl W.—Chalika W.-R.], 156 AD3d at 710).

The biological father’s constitutional challenge to Domestic Relations Law § 111(1)(e) is not proper since it was first raised on appeal (see Clement v. Durban, 147 AD3d 39, 47, affd 32 NY3d 337).

 

Family Court properly held father’s failure to pay child support was willful where he failed to provide medical evidence to support allegation that he was unable to work
Matter of Atkinson v. Atkinson, 2019-02545

Appeal from an Order of the Family Court which determined that the father’s failure to pay child support was willful and committed him to the Orange County Jail for a period of 30 days unless he paid the purge amount. The father appealed from the order of commitment.

The appeal from the order of commitment must be dismissed as academic since the period of incarceration has expired (see Matter of Stradford v. Blake, 141 AD3d 725). However, the appeal from so much of the order of commitment which confirmed the determination that the father was in willful violation of the order of child support is not academic.

The Appellate Division agreed with the Family Court’s determination that the father willfully failed to pay his child support obligation (see Matter of Schad v. Schad, 158 AD3d 705, 706). The father failed to establish credible evidence of his inability to comply with his child support obligation (see Family Ct Act § 455[5]; Matter of Olivari v. Bianco, 161 AD3d 983, 984). Specifically, the father failed to provide sufficient medical evidence in support of his allegation that he was unable to work due to medical impairments, “despite having received an adjournment of the hearing to secure such evidence (see Matter of Brewster v. Davidson, 173 AD3d 1176, 1177; Matter of Smith v. Jeffers, 110 AD3d 904, 905).

 

Imputation of income supported by the record; Attorney’s fees required for willful violation of support order
Matter of Grace v. Amabile, 2018-11839

Appeal from an Order of the Family Court, Suffolk County, which denied the father’s objections to an order of the Support Magistrate which, after a hearing, granted the mother’s petition for upward modification, found that the father was in willful violation of the prior order of support for failing to reimburse the mother for his share of the cost of summer camp and certain school equipment and supplies, directed the entry of a money judgment in favor of the mother and against the father, and granted the mother’s application for an award of counsel fees.

The Order is affirmed. The Support Magistrate’s decision to impute the parties’ income was based primarily on credibility determinations and is supported by the record, therefore, it will not be disturbed (see Matter of Gebaide v. McGoldrick, 74 AD3d 966; Matter of Kennedy v. Ventimiglia, 73 AD3d 1066). Further, since the father failed to establish credible evidence that his failure to pay his child support obligation in accordance with the court order was not willful (see Matter of Bea v. Winslow, 162 AD3d at 764-765).

Lastly, since the father willfully violated his child support obligation, the Family Court was required pursuant to the Family Court Act § 438(b) to award counsel fees to the mother and “may also award counsel fees at any stage of the proceeding to modify or enforce an order” (see Matter of Yuen v. Sindhwani, 137 AD3d 1155; see Family Ct Act § 438[a]). The Support Magistrate’s determination to award $13,200 in counsel fees to the mother was reasonable and thus, will not be disturbed (see Matter of Villanti v. Grucci, 111 AD3d 842).

 

Family Court properly denied objections to order of support, imputation of income supported by the record
Matter of Pierre v. Hernandez, 2019-02704

The mother filed a petition seeking child support. Following a hearing, the Support Magistrate found that the father failed to substantiate his income and imputed income to him. The Support Magistrate granted the mother’s petition and directed the father to pay child support in the sum of $738 per month. The father filed objections to the order and the Family Court denied them. The father appealed.

“The Support Magistrate is not bound by a party’s version of his or her finances or financial documentation” (Matter of Barmoha v. Eisayev, 146 AD3d 946, 946; see Matter of McVea v. McVea, 176 AD3d 822, 822). The Support Magistrate’s determination to impute income to the father is supported by the record. Since the father’s allegations that his monthly household expenses do not exceed the household’s total monthly income was not supported by any evidence, the Second Department agrees with the Family Court’s determination to decline to consider those assertations in support of the father’s objections (see Matter of Brandon v. Lopez, 174 AD3d 706, 707).

The father’s remaining contentions are “not properly before this Court, as they were not raised in his objections to the Support Magistrate’s order” (see Matter of Heintzman v. Heintzman, 157 AD3d 682, 690; Matter of Hall v. Pancho, 149 AD3d 735, 738-739; Matter of Feng Lucy Luo v. Yang, 89 AD3d 946, 947).

 

Order of commitment affirmed; father willfully violated support order
Matter of Tamborello v. Tamborello, 2019-07762

In Family Court proceedings, the father’s failure to pay his child support obligation resulted in the mother filing several violation petitions. By an order of disposition, the father was directed to pay the sum of $1,409.38 per month toward the arrears in addition to the court-ordered monthly child support and maintenance payments.

In March 2019, the mother filed this instant petition alleging that the father violated the order of disposition. The Support Magistrate determined, after a hearing, that the father had willfully failed to comply with his support and maintenance obligations. In an order of commitment, the Family Court confirmed the Support Magistrate’s determination, and committed the father to the custody of the Nassau County Jail for a period of 180 days unless he paid the purge amount of $220,560.57.

First, the father’s appeal from so much of the order of commitment as challenged the length of his commitment and alleged the excessiveness of the purge amount must be dismissed as academic since the incarceration period has expired (see Matter of Detore v. Detore, 173 AD3d 1181, 1182; Matter of Schad v. Schad, 158 AD3d 705, 706). The appeal from so much of the order of commitment as confirmed the determination of the Support Magistrate that the father willfully violated the order of disposition is not academic and he failed to satisfy the burden of establishing competent evidence that his failure to pay child support and maintenance in accordance with the court order was not willful (see Matter of Powers v. Powers, 86 NY2d 63, 69). Therefore, the Second Department will not disturb the Family Court’s determination to confirm the Support Magistrate’s finding that the father willfully violated the order of disposition (see Matter of Cameron v. King, 160 AD3d at 947; Matter of Gorsky v. Kessler, 79 AD3d 746, 746-747).

 

Family Court properly held award of custody to grandmother over father was in the child’s best interests; prolonged separation of the father and child constitutes extraordinary circumstances to confer standing
Matter of Bruen v. Merla-Profenna, 2018-15082; Matter of Merla-Profenna v. Bruen, 2018-15082

The subject child resided with the grandmother since June 2011. A neglect proceeding was commenced against the child’s mother in January 2013. The father subsequently filed a petition for custody of the child, which was dismissed without prejudice since the father did not have a stable living environment or any means to support the child. In February 2015, the father filed this instant custody petition, and the grandmother filed a cross petition for custody of the child. After a hearing, the Family Court determined that the grandmother established extraordinary circumstances necessary to warrant an inquiry into her ability to gain custody of the child. Following a further hearing on the child’s best interests, the court awarded custody to the grandmother, with specific parental access to the father. The father appealed.

On this appeal, it was found that there was prolonged separation of the father and the child for at least 24 continuous months during which the father voluntarily relinquished care of the child and the child resided in the house with the petitioner (see Domestic Relations Law § 72[2][b]; Matter of Suarez v. Williams, 26 NY3d at 444). “The ‘reality of the family’s situation’ was that the grandmother cared for the child since June 2011, without financial contribution from the father, despite the mother living in the grandmother’s home and having custody of the child for a period of time (Matter of Suarez v. Williams, 26 NY3d at 445; cf. Matter of Schmitt v. Troche, 155 AD3d 739, 741). Further, the father did not file his petition until more than two years after the mother left the grandmother’s residence and the grandmother obtained temporary custody of the child. The Second Department found that the lower court’s determination that awarding custody of the child to the grandmother was in the child’s best interest is supported in the record and will not be disturbed (see Eschbach v. Eschbach, 56 NY2d 167, 171).

 

Father failed to allege sufficient change in circumstances to warrant hearing on custody modification
Matter of Abayomi v. Guevara, 2019-03498

In a custody proceeding, the father moved to modify the parties’ custody arrangement so as to award him physical custody of, and final decision-making authority with respect to the subject child. The Supreme Court denied the father’s motion without a hearing. The father appealed.

The Order is affirmed. The father failed to allege a sufficient change in circumstances to establish his entitlement to a hearing.