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#94 Third Department Caselaw Round-Up for December 8, 2011, Part 9 of 12

February 27, 2012

79 Post 12-08-11, Part 9 Third Department December.pngIn this post, I set forth two cases which deal with issues that are encountered all the time in family court: multiple orders, and the possibility that each may need to be appealed; and the need for particularity of the pleadings in order to give adequate and proper notice to both the court and the your opponent as to the specific relief requested.

If you wish to preserve your right to appeal from an order, then you should file a notice of appeal with regard to each order you receive from a court. There are some exceptions to this rule, but it is an excellent rule of thumb.

Furthermore, if you want to have the court grant you a specific form of relief, then you simply must be very clear and precise, in your petition, as to what it is that you are complaining about, how it affects you, how it affects the child or children, and how you want the court to change the situation.

There are forty-five (45) decisions for this week and twenty-three (23) of those decisions are family law (or related) cases.

29-17 Post St. Lawrence County.png
Case #70
#510938
Revet v. Revet, ___ A.D.3d ___, 933 N.Y.S.2d 918
St. Lawrence Supreme - Main
Issues: Custody
Cited statutes: FCA Art. 6
Dismissed

This appeal is a bit odd insofar as it should probably have been consolidated with its companion, dealt with in the last blog post. I could understand if this were an appeal from a separate order, but, even then, a consolidation of the two (2) appeals would have seemed a better use of judicial resources.

In any event, because the Third Department notes that they just rendered a controlling decision in this very case, this appeal has been made moot.

However, the one thing I greatly admire about the trial attorney in this particular case is that he or she wasn't taking any chances, and they filed at least two (2) notices of appeal from the Supreme Court's decision. While it may seem redundant, in my opinion, I think it's a great idea for one simple reason: when in doubt, protect your client's appellate interests with a notice of appeal (or two or three ...).

What if the Third Department had deemed this case to contain two (2) disparate issues and only one of those issues was raised in a single appeal? Well, the obvious would have happened: only that issue raised on appeal would be the one heard be the Third Department. The client would have been completely out of luck on the other issue - since it was not preserved for appeal.

So, when in doubt, file notices (plural) of appeal. And this goes for multiple orders. Do not merely assume that one notice of appeal automatically includes all orders. Better practice is to file a notice of appeal with regard to each order.


Case #71
#511034
Miller v. Miller, ___ A.D.3d ___, 933 N.Y.S.2d 924
St. Lawrence Family - Potter
Issues: Custody
Cited statutes: CPLR ยง3013; 3026; FCA 165
Affirmed

An order granted the mother sole legal custody and sole physical custody of two children, with the father granted parenting time as the parties could agree. "Among other provisions, it further required that the children be properly supervised at all times and that neither parent smoke or allow a third party to smoke in a vehicle in which the children are passengers."

Thereafter, the father filed a petition alleging that the mother had violated the order "in that she failed to properly supervise and discipline the children, as she permitted the older child to be violent towards others and to smoke."

The family court dismissed the father's petition, "[f]inding that the petition lacked sufficient specificity to provide the mother with proper notice and failed to outline how the father's rights had been prejudiced."

The father appeals, claiming that, at the very least, he was entitled to a hearing.

The Third Department found that "[t]he generalized allegations of the subject petition, even [when] liberally construed, failed to provide the mother with notice of a particular event or violation such that she could prepare a defense." Furthermore, "the father failed to assert how the mother's alleged failings defeated, impaired, impeded or prejudiced his rights, as required to sustain a civil contempt finding."

This case is a perfect example of why, when litigants retain counsel or have counsel assigned to them, counsel should immediately review the sufficiency of the petition and, more likely than not, seek to amend the petition so that it is not dismissed on this ground.

Had this petition been better drafted or amended, it is highly likely that it would not have been dismissed on this ground - and that the father could have gotten the hearing he was seeking.


Caselaw Round-Up Score Card:

Affirmed: 44 (61.97%)
Decision Withheld: 2 (2.82%)
Dismissed: 6 (8.45%)
Modified: 7 (9.86%)
Reversed: 12 (16.90%)

Total: 71