#362 Third Department Caselaw Round-Up for April 26, 2012, Part 4 of 8

April 26, 2013

362 Post 04-26-12, Part 4 Third Department April.pngThe first case is a classic example of what "change in circumstances" means and why it is required for a petition in family court to withstand a motion for dismissal. It also is interesting insofar as it may have created new law.

The second case is an example of the need to both appear for support proceedings and to produce financial disclosure.

362 Post-2 Delaware County.pngCase #235
Idlefonso v. Booker
Delaware Family-Becker
Issues: Anger Management; Best Interests; Change in Circumstances; Credibility; Custody; Domestic Violence; Evidence; Jail; Mental Illness; Visitation; Witnesses
Cited statutes: FCA Art. 6

I often feel that the Third Department considers too little on an appeal. Here's a case where they may have considered too much.

The parties were unmarried and had two children. The mother filed for sole legal custody of both children and was awarded this relief upon the father's failure to appear in court. About an hour later, the father appeared in court and, upon learning what had happened, he filed a petition seeking to modify the order of custody made only an hour before.

After a hearing, the court dismissed the father's petition for failing to demonstrate a change in circumstances.

The father appealed.

You really can't make this stuff up, can you? This case is so extreme, that it perfectly illustrates the concept of "change in circumstances". Remember, seeking a change in custody is a two-part process. The first part is in demonstrating a "change in circumstances" and then - only upon doing so - may you proceed to demonstrating "best interests". Here, the father was forced to show that IN THE COURSE OF A SINGLE HOUR, something occurred in the lives of the parties and children so as to create a change in circumstances. Short of the mother having just been pulled over and arrested for a crime, I am hard-pressed to figure out how the father could hope to demonstrate a change in circumstances. And this is no doubt how the trial court felt as well.

The better option for the father - given the fact that only A SINGLE HOUR had passed since the order seeking to be modified was issued - was to have moved to vacate the order on the father's default judgment. However, the Third Department notes that even had the father done this, the record illustrates that the trial court inquired as to the father's failure to appear and found his excuse wanting.

While the father contended that the court failed to award him any visitation with his children, HIS OWN PETITION FAILED TO ASK FOR THIS RELIEF! You don't get if you don't ask. However, even granting the father the benefit of liberality of the pleading, the court found that the father's serious and untreated mental health issues and anger management problems - among other things - was enough for the court to find that it was "not in these children's best interests to have any contact with him whatsoever". Furthermore, there was testimony as to the father's animosity toward the mother with "domestic violence incidents during which the children were present - some of which led to the father's conviction of various crimes and his incarceration".

So, the Third Department has made hay out of this appeal. Remember: the father never moved to vacate the order - but the Third Department states that even if he had, and the court had denied the motion, the Third Department would have affirmed an order denying the motion. Okay. Remember: the father asked only for custody but the Third Department states that even if the father had asked for visitation, it would have affirmed an order denying the father visitation.

However, what bothers me the most is the penultimate sentence of this decision: "In our view, the evidence was sufficient to establish exceptional circumstances, and we discern no abuse of Family Court's discretion in determining that visitation with the father would be inimical to the children's well-being." First off, what the hell does that even mean!? For me, the strong language strikes an ominous tone since it seems to be extraneous to the decision. Remember: there was no need for the Third Department to make these far-reaching conclusions, given the circumstances! All the Third Department had to do was write a shorter decision affirming the trial court's order. Instead, it went much further than that.

So, why would the Third Department see fit to include such a strange sentence? I sense that the Third Department has just created new law by making it necessary for potential litigants to address their various issues - despite the fact that they have never been court-ordered to do so - as a prerequisite for the filing of subsequent petitions, unless they want those subsequent petitions to be summarily dismissed. I hope I am wrong about this, but that is the inference that I draw from this decision.

My hope is that the father in this matter was a pro se litigant because if the father was represented by counsel, the attorney did a HUGE disservice to his client by proceeding to a hearing on this matter, given all of the circumstances. There was simply no way to win this case at the trial level. And, by appealing the matter, the father invited the appellate division to slap him down hard - as it did.

My fear is there is substantial adverse precedential value in this decision, especially as it pertains to litigants who file defective petitions and then are foolish enough to proceed to trial on them anyway, BEFORE a motion is made to dismiss the petition. It is effectively walking into the lion's den. Clearly, the record here was so adverse to the father that the trial court's decision and order (to say nothing of the appellate decision!) set a high threshold to overcome if and when the court takes judicial notice of this decision in future litigation (and you just know that it's going to). Now, in any future litigation, the father will likely be compelled to prove that he has substantively addressed his alleged mental health issues, his anger management issues, and other problems as well - all despite the fact that he has never been court-ordered to do so.

It will be very interesting to see what cases cite this decision (particularly that penultimate sentence!) in the future, and whether or not the Third Department has in fact made new law here.

The practical conclusion one should nevertheless take from this case is obvious: sometimes, it is often better just to withdraw your petition, wait a while, and fight another day when your chances have improved. Otherwise, you could turn out to be your own worst enemy.

362 Post-3 Greene County.pngCase #236
Malcolm v. Trupiano
Greene Family-Pulver
Issues: Child Support; Modification of Child Support
Cited statutes: FCA Art. 4

The parties are the parents of a single child. The mother is the custodian of the child. The family court initially determined the respondent-father's child support to be $813.00 per month. However, "the court then determined that this amount would be unjust or inappropriate due to the petitioner[-mother]'s receipt, as representative payee, of $1,008.00 monthly from the Social Security Administration [SSA] on behalf of the child as a result of [the] respondent[-father]'s entitlement to Social Security benefits". As a result, the court determined the father's child support obligation to be $540.15 per month instead of the $813.00 per month.

The mother thereafter filed a petition for an upward modification of child support, alleging that the father "had contacted the SSA requesting that he be named the child's representative payee, [that] the SSA made the change, and [that] the child's Social Security check had been redirected to [the father]".

Now, for the good part. After the mother filed her petition, there were two court appearances - "at which no sworn testimony was taken and no documents were received into evidence". Hmmm; that doesn't sound good. Nevertheless, the support magistrate granted the mother's petition, increasing the father's child support obligation to $1,300.00 per month (!!!). The father filed objections with the court, which the court denied.

The father, unsurprisingly, appealed.

The support magistrate forgot something absolutely essential with regard to proceedings filed under Article 4: "there shall be compulsory disclosure by both parties of their respective financial states". The problem here is that "the record does not indicate that disclosure of any of the statutorily required financial information occurred." To make matters worse, the support magistrate failed to "calculate [the father's] child support obligation in conformity with the requirements of the Child Support Standards Act".

Thus, the matter is reversed and remitted back to family court for further proceedings.