#363 Third Department Caselaw Round-Up for April 26, 2012, Part 5 of 8

April 26, 2013

363 Post 04-26-12, Part 5 Third Department April.pngBoth cases hail from Madison County, a venue from which I rarely see appeals.

The first case involves extraordinary circumstances, something that has not reared its head in a while.

The second case involves apples and oranges. Don't confuse the apples (child support) with the oranges (good time allowance in jail).

363 Post-2 Madison County.pngCase #237
Carpenter v. Puglese
Madison Family-McDermott
Issues: Best Interests; Child Support; Custody; Domestic Violence; Extraordinary Circumstances; Persistent Neglect; Supervised Visitation
Cited statutes: FCA Art. 6

Once again, read the footnotes as they paint the picture you will need for the context of the decision. The soundtrack to footnote 1 should be the theme from "Deliverance". Or maybe "Tobacco Road". Also, check out footnote 2. Why the hell would a person file an appellate brief if they never bothered to file a notice of appeal? Bizarre.

This is another sad case where the parents would have been much better served by the regular and consistent use of birth control. The father and mother are the unmarried parents of fraternal twin boys. At the time of the proceeding, the father also had "four older children from four prior relationships" and the mother had another child from another relationship and was pregnant with her fourth child. Yay!

The twins, at five weeks old, were found by a DSS caseworker to be "living in what she described as deplorable, unsanitary and unsafe conditions". Are you ready for this? "Specifically, the parents' residence was littered with garbage, animal feces and the remnants of a cat's afterbirth" - THE REMNANTS OF A CAT'S AFTERBIRTH FER CHRISSAKES!!!!! - "had several broken windows and lacked a working stove, toilet and heating system". Hovel, thy name is home.

The mother's uncle and his girlfriend took custody of the twin boys on the consent of the mother. Ultimately, a series of petitions ensued, with the father seeking custody and the mother's uncle and his girlfriend seeking custody. Following a hearing, the court awarded custody of the twin boys to the mother's uncle and his girlfriend.

The father appealed.

The record is rife with examples of the father's unfitness as a parent, together with his persistent neglect of his infant sons. Prospectively, it's doubtful that either parent will ever get their acts together to be able to regain custody of their children. And that is very probably to the great advantage of their twin boys!

Case #238
Chafee v. Felker
Madison Family-DiStefano
Issues: Child Support; Jail; Willful Violations of Orders
Cited statutes: Correction Law ยง804-a; FCA Art. 4

This one is rather odd.

The father of a child was ordered to pay child support in the amount of $25.00 per week. Because the father failed to make these payments, he was remanded to jail for six months. Upon the father's release from jail, he continued to refuse to make these payments for another eight months. Because of the father's willful and continued violation of the support order, he was again remanded to jail, this time for 150 days "or until such time as he made a payment of $800.00".

For some unknown reason, the father appealed.

The father's sole argument on appeal was, bizarrely, that the family court erred in not addressing the issue of "whether he was entitled to a good time allowance ... while incarcerated". Um, what? So, what's going on here? Well, there's always this: "there is nothing in the court's order regarding a good time allowance because the issue of good time was not raised before the Family Court." D'oh!

But wait, there's less! The Third Department noted that the whole concept of a good time allowance would not even arise until after the father was incarcerated. Furthermore, a good time allowance is made administratively, "by the sheriff, superintendent, warden or another person in charge of the institution in which [the father] was incarcerated". Lastly, any challenge to an administrative denial of good time would need to be made via an Article 78 proceeding - not an appeal. Double d'oh!