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#276 Third Department Caselaw Round-Up for January 12, 2012, Part 7 of 14

135 Post 01-12-12, Part 7 Third Department January.pngBefore we move into February, why not another caselaw round-up? There are literally hundreds more of these cases to get to before I can start yammering on about 2013 caselaw. There are also some interesting changes to the law in 2013, which I hope I will be able to get to at some point. For now, let’s get back to finishing up January 2012.

29-27 Post Delaware County.pngCase #114 #512754
Maggiore v. Maggiore, ___ A.D.3d ___, ___ N.Y.S.2d ___ Delaware Supreme – Peckham Issues: Child Support; Divorce; Equitable Distribution; Orders of Protection; Spousal Support; Wasteful Dissipation Cited statutes: DRL §236 Dismissed & Affirmed

The defendant-husband appealed an order and a judgment from the Supreme Court in an action for divorce, claiming that the court had abused its discretion.

The couple had been married for about twelve years, and had two children, when the husband commenced a divorce action then discontinued it. The wife then commenced a new action for divorce and the court issued mutual orders of protection as well as an order that the husband continue paying the mortgage and that he keep his wife on his health insurance.

And, because the husband is apparently a defiant prick, he thereafter stopped all mortgage payments (resulting in a foreclosure proceeding), and he thereafter removed his wife from his health insurance at a time when she was recovering from back surgery. A real peach, huh? Oh, but wait, it gets much better.

To avoid foreclosure on the marital residence, the court permitted the husband to withdraw some of his retirement funds – which he then exhausted for his personal expenses! And that protective order? Yeah, true to form, the husband violated that, too, resulting in his being indicted and pleading guilty to criminal contempt in the second degree. And this is all before the trial occurs! Some people just do not get it.

The parties stipulated to grounds and the trial went forward with regard to the issues of child support, equitable distribution, and spousal support. The court found that the husband had engaged in wasteful dissipation of the marital assets and awarded the wife the (now worthless) marital residence, her salon business, and a distributive award, together with child support of $182.00 per week and spousal support of $250.00 per week over six (6) years.

On appeal the Third Department told the husband to pound salt. It further found that the husband had allowed marital vehicles to become repossessed and a judgment to be entered on unpaid marital debt. The court found ample reason to affirm the trial court’s findings.

And, for “score card” purposes, we will say that this one was affirmed.

29-12 Post Essex County.pngCase #115 #509988 Matter of Burton C., ___ A.D.3d ___, ___ N.Y.S.2d ___ Essex Family – Lawliss Issues: Best Interests; Clear and Convincing Evidence; Mental Illness; Neglect; Permanent Neglect; Psychological Evaluations; Sex Offenders; Termination of Parental Rights; Witnesses Cited statutes: SSL §384-b Affirmed

And now, a heartbreaking case. These are tough to litigate because they can be so incredibly emotional. Terminating parental rights is hard enough, but doing so to a mentally ill person (almost always a mother) who does not fully understand why her babies are being taken away, is the hardest. These cases leave me emotionally spent.

In 2007, the mother’s two sons were found to be neglected by her and they were placed in the care and custody of DSS. In 2010, DSS petitioned to terminate the mother’s parental rights to the children, based on the grounds of mental illness and permanent neglect. A trial followed and the mother’s parental rights were terminated.

The mother appealed.

The trial elicited detailed reports and witness testimony with regard to the inadequacy of the mother as a parent to her two sons. A psychological evaluation of the mother, among other tests, revealed that the mother’s mental illness was so extensive that she suffered from borderline intellectual functioning and severe borderline personality disorder. Her failings, together with her sons’ developmental disabilities, meant that she was not – and would likely never be – an appropriate parental resource for these children. Most telling and most dangerous of all, there was ample documentation at the trial that the mother placed her own needs ahead of the best interests of her sons by engaging in relationships with known sex offenders.

These sorts of cases, by their very nature, have to be tried. And, sometimes, the respondent-parent needs to have a guardian ad litem appointed to represent them, in the event that their mental illness is too severe for them to function properly. And, even after they have been tried, these sorts of cases are almost always appealed, if only to insure the integrity of the entire process.

These cases are bears to litigate – especially if you are the attorney for DSS – as it entails potentially hundreds of hours of preparation of witnesses and documentary evidence. Also, depending upon the number of children involved, the number of parents involved, and the extent of the mental illness or permanent neglect, these trials can easily stretch from days into weeks.

Caselaw Round-Up Score Card:

Affirmed: 76 (66.09%)
Decision Withheld: 6 (5.22%)
Dismissed: 8 (6.96%)
Modified: 9 (7.83%)
Reversed: 16 (13.91%)

Total: 115