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#358 Third Department Caselaw Round-Up for April 26, 2012, Part 2 of 8

358 Post 04-26-12, Part 2 Third Department April.pngThe first case concerns the need for the trial court to make specific findings concerning the best interests of the child, without which a decision on appeal is reversed and remitted back to the court. The second case is the seldom seen appeal of a juvenile delinquency matter.

What these two appeals teach us is this: never forget that the CPLR (Civil Practice Law and Rules) always always always applies in family court unless the Family Court Act or the Uniform Rules of Court state otherwise. Once again, as I keep stating, every attorney practicing within this state should regularly read David Siegel’s magnum opus, “New York Practice”, now in its fifth edition.

Also, this is the first time that I’ve seen the same judge reversed twice in the same week, and over rudimentary violations of the CPLR no less.

358 Post-2 Broome County.pngCase #231 #512672
Martin v. Mills
Broome Family-Connerton Issues: Alcohol Abuse; Best Interests; Change in Circumstances; Credibility; Custody; Domestic Violence; Lincoln Hearing; Visitation Cited statutes: CPLR §4213(b); FCA Art. 6, §1034 REVERSED

The parties had a son together though they never married. They separated after the child was born and both petitioned for custody. A 1034 investigation resulted in an indicated report with regard to the mother driving while intoxicated with the child in her car. The mother was ordered to undergo an alcohol evaluation. Thereafter, the parties consented to joint legal custody with primary physical custody granted to the mother.

Some years later, the father filed a petition for custody as a result of the mother’s chronic alcohol abuse and domestic violence in her home concerning her boyfriend. After a hearing and a Lincoln hearing, the court granted the father primary physical custody.

The mother appealed.

The trial court failed to do two things with regard to its findings in its decision. First, it failed to set forth the change in circumstances that would allow the court to proceed to a best interests determination. Second, it altogether failed to set forth any findings with regard to the best interests of the child. My guess was that this was the result of either sloppy lawyering or overwork on the part of the court’s law clerk. You almost never see these mistakes because they are obvious (or should be) to the attorney (or judge) drafting the decision.

While the Third Department has plenary power to ascertain a change in circumstances in a given case, the caselaw nonetheless requires the trial court to consider a variety of factors in making a best interests determination and the law (specifically CPLR §4213(b)) requires the trial court to set forth what those findings are. Because the trial court did not do this, the Third Department was unable to decipher, from the record on appeal, what those best interests might be.

In any event, there is near certainty (given the facts of the case) that the mother would have lost this appeal had the requisite finding of best interests have been set forth by the trial court.

Appellate counsel here was most astute insofar as this decision was reversed thanks entirely to a single and otherwise obscure sentence found deep within Article 42 of the CPLR (“The decision of the court may be oral or in writing and shall state the facts it deems essential.”). It all came down to those two underlined words. And shall. Very impressive work!

Case #232 #513621
In the Matter of Lydia DD.
Broome Family-Connerton Issues: Juvenile Delinquency Cited statutes: CPLR §2103, 3217; FCA §165, Art. 3; 22 NYCRR 205.11 REVERSED

This case involves a misreading of both the CPLR and the FCA.

The county attorney filed a juvenile delinquency petition with regard to “acts which, if committed by an adult, would constitute the crime of grand larceny in the third degree.” The child’s attorney moved to dismiss the petition based on it being “fatally insufficient on its face.” In response, the county attorney faxed a letter to the child’s attorney, and to family court, indicating that the petition would be withdrawn.

Oddly, and in clear contravention of both the CPLR and the FCA, the family court “issued an order deeming both the petition and [the child’s attorney’s] motion withdrawn and dismissed, without prejudice.” Huh? That sure doesn’t sound right.

The child’s attorney must have thought it odd as well because the child’s attorney then “immediately wrote to the court that the motion to dismiss had not been withdrawn and that he would not consent to dismissal of the petition unless it was with prejudice.” Excellent lawyering. So, what does the family court do? The court then “amended its order by denying [the child’s attorney’s] motion to dismiss, without prejudice, as moot.”

Unsurprisingly, the child’s attorney appeals the amended order.

What’s going on here? The county attorney’s letter must be viewed as a motion for a voluntary discontinuance. However, because it was not properly served, the court was without any jurisdiction to grant the motion. But that’s not the best part. The best part is that, once again, the family court “did not set forth any reasons upon the record for dismissing the petition in the furtherance of justice as required by statute.” D’oh! Besides, as the Third Department points out, another statute specifically states that “such a dismissal [or withdrawal] is considered a termination of the proceeding in the [child’s] favor.” In other words, with prejudice.

Once again: there is simply no substitute for having an intimate familiarity with both the CPLR and the FCA if one is to practice in family court. In the old days, it was said that attorneys “read the law”. Pity too few attorneys read it today.