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#376 Third Department Caselaw Round-Up for May 31, 2012, Part 1 of 6

376 Post 05-31-12, Part 1 Third Department May.pngThe first case asks more questions than it answers. It also illustrates the dangers of an inartfully drafted stipulation of settlement that makes assumptions about the law.

The second case concerns SSL §384-b again. While such appeals are almost always affirmed, I follow these specific cases because, once in a great while, they are reversed on appeal. However, this case is not one of them.

376 Post-2 Albany County.pngCase #262 #513772
Barlette v. Barlette
Albany Supreme-McNamara Issues: Contempt; Divorce; Stipulation Cited statutes: DRL §236B Modified

The parties are the divorced parents of twin daughters. The plaintiff-ex-wife moved to hold the defendant-ex-husband in contempt “unless he provided evidence that he was in compliance with a provision of the parties’ stipulation … that required him to annually provide proof to [the ex-wife] that he maintained life insurance in the amount of $100,000 for the benefit of each child”.

Interestingly, the court parried this thrust by the ex-wife by finding that the ex-husband’s “obligation to maintain life insurance for the benefit of the parties’ children expired when the children reached the age of 21”. Um, no it didn’t. Perhaps you should read that stipulation of divorce again, judge.

Obviously, the ex-wife appealed.

Remember the key black letter rule involved here: stipulations “must be construed in accordance with the principles of contract interpretation and if the language is clear and unambiguous, the intent of the parties must be gleaned from the agreement without resort to extrinsic evidence“.

In other words, it was wrong for the judge to presume that there was any expiration date for the maintenance of the life insurance other than, perhaps, the lifespan of the ex-husband itself. Remember: this was not a part of the ex-husband’s child support obligation – which would necessarily terminate when the children reached the age of 21. Oh, no, no, no! This was separate and apart from that. This was an explicit and unqualified agreement by and between the parties that had no termination date.

How do we know that this clause of the agreement was separate and apart from the ex-husband’s child support obligations? Because “the stipulation specifically provides that all issues regarding child support, custody, and visitation were previously and separately determined by an order of Family Court”. D’oh!

The Third Department slyly notes, in passing, “that [the ex-husband] freely negotiated and agreed upon [the terms of the stipulation] with the advice of counsel”. And I’m sure that thought weighs heavily on the ex-husband, in retrospect. In other words: BE EXTREMELY CAREFUL IN READING THE STIPULATION, WORD BY WORD AND LINE BY LINE, TO MAKE DAMNED SURE THAT WHAT IT STATES IS EXACTLY WHAT YOU WANT. Because you will be held to it. Therefore, you should read ANY proposed contract many times to make sure everything is in order.

It would seem that the ex-husband assumed that his obligation to maintain the life insurance would expire when his daughters reached 21. Maybe the attorney who drafted the stipulation assumed this as well. However, that is not what the stipulation explicitly states. Therefore, one should never assume anything about a contract; the contract should be able to speak for itself.

So, given this interesting outcome, the appeal can not even be determined, since the appeal dealt explicitly with a denial of the contempt motion on other grounds and without a hearing. Therefore, the matter had to be remitted to the court.

376 Post-3 Broome County.pngCase #263 #513300
In the Matter of Jamal B.
Broome Family-Pines Issues: Abandonment; Clear and Convincing Evidence; Foster Care; Placement; Removal; Termination of Parental Rights; Witnesses Cited statutes: SSL §384-b Affirmed

You know the drill.

The father has four children. The three oldest children were removed from his custody and placed in foster care. The youngest child was removed 19 months later. DSS brought a TPR petition against the father on the ground of abandonment. After a hearing, the court agreed and terminated the father’s parental rights.

The father appealed.

All that DSS had to do was to establish that the father had failed to have any substantial or meaningful contact or communication with his children for a period of six continuous months. Once DSS does so, the children are presumed to be abandoned and the burden of proof shifts to the father to rebut the presumption of the children’s abandonment.

The record showed that the father visited with the children only twice in six months, despite being scheduled to visit with them every two weeks. He spoke with the children only once, by phone, and then only at the behest of the foster father. The father sent the children no letters or cards and he did not attend any meetings to discuss the status and well-being of his children. Furthermore, the father failed to demonstrate that he was unable to contact or otherwise prevented from contacting his children.

Here’s the deal: if you want to keep your children, when they are in foster care, then you will need to make every effort to see your children as often as possible. Otherwise, there is the very real and grave threat that you could forever lose your children.