Decisions of Interest

Appearances Aren't Everything

An appearance of impropriety alone, without proof of actual impropriety or of harm to the children's interests, was not enough to require a new trial on the issues in this custody modification case. Lovitch v. Lovitch, — 64 A.D.3d 710 (2d Dept., 7/21/09) (Santucci, J.P., Florio, Covello and Dickerson, JJ.).

Because the parties were not getting along, joint custody of the parties' children was modified so that the father would have full custody, and the mother would have visitation rights. The mother appealed from this order on the basis of an appearance of impropriety in the choice of attorney to represent the children. Specifically, she complained that the father's attorney was a board member (and later elected president) of the Children's Rights Society Inc. (CRS), and the court-appointed attorney for the children was an attorney from CRS, which relationship created an appearance of impropriety in the proceedings.

The Appellate Division, Second Department, noted that the father's attorney properly disclosed in open court his position with CRS early on in the proceeding, and the mother failed to object at any time before or during the course of the six-month hearing. Therefore, the mother waived any claim of alleged conflict of interest as it applied to her. Develop Don't Destroy Brooklyn v. Empire State Dev. Corp., 31 AD3d 144; see also Code of Professional Responsibility DR 5-110 (22 NYCRR ' 1200.9)). As to a conflict of interest with respect to the children, the appellate court found that the Family Court providently exercised its discretion in denying the mother's motion for a new trial. (See CPLR 4404(b)). The court found that the attorney for the children had properly advocated their position, and there was nothing in the record to indicate that the attorney's personal interests interfered with the best interests of the children. Citing to Christensen v. Christensen, 55 AD3d 1453, the court concluded, “Absent actual prejudice or a substantial risk thereof, the appearance of impropriety alone is not sufficient to require disqualification of an attorney.”

Nonpaying Mother on Relief Should Not Have Been Ordered to Jail

Because a mother had demonstrated a legitimate inability to pay, the Second Department overturned a Family Court order committing her to jail on weekends on account of her willful violation of a child support order. John T. v. Olethea P., 64 A.D.3d 710 (2d Dept., 7/21/09) (Tom, J.P, Friedman, Catterson, Moskowitz and Richter, JJ.).

In June 2001, a default judgment was entered directing the respondent mother to pay $1,065 per month in child support. In May 2004, she filed a modification petition. The Support Magistrate found that she had demonstrated sufficient changes in circumstances to warrant a reduction in her support obligation for one year due to the fact that she was unable to seek employment because of a psychiatric disability. Approximately one year later, she moved to terminate the support obligation based on the fact that her sole means of support was Supplemental Security Income (SSI). At that time, the court imposed a $25 per month support obligation but also found that she was unable to work due to her disability. That court fixed arrears at over $39,000. The respondent filed an objection seeking to cap the arrears at $500, pursuant to Family Court Act ' 413(1)(g), and she submitted evidence that her sole means of support since 2001 was SSI benefits, which were below the poverty guidelines of the Department of Health and Human Services (HHS). The objection was denied without prejudice.

In 2006, the father filed a petition alleging that the respondent had failed to abide by the support order. At a hearing on the issue, the respondent once again said her sole source of income was $710 per month from SSI. The Support Magistrate directed her to pay the $25 per month in child support, but the respondent refused. Based on this refusal, the Support Magistrate found that she willfully failed to comply with the support order and recommended incarceration. This finding was confirmed by the court after the respondent failed to appear on two court dates.

On appeal, the court noted that a respondent is prima facie presumed to have sufficient means to support his or her children, and the failure to provide support as ordered constitutes “prima facie evidence of a willful violation” (Family Court Act ' 454(3)(a)). It is the respondent's burden to offer some competent, credible evidence of the inability to make the required payments. Matter of Powers v. Powers, 86 NY2d 63 (1995). However, when, as in this case, a noncustodial parent demonstrates that she needs Social Service financial assistance, she satisfies “one unassailable criterion to overcome the presumption that would require her to be obligated for support of her [child].” Matter of Rose v. Moody, 83 NY2d 65 (1993), cert denied 511 U.S. 1084 (1994). In finding that the respondent mother should not have been punished for her failure to pay child support in this instance, the Second Department stated, “[R]espondent demonstrated that her sole source of income was SSI benefits, and the court recognized that she suffered from a psychiatric disability which prevented her from working ' . absent proof of an ability to pay, an order of commitment for willful violation of a support order may not stand (see Family Court Act ' 455(5); Matter of Riccio v. Pacquette, 284 AD2d 335 (2001).” In addition, since the evidence showed that the respondent's income from 2001 forward never exceeded HHS poverty guidelines, the court found that arrears should have been fixed at $500. See Matter of Walsh v. Shevlin, 307 AD2d 322 (2003).

Appearances Aren't Everything

An appearance of impropriety alone, without proof of actual impropriety or of harm to the children's interests, was not enough to require a new trial on the issues in this custody modification case. Lovitch v. Lovitch, — 64 A.D.3d 710 (2d Dept., 7/21/09) (Santucci, J.P., Florio, Covello and Dickerson, JJ.).

Because the parties were not getting along, joint custody of the parties' children was modified so that the father would have full custody, and the mother would have visitation rights. The mother appealed from this order on the basis of an appearance of impropriety in the choice of attorney to represent the children. Specifically, she complained that the father's attorney was a board member (and later elected president) of the Children's Rights Society Inc. (CRS), and the court-appointed attorney for the children was an attorney from CRS, which relationship created an appearance of impropriety in the proceedings.

The Appellate Division, Second Department, noted that the father's attorney properly disclosed in open court his position with CRS early on in the proceeding, and the mother failed to object at any time before or during the course of the six-month hearing. Therefore, the mother waived any claim of alleged conflict of interest as it applied to her. Develop Don't Destroy Brooklyn v. Empire State Dev. Corp. , 31 AD3d 144; see also Code of Professional Responsibility DR 5-110 (22 NYCRR ' 1200.9)). As to a conflict of interest with respect to the children, the appellate court found that the Family Court providently exercised its discretion in denying the mother's motion for a new trial. (See CPLR 4404(b)). The court found that the attorney for the children had properly advocated their position, and there was nothing in the record to indicate that the attorney's personal interests interfered with the best interests of the children. Citing to Christensen v. Christensen , 55 AD3d 1453, the court concluded, “Absent actual prejudice or a substantial risk thereof, the appearance of impropriety alone is not sufficient to require disqualification of an attorney.”

Nonpaying Mother on Relief Should Not Have Been Ordered to Jail

Because a mother had demonstrated a legitimate inability to pay, the Second Department overturned a Family Court order committing her to jail on weekends on account of her willful violation of a child support order. John T. v. Olethea P. , 64 A.D.3d 710 (2d Dept., 7/21/09) (Tom, J.P, Friedman, Catterson, Moskowitz and Richter, JJ.).

In June 2001, a default judgment was entered directing the respondent mother to pay $1,065 per month in child support. In May 2004, she filed a modification petition. The Support Magistrate found that she had demonstrated sufficient changes in circumstances to warrant a reduction in her support obligation for one year due to the fact that she was unable to seek employment because of a psychiatric disability. Approximately one year later, she moved to terminate the support obligation based on the fact that her sole means of support was Supplemental Security Income (SSI). At that time, the court imposed a $25 per month support obligation but also found that she was unable to work due to her disability. That court fixed arrears at over $39,000. The respondent filed an objection seeking to cap the arrears at $500, pursuant to Family Court Act ' 413(1)(g), and she submitted evidence that her sole means of support since 2001 was SSI benefits, which were below the poverty guidelines of the Department of Health and Human Services (HHS). The objection was denied without prejudice.

In 2006, the father filed a petition alleging that the respondent had failed to abide by the support order. At a hearing on the issue, the respondent once again said her sole source of income was $710 per month from SSI. The Support Magistrate directed her to pay the $25 per month in child support, but the respondent refused. Based on this refusal, the Support Magistrate found that she willfully failed to comply with the support order and recommended incarceration. This finding was confirmed by the court after the respondent failed to appear on two court dates.

On appeal, the court noted that a respondent is prima facie presumed to have sufficient means to support his or her children, and the failure to provide support as ordered constitutes “prima facie evidence of a willful violation” (Family Court Act ' 454(3)(a)). It is the respondent's burden to offer some competent, credible evidence of the inability to make the required payments. Matter of Powers v. Powers , 86 NY2d 63 (1995). However, when, as in this case, a noncustodial parent demonstrates that she needs Social Service financial assistance, she satisfies “one unassailable criterion to overcome the presumption that would require her to be obligated for support of her [child].” Matter of Rose v. Moody , 83 NY2d 65 (1993), cert denied 511 U.S. 1084 (1994). In finding that the respondent mother should not have been punished for her failure to pay child support in this instance, the Second Department stated, “[R]espondent demonstrated that her sole source of income was SSI benefits, and the court recognized that she suffered from a psychiatric disability which prevented her from working ' . absent proof of an ability to pay, an order of commitment for willful violation of a support order may not stand (see Family Court Act ' 455(5); Matter of Riccio v. Pacquette , 284 AD2d 335 (2001).” In addition, since the evidence showed that the respondent's income from 2001 forward never exceeded HHS poverty guidelines, the court found that arrears should have been fixed at $500. See Matter of Walsh v. Shevlin , 307 AD2d 322 (2003).