Friday, October 11, 2013

Default Judgments Coming Home to Roost

It was bound to happen that the spate of default judgments that seemed to come across my desk this year would finally rear their heads again at some point. Even for prospective clients meeting with me for the first time, it appears that 2013 has been the year of the default judgment.

The first candidate across the desk was the dangerous combination of a default judgment in Family Court, especially where the default was used to establish paternity of a child and enter a significant award of child support and arrears. Waiting for the passage of time and hoping that the Court would forget about the case has not done the prospective client much good...

The second candidate arrived on the wings of information subpoenas and restraining notices. Not surprisingly, when the Defendant's bank account got restrained, my telephone started ringing off the hook to see how to get their money back. Luckily, the Court granted the emergent order to lift the restraint, but now there is a whole new case to worry about.

And then the third candidate has been arriving day after day, where an attorney seeking to vacate a default judgment (which, incidentally, I don't think the Court even entered yet) seems to send the same set of papers to my office repeatedly. No calendar or motion date scheduled yet, just a stack of papers with the same citations to some old (and overruled) case law.

Friday's moral of the story: don't let a default judgment be taken against you.

For more information or to set up a consultation, please call me at 718.568.0221 (New York clients) or 908.698.0417 (New Jersey clients), or visit my website (AndrewMAyers.com).

Wednesday, October 9, 2013

Confirmation of Supervised Visitation, Mental Health Evaluation and Sua Sponte Orders of Protection in New York Family Court

FAMILY COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS

[CAPTION]

CONFIRMATION OF REPORT OF THE COURT ATTORNEY REFEREE

Pursuant to an Order of Reference, this matter was referred to a Court Attorney Referee to hear and report.

On July 2, 2013, the Court Attorney Referee issued a Report with recommendations regarding custody and visitation for the subject children, [Child #1], born on [], and [Child #2], born on []. (See, Civil Practice Law and Rules §4320 [b]). The Report contains the following recommendations: (1) that [Mother] undergo a full psychiatric assessment, and that she be directed to comply with any recommendations made by the psychiatrist, including therapy and medication as a component to a parenting plan; (2) that the current visitation schedule be modified to therapeutic supervised visitation, to be supervised by a therapeutic social worker and that the social worker provide reports to the court every 90 days, with [Mother] paying for the therapeutic supervised visitation. Counsel should have access to the reports upon request, and that counsel may review the reports with the parties but not provide copies of the reports to the parties. The Court Attorney Referee recommends that the visitation be community based and at dates and times as arranged with the social worker and parties for a minimum of six (6) hours of visitation bi-weekly, with additional visitation if scheduling and finances allow. The Court Attorney Referee recommended that [Mother] be given the opportunity to submit financial documentation regarding her ability to pay for the visitation; *1 (3) that the other portions of the [2012] order should be continued, including the order that [Mother] may only attend the children's activities during her parenting time, that she not have contact with the children's babysitters or other third party providers providing services to the children, that [Mother] not attempt to contact or otherwise interact with the children's school faculty, staff or other support members, that [Mother] not attend mass at [] Catholic Church in [], New York on Sundays so long as the children attend that church, and that neither parent discuss the court proceedings or litigation with the children nor disparage the other parent in the presence of the children; (4) that the Court issue an Order of Protection against [Mother] on behalf of the children and [Father] directing that [Mother] not assault, menace, harass or engage in any unlawful conduct against them, that she be directed to stay away from the children and their school subject to court ordered visitation, that she not use any corporal punishment on the children or discuss the litigation with the children; the Court Attorney Referee recommends that the Order of Protection remain in effect until the younger child [Child #2] reaches the age of 18, which will be on [] 2019.

On July 18, 2013, [Father]'s attorney filed a motion asking the court to confirm the Court Attorney Referee's findings and recommendations. *2 On July 30, the Attorney for the Children filed an Affirmation in Support of [Father]'s motion, and joined in his application that the court confirm the Court Attorney Referee's July 2,2013 Report.

On July 30, 2013, [Mother]'s attorney filed a Notice of Motion (Crossmotion) asking this Court to reject (in whole or in part) the Court Attorney's report, and to order a new hearing. *3 This Court finds the Motion (Crossmotion) to be without merit.

Upon review of the very detailed report of the Court Attorney Referee and the voluminous record of the proceedings, including the transcripts of the lengthy hearing, this Court adopts the Court Attorney Referee's findings of fact, and confirms the Court Attorney Referee's report and recommendations.

A Court may appoint a referee to hear and determine an action or specific issues, or, alternatively, appoint a referee to hear the evidence and report to the Court (Civil Practice Law and Rules §§4001, 4301, 4311, 4320 [reference to report]; see generally, 8 Weinstein-Korn-Miller, NY Civil Prac ¶4301.02 at 43-6). Insofar as relevant, Civil Practice Law and Rules §4403 provides that:

Upon the motion of any patty or on his [her] own initiative, the judge required to decide the issue may confirm or reject, in whole or in part, the verdict of an advisory jury or the report of a referee to report; may make new findings with or without taking additional testimony; and may order a new trial or hearing. * * * Where no issues remain to be tried the Court shall render decision directing judgment in the action.

Civil Practice Law and Rules §4403 provides a procedural mechanism by which any party to an action in which a Referee has been appointed to report may seek a judicial decree confirming or rejecting the Referee's report. See Galiber v. Previte, 40 NY2d 822, 824 (1976); O'Donnell v. O'Donnell, 80 AD3d 586 (Second Dept., 2011); Wilderv. Wilder, 55 AD3d 1341 (Fourth Dept., 2008); Sillah v. Tanvir, 18 AD3d 223, 224 (First Dept., 2005) leave toappeal denied by 5 NY3d 711 (Court of Appeals, 2005); Sidoti v. Degliuomini, 10 AD3d 396 (Second Dept., 2004); Thomas o/b/o Hamlin Park Community & Taxpayers'Association v. Murphy, 2 AD3d 1404 (Fourth Dept., 2003).

"It is well settled that the report of a Special Referee shall be confirmed whenever the findings contained therein are supported by the record and the Special Referee has clearly defined the issues and resolved matters of credibility." Nager v. Panadis, 238 AD2d 135 (First Dept., 1997); Marcano v. U-Haul Co. ofVirginia, 82 AD3d 479 (First Dept., 2011); Taveras v. General Trading Co.,Inc., 73 AD3d 659 (First Dept., 2010) (A referee's report will be confirmed if his/her findings are supported by the record. The Appellate court will defer to the referee's determination, particularly where it turns upon an assessment of the witnesses' credibility); Cooke v. 3Flanagan, 52 AD3d 257 (First Dept., 2008); Lee v. Solimano, 34 AD3d 299 (First Dept., 2006); Baker v. Kohler, 28 AD3d 375 (First Dept., 2006) leave to appeal denied by 7 NY3d 885 (Court of Appeals,2006); (The report of a referee should be confirmed if its findings are supported by the record); Simons v. Ross, 309 AD2d 667 (First Dept., 2003). In the instant case, the findings of fact and conclusions of law made by the Court Attorney Referee, including her credibility findings, are supported by the voluminous record, which includes all transcripts and the very large court record.

Now, after examination and inquiry into the facts and circumstances of the case, it is hereby:

ORDERED, that the Court Attorney Referee's [2013] Report is confirmed;

ORDERED, that [Mother] shall not file any pleadings, including petitions, orders to  show cause and motions without prior written approval of the court;

ORDERED, that [Father]'s petition filed on [2012] to modify the order of visitation (docket #s []) is granted as follows:

(1) [Mother] shall undergo a full psychiatric assessment and comply with any recommendations made by the psychiatrist, including therapy and medication as a component to a parenting plan;

(2) The current visitation schedule is modified to therapeutic supervised visitation, to be supervised by a therapeutic social worker. The social worker shall provide reports to the court every 90 days, with [Mother] paying for the therapeutic supervised visitation. Counsel may have access to the reports upon request. Counsel may review the reports with the parties but shall not provide copies of the reports to the parties. The visitation shall be community based and at dates and times as arranged with the social worker and parties for a minimum of six (6) hours of visitation bi-weekly, with additional visitation if scheduling and finances allow;

If [Mother] wishes the Court to determine her ability to pay for the supervised visitation, she must submit the following financial documents to the court by October 10, 2013: the last four years federal and New York State income tax returns (including all attachments and schedules), a notarized financial disclosure affidavit, and copies of all bank statements and brokerage statements for the past three years. [Mother] must also submit a notarized letter setting forth how she currently supports herself, as well as an accounting of the money she received from the sale of a home to [Witness] in 2006.

Regarding the person who will be supervising the visits, the visitation can be supervised by Comprehensive Family Services or by a social worker who is approved by the Appellate Division, Second Department. All counsel must confer with their clients and may consent to one supervisor and submit the name to the court jointly for the issuance of an order. If there is no consent, each attorney must submit the name of a supervising agency or social worker to this Court for the Court's selection and issuance of an order. These submissions must occur by October 10, 2013.

(3) The other portions of the [2012] order shall be continued, including the following:

(a) [Mother] may only attend the children's activities during her parenting time;

(b) [Mother] shall not have contact with the children's babysitters or other third party providers providing services to the children;

(c) [Mother] shall not attempt to contact or otherwise interact with the children's school faculty, staff or other support members;

(d) [Mother] shall not attend mass at [] Catholic Church in [], New York on Sundays so long as the children attend that church

(e) Neither parent shall discuss the court proceedings or litigation with the children nor disparage the other parent in the presence of the children.

(4) This Court shall issue an Order of Protection against [Mother] on behalf of the children and [Father] ordering [Mother] to not assault, menace, harass or engage in any unlawful conduct against them, ordering that she stay away from the children and their school subject to court ordered visitation, ordering that she not use any corporal punishment on the children, and ordering her to not discuss the litigation with the children. The Order of Protection shall remain in effect until the younger child [Child #2] reaches the age of 18, which will be on [2019].

This constitutes the Decision and Order of the Court.

ENTER:

/S/ JUDGE
FAMILY COURT – QUEENS COUNTY

DATED: JAMAICA, NEW YORK
September [], 2013

*1 The Court Attorney Referee noted that [Mother] had private counsel during the course of the proceedings, and that she should be given an opportunity to submit the following financial documentation to the court to determine her ability to pay for the supervised visitation within two weeks of the date of confirmation of her report: the last four years income tax returns, a notarized financial disclosure affidavit, and copies of all bank statements and brokerage statements. The Court Attorney Referee also recommends that [Mother] be directed to submit a notarized letter setting forth how she currently supports herself, as well as an accounting of the money she received from the sale of a home to one [Witness] in 2006.

*2 Attached to the motion papers is an Affirmation of Service stating that Mr. [] ([Mother]'s attorney) and Mr. [] (the Attorney for the Children) were served with the motion papers via overnight delivery service (Federal Express).

*3 On July 19, 2013, [Mother]'s attorney submitted a letter to the court indicating that he recently moved to a new office and that he only received the C0urt Attorney Referee's forty-six page report on Wednesday, July 17,2013. He stated his intent to move to reject in whole or in part the Referee's Report as expeditiously as possible. A copy of the letter was also sent to [Mother], Mr. Ayers (the father's attorney) and Mr. [] (the Attorney for the Children). Despite the fact that [Mother]'s attorney did not file his motion with fifteen days after the filing of the Referee's Report, as mandated by CPLR § 4403, this Court has reviewed and considered the Notice of Motion (Crossmotion) that was filed on July 30,2013.


Friday, October 4, 2013

Denial of Objections to Counsel Fee Award in New York Family Court

FAMILY COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS

[CAPTION]

Family Court Act ("FCA") Section 439 (a) empowers Support Magistrates to "hear, determine and grant any relief within the powers of the court" in proceedings properly before them. FCA Section 439(e) provides that the Support Magistrate's determination "shall include findings of fact and a final order." The parties are permitted by statute to submit "specific written objections" to the final order for "review" by a Family Court Judge.

The Family Court Judge's "review" is a narrow one. It is the Support Magistrate, and not the reviewing Judge, who was present at the evidentiary hearing and was, therefore, uniquely able to evaluate both the evidence and the credibility and demeanor of witnesses prior to making an order. Given the above, the scope of the Family Court Judge's "review" is confined to an inquiry as to whether the Support Magistrate has made the necessary Findings of Fact and an Order, and upon review of the record, whether there is a reasonable basis for the Support Magistrate's order.

On July 19,2013, this Court did issue a Decision and Order on Objection in which it set forth that part of the parties' extensive litigation history as was relevant to the issue of child support. (See, Order of July 19, 2013 which is incorporated herein). Any further relevant portions of the record were obtained from the court file including the findings of fact as well as the audio recording of the proceedings.

On May 13, 2013, Respondent-Father's motion for counsel fees was before Support Magistrate []. Respondent-Father appeared together with counsel before Support Magistrate []. There was no appearance by Petitioner-Mother when the case was called at 9:24a.m. and no communication had been received from her. A hearing was held with respect to Respondent-Father's motion for counsel fees. Respondent-Father testified that he retained Mr. Ayers as his counsel and submitted their retainer agreement which was received in evidence. Respondent-Father testified that he incurred counsel fees of $62,221.52 in connection with the numerous petitions and applications filed by Petitioner-Mother seeking a reduction, termination, suspension of the child support order, adjustment of arrears, refund of overpayments, a petition seeking an award of child support to her, as well as numerous orders to show cause, motions and subpoenas filed by Petitioner-Mother, the prosecution of his enforcement petition and motion for counsel fees herein and the repeated adjournments occasioned by Petitioner-Mother.

Respondent-Father testified that since July 2011 he has appeared 23 times in court always ready to proceed. The Support Magistrate took judicial notice of the court dates and proceedings under the instant docket, as well as other child support dockets involving the parties. *1 Respondent- Father submitted the billing records and invoices from his counsel and testified that these services provided by counsel were necessary to successfully litigate these matters. Respondent-Father submitted his financial disclosure affidavit and his 2012 tax return which were received in evidence by the Support Magistrate and testified that Petitioner-Mother had the financial means to pay the requested legal fees. At the conclusion of the hearing, the Support Magistrate reserved decision. Thereafter, on July 9, 2013, the Support Magistrate issued an order which granted Respondent-Father's motion for counsel fees and awarded him counsel fees of $50,000, payable by Petitioner-Mother directly to Respondent-Father by check or money order at $192 weekly, commencing August 1, 2013 until satisfied.

On August 14, 2013, Petitioner-Mother filed a timely *2 objection together with an affidavit of service upon Respondent-Father's counsel. Her objection consists of 35 pages, the majority of which is addressed to her litany of complaints of misconduct by lawyers and abuse of discretion and bias by jurists in her divorce, custody and support matters since 2002, to which she has annexed 38 pages of prior orders and decisions from Family Court and Supreme Court together with an affidavit of service for the Appellate Division Second Department. In essence, as is relevant, Petitioner-Mother objects to the Support Magistrate's order directing her to pay legal fees which she claims were awarded in the absence of any evidence or hearing, further claims that the court was without jurisdiction to award counsel fees because Petitioner-Mother was never served with the violation petition and that she was never served with papers for a hearing on Respondent-Father's motion for legal fees and was never provided with papers detailing the work done by counsel. Petitioner-Mother maintains that she was never sent notice of the May 13 court date, her modification petition was dismissed and counsel fees awarded even though she was present in the courthouse, but not called into the courtroom. Additionally, Petitioner-Mother objects that the Support Magistrate is biased against her, as were Judge [] and the other judges, referees and magistrates in Queens courts which cumulatively have prevented her from getting fair rulings and she is seeking to have the judgment of divorce vacated or modified as it too was based on fraud. Petitioner-Mother alleges misconduct by attorneys on the Assigned Counsel Panel who represented her on the support and custody matters.

On August 22, 2013, Respondent-Father, by his counsel filed a timely rebuttal together with a valid affirmation of service upon Petitioner-Mother. Counsel for Respondent-Father maintains that the objection was improperly served upon his office by Petitioner-Mother, a party to the action and should be dismissed. Additionally, counsel contends that Petitioner-Mother was served with the violation petition as was determined by Support Magistrate who conducted a traverse hearing, counsel fees were properly awarded based upon Respondent-Father's testimony and documentary evidence supported by him at the hearing before the Support Magistrate which preceded upon Petitioner-Mother's default upon her failure to appear.

NOW, after consideration of the facts and circumstances of this case, Petitioner-Mother's objection is denied and Respondent-Father's rebuttal is granted for the following reasons.

Pursuant to FCA § 439(e), a party filing an objection must serve a copy of such objection upon the opposing party and file proof of service with the court at the time of the filing of the objection. On January 4, 2013, the Honorable Judge [] issued a written order which prohibited Petitioner-Mother from utilizing mail service and directed that all future petitions, orders to show cause, motions and objections filed by Petitioner-Mother must be served by personal service upon Respondent-Father through his attorney at the attorney's law offices, and that proof of service must include a signed acknowledgment of receipt. (See, Order of January 4, 2013 which is incorporated herein). The Affidavit of service submitted with Petitioner-Mother's objection reflects that it was served by Cyril Penn by mail upon Respondent-Father's attorney. On the right hand side of the affidavit the following words, in a different handwriting were handwritten in "served by mail and in person Ayers 540 President St. Brooklyn". There is no signature or attestation under these words and no affidavit of personal service has been submitted together with the objection. Counsel for Respondent-Father avers in his rebuttal that it was Petitioner-Mother *3 who "dropped off' the objection at his office on August 14,2013. CPLR § 2103(a) mandates that only a non-party to the action may serve papers. Service of process by the party himself/herself is a non-waivable jurisdictional defect rendering the action subject to dismissal. Additionally, a signed acknowledgment of receipt by Respondent-Father's counsel has not been submitted by Petitioner-Mother as proof of service as is required pursuant to Judge []'s order of January 4, 2013. Therefore, the affidavit of service is defective and the objection must be denied.

Even were this court to reach the merits of Petitioner-Mother's objection regarding the award of counsel fees, a review of the record reflects that the Support Magistrate properly proceeded to a hearing on Respondent-Father's motion for counsel fees upon Petitioner-Mother's default for failing to appear in court as directed and as referenced in this Court's prior Decision and Order on Objection dated July 19, 2013. The Support Magistrate conducted a hearing at which she received testimony and evidence on Respondent-Father's motion for counsel fees. Once an order is entered upon a party's default, s/he may not seek relief by the filing of an objection pursuant to FCA § 439(e). Rather, Petitioner-Mother must seek relief from the order pursuant to CPLR § 5015 by making a motion to vacate the default. See, Garland v. Garland, 28 AD3d 481 (2nd Dept., 2006); Kondratyeva v.Yapi, 13 AD3D 376 (2nd Dept., 2004); Matterof Widerman v. Murley, 155 AD2d 841 (3rd Dept., 1989); Menaldino v. Johnson, 162 AD2d 758 (3rd Dept., 1990). As such, the court is unable to determine the merits of the objection and it is therefore denied.

With respect to Petitioner-Mother's objection regarding lack of notice of Respondent-father's motion for counsel fees *4 it appears that Petitioner-Mother is raising this issue for the first time in her objection. The law is clear that a party may not submit proof now and argue factual matters in his/her objection which s/he failed to offer proof of at a hearing before the Support Magistrate. See, Matter of Rzemieniewska-Bugnacki v. Bugnacki, 51 AD3d 1029 (2nd Dept., 2008); Redmondv. Easy, 18 AD3d 283 (1st Dept., 2005); Lahrs v. Lahrs, 158 AD2d 944 (4th Dept., 1990). In any event, Petitioner-Mother's claim is again belied by her application before the Support Magistrate on April 3, 2013 for an adjournment to return with counsel to represent her on her modification petition and Respondent-Father's motion for counsel fees after the violation petition was settled on the consent of both parties, without prejudice to Respondent-Father's right to seek counsel fees. Ironically, in her objection she complains that Mr. [] her appointed counsel on the violation petition settled that matter but "refused to do the hearing on the legal fees." *5 Petitioner-Mother's objection is without merit and is denied.

With respect to Petitioner-Mother's objection regarding the Court's lack of jurisdiction over the violation proceeding (Docket F[]), that specific objection as well as objections of bias by the Support Magistrate and ineffective assistance of counsel were previously denied by Decision and Order of the Honorable Judge [] on January 4, 2013. (See, Order of January 4, 2013 which is incorporated herein). Any further objection by Petitioner-Mother is untimely and is therefore denied.

With respect to Petitioner-Mother's objection regarding dismissal of her modification petition (Supplement "I), including her claims of not having been provided notice of the court date and the scheme by Court personnel to call her cases, including the hearing for counsel fees, without her, those objections were previously addressed and denied by this Court in its decision of July 9, 2013 and are adopted herein by reference. Any further objections are denied as untimely.

With respect to Petitioner-Mother's objection that the Support Magistrate has demonstrated a bias toward her, this Court finds no evidence or demonstration of bias by the Support Magistrate. Therefore, this objection is without merit and is denied.

With respect to Petitioner-Mother's remaining objections regarding bias by other jurists toward her as well as vacating or modifying her divorce judgment, this Court is without authority to address these matters. In any event, Judge []'s Order was affirmed by the Appellate Division in []. Petitioner-Mother's objections are therefore denied.

WHEREFORE, by reason of the foregoing, Petitioner-Mother's objection is denied and Respondent-Father's rebuttal is granted.

This constitutes the decision and order of this court.

Notify parties and counsel.

Notify Support Magistrate []

Notify SCU.

/S/ JUDGE
FAMILY COURT, QUEENS

DATED: SEPTEMBER 13, 2013
JAMAICA, NEW YORK

*1 The instant docket was filed by Petitioner-Mother on June 6, 2011 and contains 9 supplemental petitions (Supplement "A" through "I"). Docket F-[] was filed by Respondent-Father on March 7, 2012, seeking enforcement of the order of child support. Docket F-[] was filed on March 19, 2012 by Petitioner-Mother seeking an award of child support from the custodial parent Respondent-Father.

*2 On July 15, 2013 counsel for Respondent-Father filed a Notice of Entry of the Support Magistrate's July 9, 2013 Order, together with an affirmation of service upon Petitioner-Mother. Additionally, the court file reflects that the order for counsel fees was mailed to the parties on August 13, 2013. Therefore, the objection is deemed timely pursuant to FCA §439(e).

*3 While this court can appreciate that Petitioner-Mother is pro se and might have misconstrued Judge []'s order of January 4, 2013 that Respondent-Father's counsel be personally served by her, such misunderstanding is belied by the fact that Petitioner-Mother had arranged for someone other than herself to effectuate service of the instant objection, of her prior objection decided by this court, and of her matters to the Appellate Division and therefore is clearly aware that she, as a party may not serve papers relating to her own proceedings.

*4 Respondent-Father's counsel filed a motion for counsel fees under the instant docket on December 20, 2011 which contained an affirmation of service upon Petitioner-Mother's counsel. Respondent-Father's counsel filed a Notice of Cross Motion on April 4, 2012 which included a request for counsel fees and which includes an affirmation of service by Overnight Delivery Service (Federal Express) upon Petitioner-Mother which is dated April 4, 2012.

*5 Page 6 of Petitioner-Mother's objections.