Decisions of Interest

Court Erred in Ordering Payment of Unreimbursed Health Care Expenses

A divorce judgment was modified, on the law and as a matter of discretion, by deleting the provision directing the defendant husband to pay all unreimbursed health care expenses for the plaintiff/ex-wife. Bains v. Bains, Index No. 21217/01, 2003 N.Y. App. Div. LEXIS 9903 (App. Div., 2d Dept. 9/29/03).

The defendant/husband appealed from a judgment that, among other things, ordered him to pay all unreimbursed health care expenses for both the parties' child and the plaintiff/wife. The appellate court found that the Supreme Court erred in directing the defendant to pay “all” the unreimbursed health care expenses for the plaintiff because judgments of divorce that direct a party to pay the other party's unreimbursed health care expenses “are in the nature of open-ended obligations which this court has consistently disfavored … Ordinary or routine unreimbursed medical expenses should be considered as included in a maintenance award, and extraordinary unreimbursed medical expenses cannot be awarded prospectively in unfixed amounts.” Gulotta v. Gulotta, 215 A.D.2d 724, 725, 627 N.Y.S.2d 428; Zabin v. Zabin, 176 A.D.2d 262, 264, 574 N.Y.S.2d 75. Thus, the judgment was modified to delete the provision directing the defendant to pay the plaintiff's unreimbursed health care expenses.

Agreement Contrary to Divorce's Terms Unenforceable

A plaintiff husband was denied modification of his judgment of divorce because an agreement to limit the duration of alimony payments – executed after the parties' separation agreement – contained terms contrary to the separation agreement, which was later incorporated by reference into the judgment of divorce. Crespo v. Crespo, No. 2002-11077, 2003 N.Y. App. Div. LEXIS 10465 (App. Div., 2d Dept. 10/6/03) (Florio, J.P.; Schmidt, Adams, Crane, J.J.).

The parties' Sept. 17, 1986, separation agreement provided, inter alia, that the husband pay maintenance to the wife until either the husband or wife died, or the wife remarried. The separation agreement does not have an expiration date. Thereafter, on March 8, 1988, the wife purportedly executed a “statement of disclosure” which reads, in relevant part, that it is to “certify that the last alimony payment will be in October, 2001, the expiration date of this Separation Agreement.”

Later, the husband obtained a judgment of divorce. The judgment, entered on the motion of the husband's counsel, incorporated the Sept. 17, 1986, separation agreement by reference but provided that it survive. It also provided for maintenance to be paid to the wife pursuant to the terms of the separation agreement. Significantly, nowhere in the judgment is the statement of disclosure mentioned.

Subsequently, the husband moved to modify the judgment of divorce to terminate his obligation to pay maintenance based on the statement of disclosure. The Supreme Court denied that branch of the motion, finding the statement of disclosure could not be enforced, as it had not been properly acknowledged.

For a different reason than that stated by the Supreme Court, the appellate court here affirmed. Citing Lowinger v. Lowinger, 303 A.D. 2d 723, 757 N.Y.S.2d 323, the court noted that the doctrine of judicial estoppel prohibits a party from obtaining a favorable judgment and subsequently taking an inconsistent position simply because his or her interests have changed. In this instance, the husband obtained a favorable judgment in his action for a divorce based at least in part on the representation that the parties had been living separate and apart pursuant to the terms of the separation agreement, one of which was that he would pay lifetime maintenance to the wife, except in the event of the occurrence of one of the three circumstances. To accept the argument he has now put forward would retroactively modify that agreement and add a fourth self-serving and self- limiting circumstance, ie, that his obligation to pay maintenance expired in October 2001. This, the court found, is contrary to the position he took at the time of the entry of the judgment of divorce and is prohibited under the doctrine of judicial estoppel. The judgment of the Supreme Court was therefore affirmed.

Social Worker's Immunity Upheld

The Supreme Court, Nassau County, properly dismissed causes of action for defamation and malicious prosecution against a social worker who reported suspected child abuse as there is a statutory assumption that such reports are made in good faith and plaintiff offered insufficient evidence to rebut that assumption. Rine v. Chase, Index No. 25132/96, 2003 N.Y. App. Div. LEXIS 10635 (App. Div., 2d Dept. 10/15/03) (Santucci, J.P.; Krausman, Townes, Cozier, J.J.).

The defendant is a certified social worker who provided therapy to the plaintiff's children while the plaintiff and his wife were in the midst of divorce proceedings. In the fall of 1994, the defendant made oral and written reports to the Nassau County Department of Social Services alleging that the plaintiff had abused his children. The reports, which were based primarily on information disclosed by the children during the course of therapy, were ultimately determined to be unfounded, and were expunged from the New York State Child Abuse and Maltreatment Register. The plaintiff subsequently commenced this action against the defendant seeking damages, inter alia, for defamation and malicious prosecution. The defendant thereafter moved for summary judgment dismissing those causes of action, contending that Social Services Law ' 419 immunized her from liability because she had reported suspected child abuse in good faith. The Supreme Court granted those branches of the defendant's motion.

The appellate court affirmed, as defendant was required by ' 419 to report any suspected child abuse, and there is a statutory assumption that mandated reporters like defendant social worker make child abuse allegations in good faith. Plaintiff offered insufficient evidence to raise a triable issue of fact as to whether the defendant engaged in misconduct or gross negligence so as to render the statutory shield ineffectual.

Supreme Court Errs in Terminating Parental Rights Without Hearing

Grant of sole custody to one parent was in effect a termination of parental rights, and thus could not stand where the father had been given no hearing on the matter. Pudalov v. Pudalov, Index No. 333/99, 2003 N.Y. App. Div. LEXIS 9652 (App. Div., 2d Dept. 9/22/03).

Without hearing, the Supreme Court, Westchester County, granted the plaintiff wife's motion for sole custody of the parties' children. It also, sua sponte, suspended the father's visitation rights and conditioned any future contact with the children on his participation in therapy. This appeal followed.

The court here agreed with the father that, as a practical matter, the Supreme Court erred by terminating his parental rights without a hearing, as the parties had earlier made conflicting allegations regarding the best interests of the children. The Supreme Court also erred in requiring the father to participate in therapy as a condition of any future application for visitation. The court therefore reversed on the matters appealed from and ordered that pending the hearing on the issues of custody and visitation, the terms of the parties' February 2, 2000, custody agreement, as incorporated into their judgment of divorce, be reinstated.

Court Erred in Ordering Payment of Unreimbursed Health Care Expenses

A divorce judgment was modified, on the law and as a matter of discretion, by deleting the provision directing the defendant husband to pay all unreimbursed health care expenses for the plaintiff/ex-wife. Bains v. Bains , Index No. 21217/01, 2003 N.Y. App. Div. LEXIS 9903 (App. Div., 2d Dept. 9/29/03).

The defendant/husband appealed from a judgment that, among other things, ordered him to pay all unreimbursed health care expenses for both the parties' child and the plaintiff/wife. The appellate court found that the Supreme Court erred in directing the defendant to pay “all” the unreimbursed health care expenses for the plaintiff because judgments of divorce that direct a party to pay the other party's unreimbursed health care expenses “are in the nature of open-ended obligations which this court has consistently disfavored … Ordinary or routine unreimbursed medical expenses should be considered as included in a maintenance award, and extraordinary unreimbursed medical expenses cannot be awarded prospectively in unfixed amounts.” Gulotta v. Gulotta , 215 A.D.2d 724, 725, 627 N.Y.S.2d 428; Zabin v. Zabin , 176 A.D.2d 262, 264, 574 N.Y.S.2d 75. Thus, the judgment was modified to delete the provision directing the defendant to pay the plaintiff's unreimbursed health care expenses.

Agreement Contrary to Divorce's Terms Unenforceable

A plaintiff husband was denied modification of his judgment of divorce because an agreement to limit the duration of alimony payments – executed after the parties' separation agreement – contained terms contrary to the separation agreement, which was later incorporated by reference into the judgment of divorce. Crespo v. Crespo , No. 2002-11077, 2003 N.Y. App. Div. LEXIS 10465 (App. Div., 2d Dept. 10/6/03) (Florio, J.P.; Schmidt, Adams, Crane, J.J.).

The parties' Sept. 17, 1986, separation agreement provided, inter alia, that the husband pay maintenance to the wife until either the husband or wife died, or the wife remarried. The separation agreement does not have an expiration date. Thereafter, on March 8, 1988, the wife purportedly executed a “statement of disclosure” which reads, in relevant part, that it is to “certify that the last alimony payment will be in October, 2001, the expiration date of this Separation Agreement.”

Later, the husband obtained a judgment of divorce. The judgment, entered on the motion of the husband's counsel, incorporated the Sept. 17, 1986, separation agreement by reference but provided that it survive. It also provided for maintenance to be paid to the wife pursuant to the terms of the separation agreement. Significantly, nowhere in the judgment is the statement of disclosure mentioned.

Subsequently, the husband moved to modify the judgment of divorce to terminate his obligation to pay maintenance based on the statement of disclosure. The Supreme Court denied that branch of the motion, finding the statement of disclosure could not be enforced, as it had not been properly acknowledged.

For a different reason than that stated by the Supreme Court, the appellate court here affirmed. Citing Lowinger v. Lowinger , 303 A.D. 2d 723, 757 N.Y.S.2d 323, the court noted that the doctrine of judicial estoppel prohibits a party from obtaining a favorable judgment and subsequently taking an inconsistent position simply because his or her interests have changed. In this instance, the husband obtained a favorable judgment in his action for a divorce based at least in part on the representation that the parties had been living separate and apart pursuant to the terms of the separation agreement, one of which was that he would pay lifetime maintenance to the wife, except in the event of the occurrence of one of the three circumstances. To accept the argument he has now put forward would retroactively modify that agreement and add a fourth self-serving and self- limiting circumstance, ie, that his obligation to pay maintenance expired in October 2001. This, the court found, is contrary to the position he took at the time of the entry of the judgment of divorce and is prohibited under the doctrine of judicial estoppel. The judgment of the Supreme Court was therefore affirmed.

Social Worker's Immunity Upheld

The Supreme Court, Nassau County, properly dismissed causes of action for defamation and malicious prosecution against a social worker who reported suspected child abuse as there is a statutory assumption that such reports are made in good faith and plaintiff offered insufficient evidence to rebut that assumption. Rine v. Chase , Index No. 25132/96, 2003 N.Y. App. Div. LEXIS 10635 (App. Div., 2d Dept. 10/15/03) (Santucci, J.P.; Krausman, Townes, Cozier, J.J.).

The defendant is a certified social worker who provided therapy to the plaintiff's children while the plaintiff and his wife were in the midst of divorce proceedings. In the fall of 1994, the defendant made oral and written reports to the Nassau County Department of Social Services alleging that the plaintiff had abused his children. The reports, which were based primarily on information disclosed by the children during the course of therapy, were ultimately determined to be unfounded, and were expunged from the New York State Child Abuse and Maltreatment Register. The plaintiff subsequently commenced this action against the defendant seeking damages, inter alia, for defamation and malicious prosecution. The defendant thereafter moved for summary judgment dismissing those causes of action, contending that Social Services Law ' 419 immunized her from liability because she had reported suspected child abuse in good faith. The Supreme Court granted those branches of the defendant's motion.

The appellate court affirmed, as defendant was required by ' 419 to report any suspected child abuse, and there is a statutory assumption that mandated reporters like defendant social worker make child abuse allegations in good faith. Plaintiff offered insufficient evidence to raise a triable issue of fact as to whether the defendant engaged in misconduct or gross negligence so as to render the statutory shield ineffectual.

Supreme Court Errs in Terminating Parental Rights Without Hearing

Grant of sole custody to one parent was in effect a termination of parental rights, and thus could not stand where the father had been given no hearing on the matter. Pudalov v. Pudalov , Index No. 333/99, 2003 N.Y. App. Div. LEXIS 9652 (App. Div., 2d Dept. 9/22/03).

Without hearing, the Supreme Court, Westchester County, granted the plaintiff wife's motion for sole custody of the parties' children. It also, sua sponte, suspended the father's visitation rights and conditioned any future contact with the children on his participation in therapy. This appeal followed.

The court here agreed with the father that, as a practical matter, the Supreme Court erred by terminating his parental rights without a hearing, as the parties had earlier made conflicting allegations regarding the best interests of the children. The Supreme Court also erred in requiring the father to participate in therapy as a condition of any future application for visitation. The court therefore reversed on the matters appealed from and ordered that pending the hearing on the issues of custody and visitation, the terms of the parties' February 2, 2000, custody agreement, as incorporated into their judgment of divorce, be reinstated.