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Verbal Abuse Not a Family Offense
A man's temperamental outbursts toward his family were not severe or pervasive enough to rise to the level of a family offense under PL ' 240.26(3). In Matter of Dora v. Ramon, No. O-02666/03, 2003 NY Slip Op 51320U; 2003 N.Y. Misc. LEXIS 1288, (Fam. Ct., Queens Cty. 10/17/03) (Tallmer, J.).
Petitioner, a paraplegic who lives with respondent and their two children, alleged that respondent committed a family offense on Feb. 21, 2003, when he came home drunk, screamed at the children and threatened to spank them if they did not clean up the house. On several other occasions, he threatened to take the children away from petitioner and have her placed in a home. Although she heard him swear at the children, petitioner never saw respondent hit them, and he never stuck or threatened to strike her.
Petitioner asserted that respondent violated PL ' 240.26(3). That subdivision applies when, with intent to harass, annoy or alarm another person, a person engages in a course of conduct or repeatedly commits acts that alarm or seriously annoy another and which serve no legitimate purpose. An inquest was held at which petitioner and her home health aide testified. Although the court found their testimony largely credible, it concluded that petitioner had failed to meet her burden, as the evidence here fell short of establishing a course of conduct that violated PL ' 240.26(3). The court concluded that it could not enter an order of protection “because a father comes home drunk, yells at his children to clean up the house or makes rude comments to his wife. To do so would tax the already overburdened resources of the Family Court by inviting virtually every marital dispute to be resolved in court.”
Deviation from CSSA Guidelines Is Inappropriate
The support magistrate erred in ordering the mother of children in foster care to pay a lesser amount than recommended under the CSSA guidelines merely because the cost of maintaining the children in foster care was lower than that amount. Matter of Christine B.1 v. Carol R., 2003 N.Y. App. Div. LEXIS 10978 (App. Div., 3d Dept. 10/23/03) (Klein, J.).
Two children were placed into the custody of the Orange County Department of Social Services (DSS) on Oct. 15, 2002, after an emergency removal, but with the consent of their mother. After DSS filed an order of support, the support magistrate found that the mother's adjusted gross income under the Child Support Standards Act (CSSA) (Fam. Ct. Act ' 413) would be $61,630.00, and based on that figure, her basic support obligation should be $1283 per month. However, the magistrate found that the cost to the county for the girls' care was $19.17 per day per child, and therefore deviated from the CSSA guidelines. The order sets forth that the CSSA guideline amount would be unjust or inappropriate because “respondent's basic support obligation is greater than the cost of foster care.” In spite of that finding however, the support magistrate ordered that support be paid in an amount less than the foster care cost.
After hearing on appeal, the court determined that the true beneficiaries of the support amounts set by the CSSA guidelines are children, not their caretakers. Thus, these children should not be shortchanged merely because the county spends less on them than their mother would normally be required to pay for their support under the guidelines. The matter was remanded to the support magistrate for a hearing to determine the appropriate order of support on behalf of the two children, not solely on behalf of Orange County, and to determine what should be done with any excess support payment amounts paid while the children remained in foster care.
Resumption of Cohabitation Does Not Abrogate Home Conveyance
Supreme Court was correct when it found the parties' marital residence, which was conveyed to the plaintiff/wife according to the terms of an earlier separation agreement, remained hers even after the parties resumed cohabitation, because the conveyance was valid and was never repudiated or nullified. Schultz v. Schultz, No. 93268, 2003 N.Y. App. Div. LEXIS 10988 (App. Div., 3d Dept. 10/23/03) (Cardona, P.J., Mercure, Carpinello and Kane, JJ.)
The parties were married in 1969 but were separated for a short period in 1982. At that time, the husband conveyed his joint title to the marital residence solely to the wife, pursuant to the terms of a separation agreement. They subsequently reconciled and resumed cohabitation for several years. In 1999, plaintiff commenced an action for divorce. Following a hearing, Supreme Court issued a judgment of divorce that, among other things, determined that the marital residence was plaintiff's separate property. On appeal, the Third Department found that although the husband contended that the separation agreement was abrogated when the parties resumed cohabitation, he made no argument that the agreement was invalid when the conveyance was made to the wife. Nor was there any evidence that the conveyance was ever repudiated or nullified. These factors, the court held, provided a clear rationale for Supreme Court's conclusion that the marital residence was the wife's separate property.
Father Faces Sanctions Hearing for Frivolous Conduct
The Family Court, Queens County, ordered a sanctions hearing in the case of a man who repeatedly filed petitions for custody and visitation against his children's mother then failed to appear for hearing, noting that these petitions, in addition to those asserting the respondent had committed family offences, could serve as adequate evidence that the petitioner's course of conduct was “frivolous” and subject to sanction under Family Court Act Article 6. Davis v. Byrd, N.Y.L.J. 10/17/03, DOI; pg. 19 (Lebowitz, J.).
Petitioner appeared in Queens Family Court to file a petition for custody of his two daughters, but on the next court date the petition was dismissed for failure of both parties to appear in court. After investigation, the court discovered that petitioner had filed a total of eight family court petitions against respondent in Queens Family Court within a 16-month period. Five were for temporary Orders of Protection, two were for custody and one for visitation. All but one of the petitions were dismissed due to petitioner's failure to appear. The one petition that was not dismissed for non-appearance was then dismissed due to the insufficiency of the allegations.
The court here expressed its belief that petitioner's pattern of conduct might well rise to the level of frivolous conduct and, as such, could be an appropriate case for the imposition of sanctions, despite the Family Court's historical reluctance to impose such penalties. The court noted that 22 NYCRR ' 130-1.1 specifically excludes from its discretion the authority to impose sanctions for frivolous conduct under Article 8, which covers family offenses. But although it is constrained from imposing sanctions and fees against the petitioner for his conduct in bringing abuse charges, the court found that no rules prohibit it from reviewing petitioner's conduct under these cases and determining that they are part of a comprehensive pattern of harassment that can be directly sanctioned under his Article 6 petition. Because petitioner is entitled to a hearing before imposition of sanctions, a hearing on the matter was set for Dec. 5.
Verbal Abuse Not a Family Offense
A man's temperamental outbursts toward his family were not severe or pervasive enough to rise to the level of a family offense under PL ' 240.26(3).
Petitioner, a paraplegic who lives with respondent and their two children, alleged that respondent committed a family offense on Feb. 21, 2003, when he came home drunk, screamed at the children and threatened to spank them if they did not clean up the house. On several other occasions, he threatened to take the children away from petitioner and have her placed in a home. Although she heard him swear at the children, petitioner never saw respondent hit them, and he never stuck or threatened to strike her.
Petitioner asserted that respondent violated PL ' 240.26(3). That subdivision applies when, with intent to harass, annoy or alarm another person, a person engages in a course of conduct or repeatedly commits acts that alarm or seriously annoy another and which serve no legitimate purpose. An inquest was held at which petitioner and her home health aide testified. Although the court found their testimony largely credible, it concluded that petitioner had failed to meet her burden, as the evidence here fell short of establishing a course of conduct that violated PL ' 240.26(3). The court concluded that it could not enter an order of protection “because a father comes home drunk, yells at his children to clean up the house or makes rude comments to his wife. To do so would tax the already overburdened resources of the Family Court by inviting virtually every marital dispute to be resolved in court.”
Deviation from CSSA Guidelines Is Inappropriate
The support magistrate erred in ordering the mother of children in foster care to pay a lesser amount than recommended under the CSSA guidelines merely because the cost of maintaining the children in foster care was lower than that amount.
Two children were placed into the custody of the Orange County Department of Social Services (DSS) on Oct. 15, 2002, after an emergency removal, but with the consent of their mother. After DSS filed an order of support, the support magistrate found that the mother's adjusted gross income under the Child Support Standards Act (CSSA) (Fam. Ct. Act ' 413) would be $61,630.00, and based on that figure, her basic support obligation should be $1283 per month. However, the magistrate found that the cost to the county for the girls' care was $19.17 per day per child, and therefore deviated from the CSSA guidelines. The order sets forth that the CSSA guideline amount would be unjust or inappropriate because “respondent's basic support obligation is greater than the cost of foster care.” In spite of that finding however, the support magistrate ordered that support be paid in an amount less than the foster care cost.
After hearing on appeal, the court determined that the true beneficiaries of the support amounts set by the CSSA guidelines are children, not their caretakers. Thus, these children should not be shortchanged merely because the county spends less on them than their mother would normally be required to pay for their support under the guidelines. The matter was remanded to the support magistrate for a hearing to determine the appropriate order of support on behalf of the two children, not solely on behalf of Orange County, and to determine what should be done with any excess support payment amounts paid while the children remained in foster care.
Resumption of Cohabitation Does Not Abrogate Home Conveyance
Supreme Court was correct when it found the parties' marital residence, which was conveyed to the plaintiff/wife according to the terms of an earlier separation agreement, remained hers even after the parties resumed cohabitation, because the conveyance was valid and was never repudiated or nullified.
The parties were married in 1969 but were separated for a short period in 1982. At that time, the husband conveyed his joint title to the marital residence solely to the wife, pursuant to the terms of a separation agreement. They subsequently reconciled and resumed cohabitation for several years. In 1999, plaintiff commenced an action for divorce. Following a hearing, Supreme Court issued a judgment of divorce that, among other things, determined that the marital residence was plaintiff's separate property. On appeal, the Third Department found that although the husband contended that the separation agreement was abrogated when the parties resumed cohabitation, he made no argument that the agreement was invalid when the conveyance was made to the wife. Nor was there any evidence that the conveyance was ever repudiated or nullified. These factors, the court held, provided a clear rationale for Supreme Court's conclusion that the marital residence was the wife's separate property.
Father Faces Sanctions Hearing for Frivolous Conduct
The Family Court, Queens County, ordered a sanctions hearing in the case of a man who repeatedly filed petitions for custody and visitation against his children's mother then failed to appear for hearing, noting that these petitions, in addition to those asserting the respondent had committed family offences, could serve as adequate evidence that the petitioner's course of conduct was “frivolous” and subject to sanction under Family Court Act Article 6. Davis v. Byrd, N.Y.L.J. 10/17/03, DOI; pg. 19 (Lebowitz, J.).
Petitioner appeared in Queens Family Court to file a petition for custody of his two daughters, but on the next court date the petition was dismissed for failure of both parties to appear in court. After investigation, the court discovered that petitioner had filed a total of eight family court petitions against respondent in Queens Family Court within a 16-month period. Five were for temporary Orders of Protection, two were for custody and one for visitation. All but one of the petitions were dismissed due to petitioner's failure to appear. The one petition that was not dismissed for non-appearance was then dismissed due to the insufficiency of the allegations.
The court here expressed its belief that petitioner's pattern of conduct might well rise to the level of frivolous conduct and, as such, could be an appropriate case for the imposition of sanctions, despite the Family Court's historical reluctance to impose such penalties. The court noted that 22 NYCRR ' 130-1.1 specifically excludes from its discretion the authority to impose sanctions for frivolous conduct under Article 8, which covers family offenses. But although it is constrained from imposing sanctions and fees against the petitioner for his conduct in bringing abuse charges, the court found that no rules prohibit it from reviewing petitioner's conduct under these cases and determining that they are part of a comprehensive pattern of harassment that can be directly sanctioned under his Article 6 petition. Because petitioner is entitled to a hearing before imposition of sanctions, a hearing on the matter was set for Dec. 5.
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