Decisions of Interest

Hearing on Neglect Not Required When Custody Rights Abandoned

The petitioning human services department should not have been ordered to file a petition alleging custodial neglect as a prerequisite to proceeding with its plans to make a permanent placement of the child because consent of the child's custodian to his placement was unnecessary due to evidence that she intended to forgo her custodial rights. Matter of Daryl D. Monroe County Department of Human and Health Services, 2004 N.Y. App. Div. LEXIS 6203, CAF 04-00151 (4th Dept. 4/30/04) (Hurlbutt, J.P., Scudder, Kehoe, Gorski and Hayes, JJ.).

In June 1998, the subject child's maternal grandmother was granted custody after the child's parents failed to appear on her custody petition and a default hearing was held. In July 1998, however, the child was placed in foster care and has not lived with the maternal grandmother since that time. A neglect petition was filed against the maternal grandmother, but this matter was never judicially concluded. While the neglect issue was still pending, the child's mother surrendered custody to petitioner, the Monroe County Department of Human and Health Services. The child was placed in foster care with his paternal great grandmother. Petitioner filed a petition in December 2003 requesting Family Court to hold a permanency hearing pursuant to Family Ct Act ' 1055-a to approve petitioners to permanently place the child with his paternal great grandmother. However, because the maternal grandmother still had legal custody of the child, the court ordered petitioner to file a petition alleging that the maternal grandmother has permanently neglected the child. This, the court found, was error because petitioner may establish in the adoption proceeding that the consent of “any other person having custody of the child,” including the maternal grandmother, is not required based on her “evincing an intent to forego … her parental or custodial rights and obligations as manifested by … her failure for a period of six months to visit the child and communicate with the child or person having legal custody of the child, although able to do so” (Domestic Relations Law ' 111 (2)(a).

Boyfriend Who's Not Child's Biological Father Pays No Child Support

Defendant's motion for summary judgment dismissing a complaint seeking child support against him was granted, as the child in question was born out of wedlock to the defendant's girlfriend, it was not defendant's biological child, and the medical consent form defendant signed prior to plaintiff's artificial insemination was not a contract between himself and plaintiff. Herman v. Lennon, Index No. 2630/2002, 2004 N.Y. Misc. LEXIS 454 (Sup. Ct., Dutchess Cty. 4/23/04) (Sproat, J.).

This breach of contract action arose out of defendant's alleged “failure to provide financial or other support” for plaintiff's child, the product of her artificial insemination by an anonymous donor. At the time plaintiff was artificially inseminated, plaintiff and defendant were girlfriend and boyfriend; they are not now married, nor have they ever been married to each other. Despite this, plaintiff claimed that defendant's signing of a medical provider's “Consent for Artificial Insemination” form created an enforceable contract against the defendant for child support. Plaintiff also asked the court to find an implied contract existed between plaintiff and defendant.

The court found that the consent form on which plaintiff relied was not a contract between herself and the defendant, but rather a medical consent form. Further, even if the medical consent form and/or defendant's conduct could be construed as an agreement between plaintiff and defendant, that agreement would be void for vagueness and unenforceable.

Name-Calling Mother's Appeal Possibly Frivolous

The parties were ordered to show cause why the mother and her counsel should or should not be sanctioned for bringing a frivolous appeal, as the allegations in the mother's brief and those made by her attorney in court appeared to be unsupported by facts. In the Matter of Wecker v D'Ambrosio, No. 2002-09753 773 N.Y.S.2d 891; 2004 N.Y. App. Div. LEXIS 3881 (2d Dept. 4/5/04) (Ritter, J.P, S. Miller, Luciano, and H. Miller, JJ.).

In a proceeding pursuant to Family Court Act article 6 to modify the custody provisions of a judgment of divorce, the mother appealed from so much of an order of the Family Court, Suffolk County (Lynaugh, J.), entered Oct. 3, 2002, as granted the petition and awarded the father custody of the parties' son. The Second Department affirmed, in deference to the lower court's superior fact-finding position and because the record fully supported the trial court's decision. In addition, on the court's own motion, the parties were directed to show cause why an order should or should not be made imposing sanctions and/or costs against the mother and her counsel pursuant to 22 NYCRR 130-1.1(c) for bringing this appeal. The court cited as the basis for its motion the mother's brief on appeal in which her counsel called the father a misfit, a miscreant, a lazy lout and a psychopath. In addition, after the father testified that he didn't keep a checking account for his jewelry business, the mother's counsel suggested, without presenting any supporting evidence, that the father was fencing stolen jewelry. The mother's attorney also claimed the father had paid the court-appointed forensic psychologist to favor him in the report to the court and accused the lower court judge of making a “laughable” and “irrational” decision that probably “resulted from corruption.”

First Marriage Presumed Invalid for Lack of Contrary Proof

A defendant wife's counterclaim for annulment of a marriage she claimed was void due to her husband's failure to end a previous marriage was found without merit, as defendant failed adequately to rebut the presumption that the second marriage was valid. Dinsenbacher v. Dowis, N.Y.L.J. Vol. 84; Pg. 19, 5/3/04 (Sup. Ct., Suffolk Cty.) (Whelan, J.).

Defendant admitted that she was informed by plaintiff prior to their marriage that he had previously married, as a lark, a Brenda Frutschy, in a ceremony in Las Vegas. Defendant stated that plaintiff informed her that his previous marriage was not legal due to the fact that Frutschy was already married, at that time, to Mr. Frutschy in the State of Ohio. Plaintiff acknowledged that there was no divorce or annulment of the June 22, 1985 Las Vegas marriage, but it was his position that it was a void marriage to begin with and there was no reason to seek a judicial declaration of such.

Citing Seidel v. Crown Industries, 132 AD2d 729, 517 NYS2d 310 (3d Dept. 1987), the court noted that, faced with a case where a party participates in two marriage ceremonies, the presumption favoring validity of the second ceremonial marriage is stronger than the presumption that the first marriage continued. Thus, the party seeking to uphold the validity of the first marriage bears the burden of rebutting the presumption in favor of the second marriage, a burden that can only be overcome by clear and convincing evidence disproving every reasonable possibility that would validate claimant's marriage. Here, although defendant offered proof that defendant's Las Vegas marriage was not terminated by divorce in Nevada, Ohio or New York, she offered no proof that Brenda Frutschy was alive at the time of defendant's 1992 marriage to plaintiff. Moreover, although defendant admitted that she was aware of plaintiff's claim that the prior marriage was a nullity prior to their marriage and was aware that the reason given for such a claim was the fact that Frutschy was previously married in the State of Ohio on May 18, 1974, she offered no evidence from the State of Ohio as to whether Frutschy was in fact still married to Richard H. Frutschy as of the date of her own marriage to plaintiff, Feb. 16, 1992. The court here noted that she could easily have obtained this information while obtaining her proof that a divorce hadn't been granted to plaintiff and Frutschy in Ohio. Therefore, she failed to sustain her burden of rebutting by clear and convincing evidence the presumption of the validity of the second marriage.

Hearing on Neglect Not Required When Custody Rights Abandoned

The petitioning human services department should not have been ordered to file a petition alleging custodial neglect as a prerequisite to proceeding with its plans to make a permanent placement of the child because consent of the child's custodian to his placement was unnecessary due to evidence that she intended to forgo her custodial rights. Matter of Daryl D. Monroe County Department of Human and Health Services, 2004 N.Y. App. Div. LEXIS 6203, CAF 04-00151 (4th Dept. 4/30/04) (Hurlbutt, J.P., Scudder, Kehoe, Gorski and Hayes, JJ.).

In June 1998, the subject child's maternal grandmother was granted custody after the child's parents failed to appear on her custody petition and a default hearing was held. In July 1998, however, the child was placed in foster care and has not lived with the maternal grandmother since that time. A neglect petition was filed against the maternal grandmother, but this matter was never judicially concluded. While the neglect issue was still pending, the child's mother surrendered custody to petitioner, the Monroe County Department of Human and Health Services. The child was placed in foster care with his paternal great grandmother. Petitioner filed a petition in December 2003 requesting Family Court to hold a permanency hearing pursuant to Family Ct Act ' 1055-a to approve petitioners to permanently place the child with his paternal great grandmother. However, because the maternal grandmother still had legal custody of the child, the court ordered petitioner to file a petition alleging that the maternal grandmother has permanently neglected the child. This, the court found, was error because petitioner may establish in the adoption proceeding that the consent of “any other person having custody of the child,” including the maternal grandmother, is not required based on her “evincing an intent to forego … her parental or custodial rights and obligations as manifested by … her failure for a period of six months to visit the child and communicate with the child or person having legal custody of the child, although able to do so” (Domestic Relations Law ' 111 (2)(a).

Boyfriend Who's Not Child's Biological Father Pays No Child Support

Defendant's motion for summary judgment dismissing a complaint seeking child support against him was granted, as the child in question was born out of wedlock to the defendant's girlfriend, it was not defendant's biological child, and the medical consent form defendant signed prior to plaintiff's artificial insemination was not a contract between himself and plaintiff. Herman v. Lennon, Index No. 2630/2002, 2004 N.Y. Misc. LEXIS 454 (Sup. Ct., Dutchess Cty. 4/23/04) (Sproat, J.).

This breach of contract action arose out of defendant's alleged “failure to provide financial or other support” for plaintiff's child, the product of her artificial insemination by an anonymous donor. At the time plaintiff was artificially inseminated, plaintiff and defendant were girlfriend and boyfriend; they are not now married, nor have they ever been married to each other. Despite this, plaintiff claimed that defendant's signing of a medical provider's “Consent for Artificial Insemination” form created an enforceable contract against the defendant for child support. Plaintiff also asked the court to find an implied contract existed between plaintiff and defendant.

The court found that the consent form on which plaintiff relied was not a contract between herself and the defendant, but rather a medical consent form. Further, even if the medical consent form and/or defendant's conduct could be construed as an agreement between plaintiff and defendant, that agreement would be void for vagueness and unenforceable.

Name-Calling Mother's Appeal Possibly Frivolous

The parties were ordered to show cause why the mother and her counsel should or should not be sanctioned for bringing a frivolous appeal, as the allegations in the mother's brief and those made by her attorney in court appeared to be unsupported by facts. In the Matter of Wecker v D'Ambrosio, No. 2002-09753 773 N.Y.S.2d 891; 2004 N.Y. App. Div. LEXIS 3881 (2d Dept. 4/5/04) (Ritter, J.P, S. Miller, Luciano, and H. Miller, JJ.).

In a proceeding pursuant to Family Court Act article 6 to modify the custody provisions of a judgment of divorce, the mother appealed from so much of an order of the Family Court, Suffolk County (Lynaugh, J.), entered Oct. 3, 2002, as granted the petition and awarded the father custody of the parties' son. The Second Department affirmed, in deference to the lower court's superior fact-finding position and because the record fully supported the trial court's decision. In addition, on the court's own motion, the parties were directed to show cause why an order should or should not be made imposing sanctions and/or costs against the mother and her counsel pursuant to 22 NYCRR 130-1.1(c) for bringing this appeal. The court cited as the basis for its motion the mother's brief on appeal in which her counsel called the father a misfit, a miscreant, a lazy lout and a psychopath. In addition, after the father testified that he didn't keep a checking account for his jewelry business, the mother's counsel suggested, without presenting any supporting evidence, that the father was fencing stolen jewelry. The mother's attorney also claimed the father had paid the court-appointed forensic psychologist to favor him in the report to the court and accused the lower court judge of making a “laughable” and “irrational” decision that probably “resulted from corruption.”

First Marriage Presumed Invalid for Lack of Contrary Proof

A defendant wife's counterclaim for annulment of a marriage she claimed was void due to her husband's failure to end a previous marriage was found without merit, as defendant failed adequately to rebut the presumption that the second marriage was valid. Dinsenbacher v. Dowis, N.Y.L.J. Vol. 84; Pg. 19, 5/3/04 (Sup. Ct., Suffolk Cty.) (Whelan, J.).

Defendant admitted that she was informed by plaintiff prior to their marriage that he had previously married, as a lark, a Brenda Frutschy, in a ceremony in Las Vegas. Defendant stated that plaintiff informed her that his previous marriage was not legal due to the fact that Frutschy was already married, at that time, to Mr. Frutschy in the State of Ohio. Plaintiff acknowledged that there was no divorce or annulment of the June 22, 1985 Las Vegas marriage, but it was his position that it was a void marriage to begin with and there was no reason to seek a judicial declaration of such.

Citing Seidel v. Crown Industries , 132 AD2d 729, 517 NYS2d 310 (3d Dept. 1987), the court noted that, faced with a case where a party participates in two marriage ceremonies, the presumption favoring validity of the second ceremonial marriage is stronger than the presumption that the first marriage continued. Thus, the party seeking to uphold the validity of the first marriage bears the burden of rebutting the presumption in favor of the second marriage, a burden that can only be overcome by clear and convincing evidence disproving every reasonable possibility that would validate claimant's marriage. Here, although defendant offered proof that defendant's Las Vegas marriage was not terminated by divorce in Nevada, Ohio or New York, she offered no proof that Brenda Frutschy was alive at the time of defendant's 1992 marriage to plaintiff. Moreover, although defendant admitted that she was aware of plaintiff's claim that the prior marriage was a nullity prior to their marriage and was aware that the reason given for such a claim was the fact that Frutschy was previously married in the State of Ohio on May 18, 1974, she offered no evidence from the State of Ohio as to whether Frutschy was in fact still married to Richard H. Frutschy as of the date of her own marriage to plaintiff, Feb. 16, 1992. The court here noted that she could easily have obtained this information while obtaining her proof that a divorce hadn't been granted to plaintiff and Frutschy in Ohio. Therefore, she failed to sustain her burden of rebutting by clear and convincing evidence the presumption of the validity of the second marriage.