Decisions of Interest

Legally a Competent Adult, But Guardian Appointment Is in Her Best Interest

A panel of the Appellate Division, Second Department, reversed a Family Court judge's dismissal of a guardianship petition brought by a 20-year-old immigrant because the appointment of a guardian was authorized by the legislature's 2008 amendment to Family Court Act ' 661 and the appointment would be in the woman's best interest. Trudy-Ann W. v. Joan W., 2010-02617 (2d Dept., 5/10/10) (Mastro, J.P., Miller, Leventhal and Belen JJ.).

This was the first appellate decision dealing with ' 661, which extended to Family Courts the ability to appoint guardians for young adults aged 18 to 21. Previously, guardianships were authorized only for minors. Trudy-Ann W., a 20-year-old mother of two who came to the United States from Jamaica in 2007, petitioned the court in January to have her mother's sister, Alcie S., named her guardian for the purpose of making medical decisions for her. She testified that her father had abandoned her and her mother had abused her. Trudy-Ann also sought an order making a declaration of specific findings that would support an application for “special immigrant juvenile status.” A “special immigrant” must be under 21, unmarried and “dependent upon a juvenile court or legally committed to an individual appointed by a State or juvenile court.” Family Court Judge Tanya Kennedy denied the petition on the ground that Trudy-Ann had failed to establish a basis for relief. Specifically, the court indicated that Trudy-Ann seemed capable of making her own medical decisions, as she was already doing so for her own two children.

On appeal, a Second Department panel found that because “Trudy-Ann is under 21 years of age, she is an infant for purposes of this guardianship proceeding.” It went on to state that “[w]hen considering guardianship appointments, the infant's best interest is paramount. The order denying the guardianship petition and dismissing the proceeding, however, is devoid of any references to Trudy-Ann's best interest.” Failure to consider the petitioner's best interests meant that Family Court's decision was made without the proper basis. “Based upon our 'independent factual review of the complete record,' which includes, inter alia, two hearing transcripts and an affidavit from Trudy-Ann, it is evident that her best interest would be served by the appointment of Alcie S. as her guardian,” the panel held. Also granted was Trudy-Ann's motion for an order declaring specific findings that will help her in her application for special immigrant juvenile status.

Foot-Dragging Husband Must Pay Counsel Fees

Despite the fact that the defendant wife had an adequate income from which to pay her own attorney fees in this custody dispute, Supreme Court, Suffolk County, ordered her husband to pay a portion of her legal expenses, as the husband's delaying tactics had unnecessarily increased the costs of litigation. S v. S, 18216/06 (Sup. Ct., Suffolk Cty., 5/18/10) (Cohen, J.).

The defendant wife sought counsel fees, claiming that her husband had caused extensive delays by filing affidavits with false income statements and by spoliating computer records involving his business. The husband countered that his wife had created her own unfortunate financial situation “by obligating me to fight her to have any contact with our children.” He contended her actions caused him to incur over $70,000 in legal expenses.

The court noted that Domestic Relations Law ' 237(a) provides for the award of fees to a spouse if such is necessary to permit him or her to carry on or defend an action. The purpose of the law is to prevent the monied spouse from wearing down or financially punishing the non-monied spouse by prolonging litigation. The court found that although the plaintiff had a better earning capacity, his wife also had sufficient earning capacity. Still, the record presented an adequate basis from which to find that the husband had engaged in delaying tactics that had run up costs for the wife. Further, the court noted that even when the parties are on relatively equal financial footing, delaying conduct will provide a basis to award attorney's fee. See Quinn v. Quinn, ___ AD3d ___, 2010 NY Slip Op 04164. Here, the equities tipped in favor of granting an award of counsel fees of $48,000 to the wife.

Legally a Competent Adult, But Guardian Appointment Is in Her Best Interest

A panel of the Appellate Division, Second Department, reversed a Family Court judge's dismissal of a guardianship petition brought by a 20-year-old immigrant because the appointment of a guardian was authorized by the legislature's 2008 amendment to Family Court Act ' 661 and the appointment would be in the woman's best interest. Trudy-Ann W. v. Joan W., 2010-02617 (2d Dept., 5/10/10) (Mastro, J.P., Miller, Leventhal and Belen JJ.).

This was the first appellate decision dealing with ' 661, which extended to Family Courts the ability to appoint guardians for young adults aged 18 to 21. Previously, guardianships were authorized only for minors. Trudy-Ann W., a 20-year-old mother of two who came to the United States from Jamaica in 2007, petitioned the court in January to have her mother's sister, Alcie S., named her guardian for the purpose of making medical decisions for her. She testified that her father had abandoned her and her mother had abused her. Trudy-Ann also sought an order making a declaration of specific findings that would support an application for “special immigrant juvenile status.” A “special immigrant” must be under 21, unmarried and “dependent upon a juvenile court or legally committed to an individual appointed by a State or juvenile court.” Family Court Judge Tanya Kennedy denied the petition on the ground that Trudy-Ann had failed to establish a basis for relief. Specifically, the court indicated that Trudy-Ann seemed capable of making her own medical decisions, as she was already doing so for her own two children.

On appeal, a Second Department panel found that because “Trudy-Ann is under 21 years of age, she is an infant for purposes of this guardianship proceeding.” It went on to state that “[w]hen considering guardianship appointments, the infant's best interest is paramount. The order denying the guardianship petition and dismissing the proceeding, however, is devoid of any references to Trudy-Ann's best interest.” Failure to consider the petitioner's best interests meant that Family Court's decision was made without the proper basis. “Based upon our 'independent factual review of the complete record,' which includes, inter alia, two hearing transcripts and an affidavit from Trudy-Ann, it is evident that her best interest would be served by the appointment of Alcie S. as her guardian,” the panel held. Also granted was Trudy-Ann's motion for an order declaring specific findings that will help her in her application for special immigrant juvenile status.

Foot-Dragging Husband Must Pay Counsel Fees

Despite the fact that the defendant wife had an adequate income from which to pay her own attorney fees in this custody dispute, Supreme Court, Suffolk County, ordered her husband to pay a portion of her legal expenses, as the husband's delaying tactics had unnecessarily increased the costs of litigation. S v. S, 18216/06 (Sup. Ct., Suffolk Cty., 5/18/10) (Cohen, J.).

The defendant wife sought counsel fees, claiming that her husband had caused extensive delays by filing affidavits with false income statements and by spoliating computer records involving his business. The husband countered that his wife had created her own unfortunate financial situation “by obligating me to fight her to have any contact with our children.” He contended her actions caused him to incur over $70,000 in legal expenses.

The court noted that Domestic Relations Law ' 237(a) provides for the award of fees to a spouse if such is necessary to permit him or her to carry on or defend an action. The purpose of the law is to prevent the monied spouse from wearing down or financially punishing the non-monied spouse by prolonging litigation. The court found that although the plaintiff had a better earning capacity, his wife also had sufficient earning capacity. Still, the record presented an adequate basis from which to find that the husband had engaged in delaying tactics that had run up costs for the wife. Further, the court noted that even when the parties are on relatively equal financial footing, delaying conduct will provide a basis to award attorney's fee. See Quinn v. Quinn , ___ AD3d ___, 2010 NY Slip Op 04164. Here, the equities tipped in favor of granting an award of counsel fees of $48,000 to the wife.