Dealing with Emotions and the Law

Criminal Prosecution

Spouses in heated divorce contests are typically eager to identify criminal activity by the other spouse and press for incarceration. Assume, for example, that a spouse has committed unquestionable perjury or forgery. Perhaps your client's spouse is even guilty of bigamy for remarrying, religiously or civilly, without the benefit of a civil divorce decree. May the “righteous” spouse seek the relief of imprisonment within the divorce action? In Kinberg v. Kinberg, 48 AD3d 387 (1st Dept. 2008), the wife sought the husband's imprisonment and a fine for, inter alia, his perjury and bigamy. The Appellate Division cited to County Law, ' 700 and Pietra v. State, 71 N.Y.2d 792, (1988), for the proposition that, with few exceptions, the legislature has delegated the responsibility for prosecuting those accused of crime solely to the District Attorneys. Her allegations were, therefore, dismissed for failure to state a cause of action.

Timely Stock Transfers

Judgments or agreements incorporated into judgments often divide stock in-kind between the parties, with the title holder being required to transfer a specific number of shares to the other spouse. Not surprisingly, not every title holder complies, often requiring judicial assistance to compel compliance. Can the non-titled spouse recover for damages resulting from the loss of value of stock as a result of the titled spouse's failure to timely effect its transfer under an settlement agreement? Kinberg v. Kinberg, 59 AD3d 236 (1st Dept. 2009), declined to dismiss the action by the aggrieved spouse.

The Non-Custodial Parent's Rights: Medical and Educational Decisions

A common dilemma of non-custodial parents is the custodial parent's hurtful denial of access to the children's academic or medical records. Typically, the school or the medical provider is told that either the agreement or the judgment does not provide the non-custodial parent with the right to such information. The Court of Appeals, in Fuentes v. Board of Educ. of City of New York, 12 NY3d 309 (2009), resolved this issue definitively in favor of the non-custodial parent, stating that it is his or her absolute right to access such records. Nevertheless, the non-custodial parent may not make decisions on behalf of the children if that right was not specifically accorded by either agreement or judicial order.

It is now well settled in the Appellate Division that, absent specific provisions in a separation agreement, custody order, or divorce decree, the custodial parent has sole decision-making authority with respect to practically all aspects of the child's upbringing. Note the distinction between a noncustodial parent's right to participate in a child's education and the right to control educational decisions. Generally, there is nothing that prevents a non-custodial parent (even one without any decision-making authority) from requesting information about, keeping apprised of, or otherwise remaining interested in the child's educational progress. Such parental involvement is to be encouraged. However, unless the custody order expressly permits joint decision-making authority or designates particular authority with respect to the child's education, a non-custodial parent has no right to control such decisions. This authority properly belongs to the custodial parent.

Leading Questions

It is widely believed that when a party calls the adverse party as a witness on his or her direct case leading questions may automatically be asked throughout the questioning because the adverse party is, by definition, a hostile witness. This assumption is inaccurate. The right to conduct direct examination of an adverse party in cross-examination manner rests within the discretion of the court, as ample authority holds. Ferri v. Ferri, 60 AD3d 625 (2nd Dept. 2009), stated that while an adverse party is a hostile witness leading questions are discretionary. The court stated that, when “an adverse party is called as a witness, it may be assumed that such adverse party is a hostile witness, and, in the discretion of the court, direct examination may assume the nature of cross examination by the use of leading questions.”

Impeachment of One's Own Witness

Ferri also addressed CPLR 4514, covering impeachment of a witness by prior inconsistent statement, which provides: “In addition to impeachment in the manner permitted by common law, any party may introduce proof that any witness has made a prior statement inconsistent with his testimony if the statement was made in a writing subscribed by him or was made under oath.” The word “any” means precisely that, including one's own witness. However, while a non-party witness called as one's own witness may not be impeached with a prior oral statement, an adverse party witness may be impeached with prior oral statements not only if the elements of CPLR 4514 are met, but also in other cases, because such oral statements are admissions of a party.

Audio and Photo Evidence

Matrimonial litigation has undoubtedly spurred the video and audio recording industries because embattled litigants commonly try to capture one another in acts of “something” that can be flashed before the court. This is especially true in the preservation of evidence associated with orders of protection. Admission of such evidence is routinely challenged because of the proponent's failure to have demonstrated the chain of custody. Significantly, a chain of custody is not a predicate for the introduction of audiotapes and photographs into evidence. All that is necessary is testimony by anyone who can authenticate the accuracy of their contents, irrespective of whether or not he or she recorded or photographed the event.

In Hirsh v. Stern 74 AD3d 967 (2nd Dept. 2010), the petitioner testified that the appellant had threatened her physical safety on several occasions, which the appellant denied. The appellant attempted to offer into evidence an audiotape of a conversation between him and the petitioner that took place on one of the days she alleged he had threatened her. The appellant testified that he had recorded the conversation using a pocket cassette recorder, that the recording accurately portrayed the conversation on the subject date, and that the tape established that he never threatened or raised his voice to the petitioner during the subject conversation. The petitioner challenged the admission of the tape on the ground that a proper foundation had not been laid.

The Appellate Division, citing the holding in People v. Ely, 68 N.Y.2d 520, stated that a “chain of custody … [is] not a requirement as to tape recordings.” It went on to quote People v. McGee, 49 NY2d 48, cert. denied sub nom, for the proposition that proof that the audiotape had not been altered was properly established by the appellant, “a participant to the conversation who testifie[d] that the conversation ha[d] been accurately and fairly reproduced.” Since the Supreme Court erred in depriving the appellant of his right to place admissible evidence supporting his defense before the fact finder, and since the alleged information on the tape was critical to the appellant's defense, the appellant was entitled to a new hearing on whether an order of protection should be issued.

The Ely decision, cited in Hirsh, describes the several ways to lay a foundation for audio recordings. There, the court of appeals noted that the admissibility of tape-recorded conversation requires proof of the accuracy or authenticity of the tape by “clear and convincing evidence” establishing “that the offered evidence is genuine and that there has been no tampering with it.” The necessary foundation may be provided through:

• Testimony of a participant in the conversation that it is a complete and accurate reproduction of the conversation and has not been altered (People v. McGee, 49 NY2d 48, 59, cert denied sub nom; Waters v. New York, 446 U.S. 942; U.S. v. Sandoval, (D.C.Cir.), 709 F.2d 1553, 1555);
• Testimony of a witness to the conversation or to its recording, such as the machine operator, to the effect that the recorded conversation is a complete and accurate reproduction of the discussion that has not been altered (United States v. Hassell, (8th Cir.), 547 F2d 1048, 1054, cert. denied sub nom; McIntosh v. U.S., 430 U.S. 919); or
• Testimony of a participant in the conversation, together with proof by an expert witness that after analysis of the tapes for splices or alterations there is, in his or her opinion, no indication of either (U.S. v. Craig, (7th Cir.), 573 F.2d 455, 477 478, cert. denied 439 U.S. 820).

Similarly, a photo or videotape may be admitted in a variety of ways. In People v. Patterson, 93 N.Y.2d 80, 688 NYS2d 101 (1999), the court of appeals stated that a videotape may be authenticated by the testimony of a witness to the recorded events or of an operator or installer or maintainer of the equipment that the videotape accurately represents the subject matter depicted (People v. Byrnes, 33 NY2d 343). Testimony, expert or otherwise, may also establish that a videotape “truly and accurately represents what was before the camera” (Id. at 349, 352 N.Y.S.2d 913). Evidence establishing the chain of custody of the videotape may additionally buttress its authenticity and integrity, and even allow for acceptable inferences of reasonable accuracy and freedom from tampering (cf., People v. Ely, supra).

Judicial Favoritism Toward Pro Se Litigants

A common complaint in matrimonial matters is that courts bend over backwards in favor of the pro se litigant, according him or her latitude far beyond that granted to represented parties. Pro se litigants are often permitted to enter flawed and even incompetent evidence into the record where an attorney's efforts to do so would have been rebuked. Bush v. Bush, 74 A.D.3d 1448, 902 N.Y.S.2d 697 (3rd Dept., 2010), leave to appeal denied, 15 N.Y.3d 711, 938 N.E.2d 1010, 912 N.Y.S.2d 575 (2010), involving a pro se litigant, stated that a court “[c]ourts are obligated to 'keep the respective parties focused upon a succinct presentation of evidence relevant to the issues to be decided [and to] … insure an orderly and expeditious trial.'”

Conclusion

Counsel must always be on guard to defend the divorcing litigant on both fronts ' the legal and the emotional ' because they are inextricably intertwined. Fuentes is an exceptional bit of magic that should be glued to counsel's briefcase. A copy to the presiding justice during conference or oral argument can save motion practice and provide immediate relief. The other cases can help counsel deliver the message to the court in a manner that will be upheld on appeal. The most effective way to be a successful litigator is to think that you are trying your case to an appellate court and ask yourself, “Will my evidentiary delivery system withstand scrutiny by an appellate panel?”

Elliott Scheinberg, a member of this newsletter's Board of Editors, is a consultant to the matrimonial bar for appeals, trial briefs and memoranda, and motions.

Unique to matrimonial litigation is the collision of law and emotion. Malevolence and other primal drives often fuel the process, whether deservedly or not. Irrespective of its origin, emotion must be defused (or backed up) with law.

Furthermore, a common dilemma attendant to matrimonial litigation, which has been bemoaned by appellate justices from the First Department, is that the matrimonial bar, unlike the criminal or personal injury bar, lacks an intimate knowledge of the rules of evidence. The most oft-heard canard in the matrimonial courtroom is: “There's no jury. I'll take it for what it's worth.” The truth is that the rules of evidence are very much alive in matrimonial litigation. Knowing how to present a case is as important as knowing what to present.

When emotional issues manifest themselves during the life of a divorce, keeping the case in line with the law and presenting the evidence properly become highly important. Getting carried away with expedient means to attain the client's ends could lead to loss on appeal. This article presents a few of the emotional and evidentiary issues that often manifest themselves during the life of a divorce.

Criminal Prosecution

Spouses in heated divorce contests are typically eager to identify criminal activity by the other spouse and press for incarceration. Assume, for example, that a spouse has committed unquestionable perjury or forgery. Perhaps your client's spouse is even guilty of bigamy for remarrying, religiously or civilly, without the benefit of a civil divorce decree. May the “righteous” spouse seek the relief of imprisonment within the divorce action? In Kinberg v. Kinberg, 48 AD3d 387 (1st Dept. 2008), the wife sought the husband's imprisonment and a fine for, inter alia , his perjury and bigamy. The Appellate Division cited to County Law, ' 700 and Pietra v. State , 71 N.Y.2d 792, (1988), for the proposition that, with few exceptions, the legislature has delegated the responsibility for prosecuting those accused of crime solely to the District Attorneys. Her allegations were, therefore, dismissed for failure to state a cause of action.

Timely Stock Transfers

Judgments or agreements incorporated into judgments often divide stock in-kind between the parties, with the title holder being required to transfer a specific number of shares to the other spouse. Not surprisingly, not every title holder complies, often requiring judicial assistance to compel compliance. Can the non-titled spouse recover for damages resulting from the loss of value of stock as a result of the titled spouse's failure to timely effect its transfer under an settlement agreement? Kinberg v. Kinberg , 59 AD3d 236 (1st Dept. 2009), declined to dismiss the action by the aggrieved spouse.

The Non-Custodial Parent's Rights: Medical and Educational Decisions

A common dilemma of non-custodial parents is the custodial parent's hurtful denial of access to the children's academic or medical records. Typically, the school or the medical provider is told that either the agreement or the judgment does not provide the non-custodial parent with the right to such information. The Court of Appeals, in Fuentes v. Board of Educ. of City of New York , 12 NY3d 309 (2009), resolved this issue definitively in favor of the non-custodial parent, stating that it is his or her absolute right to access such records. Nevertheless, the non-custodial parent may not make decisions on behalf of the children if that right was not specifically accorded by either agreement or judicial order.

It is now well settled in the Appellate Division that, absent specific provisions in a separation agreement, custody order, or divorce decree, the custodial parent has sole decision-making authority with respect to practically all aspects of the child's upbringing. Note the distinction between a noncustodial parent's right to participate in a child's education and the right to control educational decisions. Generally, there is nothing that prevents a non-custodial parent (even one without any decision-making authority) from requesting information about, keeping apprised of, or otherwise remaining interested in the child's educational progress. Such parental involvement is to be encouraged. However, unless the custody order expressly permits joint decision-making authority or designates particular authority with respect to the child's education, a non-custodial parent has no right to control such decisions. This authority properly belongs to the custodial parent.

Leading Questions

It is widely believed that when a party calls the adverse party as a witness on his or her direct case leading questions may automatically be asked throughout the questioning because the adverse party is, by definition, a hostile witness. This assumption is inaccurate. The right to conduct direct examination of an adverse party in cross-examination manner rests within the discretion of the court, as ample authority holds. Ferri v. Ferri , 60 AD3d 625 (2nd Dept. 2009), stated that while an adverse party is a hostile witness leading questions are discretionary. The court stated that, when “an adverse party is called as a witness, it may be assumed that such adverse party is a hostile witness, and, in the discretion of the court, direct examination may assume the nature of cross examination by the use of leading questions.”

Impeachment of One's Own Witness

Ferri also addressed CPLR 4514, covering impeachment of a witness by prior inconsistent statement, which provides: “In addition to impeachment in the manner permitted by common law, any party may introduce proof that any witness has made a prior statement inconsistent with his testimony if the statement was made in a writing subscribed by him or was made under oath.” The word “any” means precisely that, including one's own witness. However, while a non-party witness called as one's own witness may not be impeached with a prior oral statement, an adverse party witness may be impeached with prior oral statements not only if the elements of CPLR 4514 are met, but also in other cases, because such oral statements are admissions of a party.

Audio and Photo Evidence

Matrimonial litigation has undoubtedly spurred the video and audio recording industries because embattled litigants commonly try to capture one another in acts of “something” that can be flashed before the court. This is especially true in the preservation of evidence associated with orders of protection. Admission of such evidence is routinely challenged because of the proponent's failure to have demonstrated the chain of custody. Significantly, a chain of custody is not a predicate for the introduction of audiotapes and photographs into evidence. All that is necessary is testimony by anyone who can authenticate the accuracy of their contents, irrespective of whether or not he or she recorded or photographed the event.

In Hirsh v. Stern 74 AD3d 967 (2nd Dept. 2010), the petitioner testified that the appellant had threatened her physical safety on several occasions, which the appellant denied. The appellant attempted to offer into evidence an audiotape of a conversation between him and the petitioner that took place on one of the days she alleged he had threatened her. The appellant testified that he had recorded the conversation using a pocket cassette recorder, that the recording accurately portrayed the conversation on the subject date, and that the tape established that he never threatened or raised his voice to the petitioner during the subject conversation. The petitioner challenged the admission of the tape on the ground that a proper foundation had not been laid.

The Appellate Division, citing the holding in People v. Ely , 68 N.Y.2d 520, stated that a “chain of custody … [is] not a requirement as to tape recordings.” It went on to quote People v. McGee , 49 NY2d 48, cert. denied sub nom, for the proposition that proof that the audiotape had not been altered was properly established by the appellant, “a participant to the conversation who testifie[d] that the conversation ha[d] been accurately and fairly reproduced.” Since the Supreme Court erred in depriving the appellant of his right to place admissible evidence supporting his defense before the fact finder, and since the alleged information on the tape was critical to the appellant's defense, the appellant was entitled to a new hearing on whether an order of protection should be issued.

The Ely decision, cited in Hirsh, describes the several ways to lay a foundation for audio recordings. There, the court of appeals noted that the admissibility of tape-recorded conversation requires proof of the accuracy or authenticity of the tape by “clear and convincing evidence” establishing “that the offered evidence is genuine and that there has been no tampering with it.” The necessary foundation may be provided through:

• Testimony of a participant in the conversation that it is a complete and accurate reproduction of the conversation and has not been altered ( People v. McGee , 49 NY2d 48, 59, cert denied sub nom; Waters v. New York , 446 U.S. 942; U.S. v. Sandoval, (D.C.Cir.), 709 F.2d 1553, 1555);
• Testimony of a witness to the conversation or to its recording, such as the machine operator, to the effect that the recorded conversation is a complete and accurate reproduction of the discussion that has not been altered (United States v. Hassell, (8th Cir.), 547 F2d 1048, 1054, cert. denied sub nom; McIntosh v. U.S. , 430 U.S. 919); or
• Testimony of a participant in the conversation, together with proof by an expert witness that after analysis of the tapes for splices or alterations there is, in his or her opinion, no indication of either (U.S. v. Craig, (7th Cir.), 573 F.2d 455, 477 478, cert. denied 439 U.S. 820).

Similarly, a photo or videotape may be admitted in a variety of ways. In People v. Patterson, 93 N.Y.2d 80, 688 NYS2d 101 (1999), the court of appeals stated that a videotape may be authenticated by the testimony of a witness to the recorded events or of an operator or installer or maintainer of the equipment that the videotape accurately represents the subject matter depicted ( People v. Byrnes , 33 NY2d 343). Testimony, expert or otherwise, may also establish that a videotape “truly and accurately represents what was before the camera” (Id. at 349, 352 N.Y.S.2d 913). Evidence establishing the chain of custody of the videotape may additionally buttress its authenticity and integrity, and even allow for acceptable inferences of reasonable accuracy and freedom from tampering (cf., People v. Ely, supra).

Judicial Favoritism Toward Pro Se Litigants

A common complaint in matrimonial matters is that courts bend over backwards in favor of the pro se litigant, according him or her latitude far beyond that granted to represented parties. Pro se litigants are often permitted to enter flawed and even incompetent evidence into the record where an attorney's efforts to do so would have been rebuked. Bush v. Bush , 74 A.D.3d 1448, 902 N.Y.S.2d 697 (3rd Dept., 2010), leave to appeal denied, 15 N.Y.3d 711, 938 N.E.2d 1010, 912 N.Y.S.2d 575 (2010), involving a pro se litigant, stated that a court “[c]ourts are obligated to 'keep the respective parties focused upon a succinct presentation of evidence relevant to the issues to be decided [and to] … insure an orderly and expeditious trial.'”

Conclusion

Counsel must always be on guard to defend the divorcing litigant on both fronts ' the legal and the emotional ' because they are inextricably intertwined. Fuentes is an exceptional bit of magic that should be glued to counsel's briefcase. A copy to the presiding justice during conference or oral argument can save motion practice and provide immediate relief. The other cases can help counsel deliver the message to the court in a manner that will be upheld on appeal. The most effective way to be a successful litigator is to think that you are trying your case to an appellate court and ask yourself, “Will my evidentiary delivery system withstand scrutiny by an appellate panel?”

Elliott Scheinberg, a member of this newsletter's Board of Editors, is a consultant to the matrimonial bar for appeals, trial briefs and memoranda, and motions.