*NEW* MR. CORLETTA EARNS RARE DISMISSAL ON MOTION IN FAMILY OFFENSE CASE

Obtaining Orders of Protection on ex-parte applications with flimsy allegations of threats is a disturbing and increasing phenomenon, used mostly by women, in Family Court, where such “proof” is often approved by Judges and domestic violence advocates.  The purpose is often to gain quick and easy leverage in underlying divorce and custody disputes.

Dismissal on motions is rare.  Mr. Corletta, by advocating for his client, achieved such a dismissal in G.B. v. K.B. (Monroe Cty. Family Ct., 8/6/10).  In that case, there was an argument over the telephone between husband and wife, who had separated, where the wife blurted out angry words to the effect that she wished her husband “were dead”.  The husband, angry at his wife for separating, and seeking to obtain a procedural advantage and leverage, went to Family Court and obtained an Order of Protection ex-parte, keeping the wife, who Mr. Corletta represented, away from her children, although there was no allegation of any danger to them, or that they even heard this alleged conversation.

Such tactics are commonly used in Family Court to exert leverage, and are sanctioned, based upon the position of domestic violence advocates that every threat is real, no matter if blurted out in anger during the course of an argument, or whatever the circumstances.  Such a “black and white” approach creates unnecessary litigation and turns the Court into the referee of every argument.

Mr. Corletta, citing caselaw holding that such angry outbursts are Constitutionally protected speech and do not constitute threats or fighting words, obtained a dismissal of this Petition; thereby opening the lines of communication between a mother and her children. The case underlines the importance of examining such Petitions for conclusory and isolated outbursts like this, which do not qualify as harassment or disorderly conduct under the criminal statutes, and in turn do not qualify as “family offenses” under the Family Court Act.

*NEW* KNOWLEDGE OF THE LAW DUMPS SUPPORT MODIFICATION PETITION

In tough economic times, child support payors, usually men, are plagued by frequent support modification Petitions filed by non-working or marginally employed mothers, looking for extra income in lieu of obtaining full-time or better paying employment.  They often believe they are “entitled to” increases in child support if the child support payors income increases.  This is not the law if the child support was previously agreed upon between the parties.

Such was the case in D.M. v. S.C.(Monroe County Family Court, 7/7/10).  Mr. Corletta’s client is the father of three.  He had a child when he was young; out of wedlock with a woman he met before he married.  He agreed to pay child support, which was deducted from his wages, at the mother’s request.

The support was previously increased administratively due to a cost of living adjustment, without objection by him.  The child’s mother repeatedly badgered him for more money and threatened him with Court action if he did not agree.  The mother also claimed the child as a dependency exemption, although the underlying Order specifically granted Mr. Corletta’s client the dependency exemption, again threatening him and claiming a “verbal agreement”.  Mr. Corletta’s client repeatedly gave her extra money to assuage her threats.

Not to be deterred, the mother still filed a “Modification” Petition and stated in open Court she wanted her “17% of his pay”.  Reviewing the Petition when it was served, Mr. Corletta noticed it did not allege any specific grounds for modification, as required by the caselaw, which must be proven before modification is granted. 

In other words, the law requires a specific, not generalized, showing of increased needs of the child since the date of the last order. 

Mr. Corletta immediately filed and served a motion to dismiss.  At the first Court appearance, the Support Magistrate agreed, dismissing the Petition out of hand, and telling the mother, whose attitude was incredulous and belligerent, that she could not get a modification just for the asking, but had to make a particularized showing of increased needs of the child.  Her Petition simply stated she wanted more money.  The mother, not listening to the Support Magistrate, stomped out of the room and said she would “just file another Petition”; a problem which seems to be endemic in Family Court.  She also would not listen to any settlement proposals. 

The case illustrates that knowledge of the law can provide some defense to harassing Petitions from individuals who are unwilling to go out and attempt to share in the burden of supporting a child, electing to attempt to obtain money through intimidation and the Court process.  It also highlights another problem with the Family Court; the ease of which such individuals can file meritless Petitions, without any preliminary screening, costing people time and money.  Despite the fact that Mr. Corletta’s client “prevailed”, he still had to suffer time lost from work and payment of attorney’s fees to defend this meritless and defective Petition.