Liu v. Ruiz

• Decision Date: 09 November 2021
• Docket Number: Appeal No. 14319,Index No. 161352/20,Case No. 2021-00415
• Citation: 200 A.D.3d 68,158 N.Y.S.3d 25
• Parties: In the Matter of Nannan LIU, Petitioner-Appellant, v. Jeanette RUIZ, in her official capacity as Administrative Judge of the New York City Family Court and Stephen Langone, Respondents-Respondents.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 68

158 N.Y.S.3d 25

In the Matter of Nannan LIU, Petitioner-Appellant,

v.Jeanette RUIZ, in her official capacity as Administrative Judge of the New York City Family Court and Stephen Langone, Respondents-Respondents.

Appeal No. 14319

Index No. 161352/20

Case No. 2021-00415

Supreme Court, Appellate Division, First Department, New York.

ENTERED November 9, 2021

Orrick, Herrington & Sutcliffe LLP, New York (René Kathawala of counsel), for appellant.

Letitia James, Attorney General, New York (Grace X. Zhou and Steven C. Wu of counsel), for respondents.

Sallie Manzanet-Daniels, J.P., Angela M. Mazzarelli, Peter H. Moulton, Lizbeth González, Bahaati E. Pitt, JJ.

MAZZARELLI, J.

In ( Matter of Solla v. Berlin, 106 A.D.3d 80, 961 N.Y.S.2d 55 [1st Dept. 2013], revd on other grounds 24 N.Y.3d 1192, 1196, 3 N.Y.S.3d 748, 27 N.E.3d 462 [2015] ), this Court determined that, under the State Equal Access to Justice Act (State EAJA) ( CPLR 8600 et seq. ), the plaintiff or petitioner in an action or proceeding against the State is considered to have "prevailed" for purposes of collecting attorneys’ fees if commencement of the litigation "catalyzed" the State into voluntarily offering to him or her, in substantial part, the relief that he or she was seeking. We determined that the "catalyst theory" gave life to what we identified as the purpose behind the statute, which was "to level the playing field for those without the necessary resources to challenge State action through litigation" ( 106 N.Y.3d at 85, 961 N.Y.S.2d 55 ). The Court of Appeals reversed our decision in Solla because it found that, in that case, the State did not actually change its position. However, it explicitly declined to decide whether the catalyst theory is available as a method of recovering attorneys’ fees under the State EAJA. Here, the State argues that this Court misinterpreted the State EAJA in Solla and calls on us to reject our earlier decision. For the reasons that follow, we decline to do so. We further hold that petitioner was the prevailing party for purposes of recovering her fees and that the petition was improperly dismissed as moot.

This matter was before us once before, in Matter of N.L. v. S.L., 188 A.D.3d 491, 136 N.Y.S.3d 233 (1st Dept. 2020). According to the factual recitation in that decision, in March 2012 respondent father was ordered to pay monthly child support and a retroactive lumpsum award to petitioner mother. In December 2012, the mother filed a violation petition, asserting that the father had willfully violated the support order because he had made none of the required payments. For various reasons, the mother's petition was not decided until seven years later, on November 15, 2019, at which time the Support Magistrate found that the father had willfully failed to pay a total of $830,668.37 in child support and recommended that he be incarcerated for six months unless he paid a purge amount of $84,000 by December 16, 2019. On December 16, 2019, the father paid the purge amount, but on December 20, 2019, the mother filed objections, arguing that the amount was insufficient, and asserting that the Support Magistrate should have set a payment schedule. The Family Court denied the objections on February 3, 2020, determining that the Support Magistrate's recommendations had been "implicitly ‘confirmed’ " when the purge amount was accepted by another Family Court judge in lieu of an order of commitment, and thus denied the objections as not properly before the court ( 188 A.D.3d at 492, 136 N.Y.S.3d 233 ). The mother appealed, and this Court reversed and remanded the matter for consideration of the mother's objections on the merits.

On February 5, 2020, petitioner filed another child support violation petition in Family Court seeking to enforce child support arrears against the father. On October 15, 2020, after a hearing, the Support Magistrate issued findings of fact, concluding that the father did not willfully violate the child support order. On November 13, 2020, petitioner served her objections to the findings of fact and, on November 24, 2020, the father served his rebuttal. Pursuant to Family Court Act § 439(a), a ruling on the objections was required to be issued no more than 15 days later. However, a Family Court judge had not even been assigned to the matter when that period of time elapsed. On December 28, 2020, the mother commenced this proceeding by order to show cause, pursuant to CPLR 7803(1). The petition sought mandamus relief against Judge Jeanette Ruiz, in her official capacity as Chief Administrative Judge of the New York City Family Court (CAJ), to compel a decision on the mother's objections, in compliance with Family Court Act § 439(e). The mother asserted that because the subject child, now 15 years old, is autistic and has more than $8,000 in monthly expenses, not receiving child support was "crushing." Petitioner also sought reasonable counsel fees under CPLR 8601(a), including as "a catalyst to obtaining finally a decision on the objections."

On January 5, 2021, the same day the order to show cause was signed, Judge Valerie Pels was assigned to the underlying support proceeding. On January 19, 2021, 14 days after the matter was assigned to her, Judge Pels issued a favorable decision on the mother's pending objections, finding that the evidence established that the father had willfully violated the 2012 support order, and that an order of commitment was appropriate.

Three days later, the State, on behalf of the CAJ, cross-moved to dismiss this proceeding, on the basis that it was moot since the mother had received the requested relief, and, on the merits, that the CAJ had discretion to manage the Family Court's docket as she saw reasonably fit during the COVID-19 pandemic. The article 78 court denied the petition as academic and dismissed the proceeding as moot, and declined to award counsel fees.

Preliminarily, we must determine whether the petition was properly dismissed in light of the Family Court's having ruled on the underlying objections. The mootness doctrine ordinarily applies to deprive a court of the ability to review a case where, as here, a change in circumstances between the parties has eliminated the controversy that once existed (see Matter of Dreikausen v. Zoning Bd. of Appeals of City of Long Beach , 98 N.Y.2d 165, 172, 746 N.Y.S.2d 429, 774 N.E.2d 193 [2002] ). However, an exception exists where the case presents "(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues" ( Matter of Hearst Corp. v. Clyne , 50 N.Y.2d 707, 714-715, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980] ). The mother argues that the issue presented here is likely to occur again, and to evade review, because it is not even the first time in this proceeding that the Family Court has violated Family Court Act § 439(e) ’s 15-day rule. After all, the Family Court did not issue any determination on the mother's December 2019 objections until over one month later. The mother further notes that section 439(e) will likely be implicated again in this proceeding, given the father's willful indifference to his support obligations. The mother also asserts that in cases other than her own it is routine for the Family Court to disregard the mandatory deadline. She adds that, because of the ease with which a court can resolve a parent's attempt to force a ruling on her objections to a final support order, it is likely to evade review. Finally, she claims that the question is significant because it is critical to parents seeking to enforce support obligations that resolution be achieved in a quick and efficient manner.

We agree with the mother that the mootness exception applies. The mother has established that this is not the first time in this case that the issue has arisen. Further, the issue is not likely to be resolved without application of the exception, because the Family Court can so easily obviate it by issuing a decision on the objections, albeit after the expiration of the 15 days. Courts have applied the exception under similar circumstances (see Matter of Elizabeth C. [Omar C.] , 156 A.D.3d 193, 202, 66 N.Y.S.3d 300 [2d Dept. 2017] ; Matter of Lucinda R. [Tabitha L.] , 85 A.D.3d 78, 83-84, 924 N.Y.S.2d 403 [2d Dept. 2011] ). Those cases involved Family Court Act § 1028, which requires that the Family Court hold a hearing within three days of an application to return a child who has been removed from the home. Each case was rendered academic because in Matter of Lucinda R. the child was returned to the home after the three days had elapsed but before the court could determine the appeal, and in Matter of Elizabeth C. the father, who challenged his own removal from the home, was permitted to return after the appeal had been submitted. Nevertheless, the court found in each case that the issues presented were not uncommon in Family Court, and decided them.

We also find that the mother raises an important and substantial question. Whether the Family Court is actually mandated to decide objections to support orders within the short time frame set forth in the statute is not a trivial one. Parents relying on support payments or ordered to make them should know if finality on the amount in question will be forthcoming within days, months or years of the issuance of a final support order, since the answer might have a profound effect on choices they make. We disagree with the CAJ that in ( Matter of Martinez v. DiFiore, 188 A.D.3d 605, 132 N.Y.S.3d 744 [1st Dept. 2020], lv dismissed in part, denied in part 37 N.Y.3d 1012, 152 N.Y.S.3d 870, 174 N.E.3d 1244 [2021] ) this Court decided that a court cannot issue a writ of mandamus under the circumstances presented here. That case was distinguishable in that it dealt with ...