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Monday, November 20, 2017

The New York Matrimonial Trial Handbook, by Joel R. Brandes is now available in print and in ebook editions.







     The New York Matrimonial Trial Handbook is available on our website in a Kindle ebook edition, and in an epub ebook edition for most other ebook readers. 

     The  New York Matrimonial Trial Handbook, by Joel R. Brandes, was written for both the attorney who has never tried a matrimonial action and for the experienced litigator. It is a “how to” book for lawyers. This 836 page handbook focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a matrimonial action.  It is intended to be an aid for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial.  The handbook deals extensively with the testimonial and documentary evidence necessary to meet the burden of proof.  There are thousands of suggested questions for the examination of witnesses at trial to establish each cause of action and requests for ancillary relief, as well as for the cross-examination of difficult witnesses.

Recent Appellate Decisions of Interest


Appellate Division Holds Supreme Court Has The Authority To Enforce Promissory Notes To A Third Party  

In Schorr v Schorr, 2017 WL 4892266 (1st Dept.,2017) the Appellate Division held that in calculating the child support award, the court properly imputed income to defendant by including significant funds he received from his parents to pay his expenses (see Domestic Relations Law §240[1-b][b][5][iv][d] ). Defendant was self-employed and refused to maintain a general ledger or financial records for his business. Trial evidence supported the court's finding that defendant inflated his expenses on his tax returns so as to deflate his reported net income, and otherwise manipulated his income. Further, the defendant, who was the sole executor of his father's estate, admitted to using estate funds directly to pay some of his personal expenses. In view of its inability to quantify these alternate sources of revenue available to the defendant, the court acted within its discretion in imputing income to him based on the discernible measure of parental contributions.

The Appellate Division held that the court providently exercised its discretion in directing the parties to repay to plaintiff's parents from the proceeds of the sale of the marital residence a loan for monies borrowed from her father to purchase the marital residence. It rejected defendant=s contention that the court does not have the authority to enforce promissory notes to a third party.


Unequal Distribution Of Marital Property Under DRL 236(B)(5)(d)(14) Allowed  Where Spouse's Criminal Conduct And Incarceration Impacts Family. Not Necessary for Court To Make Finding Of Marital Waste To Impose Financial Responsibility On A Party For Expenses Arising From His Or Her Criminal Activities.

In Linda G., v. James G., ‑‑‑ N.Y.S.3d ‑‑‑‑, 2017 WL 5326824 (1st Dept., 2017) the Appellate Division held that there can be an unequal distribution of the marital home under the "just and proper" standard set forth in Domestic Relations Law §236(B)(5)(d)(14) where a spouse's criminal conduct and subsequent incarceration impacts the family. The parties were married in 1989. They had two children from the marriage. Shortly after the older son was born, the family purchased and moved into a cooperative apartment on Park Avenue in Manhattan. The husband was a partner in Ernst & Young (E & Y). In October 2007, due to a pending Securities and Exchange Commission insider trading investigation, the husband resigned. At that time, he had been earning $1.25 million a year. In 2010, the husband was indicted on charges of conspiracy and insider trading.  He was found guilty and served a one year and one day sentence in federal prison from May 2010 through January 2011. The SEC investigation and criminal trial depleted the joint assets of the parties. The divorce proceedings started on January 26, 2010. The wife returned to work at JP Morgan in February of 2010, shortly before the husband was imprisoned. In 2013, her base salary was $300,000 and her bonus was more than $200,000. The husband began working at Sherwood Partners after his release from incarceration and testified that, as of 2013, his base salary was $226,000. At the time of the trial, the apartment was valued at $4.75 million. The husband admitted that he stopped contributing to the mortgage shortly before he went to prison in May 2010.

Supreme Court took into account the husband's adulterous and criminal behavior and awarded the wife 75% of the marital home. The Appellate Division held the husband's adulterous conduct was not sufficiently egregious and shocking to the conscience to justify making an unequal distribution of the marital home. However, it held that the impact of the husband's criminal conduct on the family may be considered in making an unequal distribution. Comparing this case to the facts in Kohl v. Kohl (6 Misc.3d 1009[A], 2004 N.Y. Slip Op 51759[U], *24 [Sup Ct., N.Y. County 2004], affd 24 AD3d 219 [1st Dept. 2005] ) the record supported an unequal distribution. The parties were required to spend down their savings from 2007 through 2010 when the husband was forced to resign due to the SEC investigation. He refused to take a plea bargain and insisted on going to trial, blaming a woman with whom he had an extramarital affair for his insider trading. He was convicted of a felony and lost his license to practice law. The husband's post-incarceration earnings at the time of the trial dropped significantly to less than 20% of his prior income. His income never returned to the level he earned prior to the conviction. As a result of the husband's criminal actions, the wife, who had left a lucrative career to raise their children, was compelled to return to work after being out of the workforce for almost a decade. This meant that the wife could no longer remain at home with the children. During this time, the younger son suffered from psychiatric issues and the older son from significant emotional issues. The husband=s insider trading, and ensuing criminal trial, conviction and incarceration caused the family to undergo financial losses and a substantial decrease in the standard of living. These events also significantly disrupted the family's stability and well‑being. Based on its review of the record, it found that a 60%/40% equitable division of the value of the marital estate was just and proper when taking into account the hardship that the husband put his family through as a result of his volitional and irresponsible behavior.

The Appellate Division held that Supreme Court's award to the wife of a credit of 50% of marital funds expended in connection with the SEC investigation and criminal proceedings was proper, relying on Kohl v Kohl, where, the court found that the husband should be responsible for 65% of the legal fees for civil forfeiture proceedings and the wife responsible for 35% (2004 N.Y. Slip Op 51759[U], *30). It agreed with the wife that she should not be liable for legal fees as she was not a party to the SEC action and also believed the husband's assertions of innocence. To hold the wife responsible for the accumulation of substantial legal fees for which she shared no culpability would be inequitable. It held that it is not necessary for a court to make a finding of marital waste to impose financial responsibility on a party for expenses arising from his or her criminal activities (Kohl, 24 AD3d at 220). The portion of the judgment awarding the wife a 50% credit for the legal fees arising from the husband's criminal activity was affirmed.


Third Department Holds Default Is Not Willful Under DRL §244 When It Arises with "A Sincere, Though Mistaken, Belief That Payments Were Not Required, Especially When That Belief Was Based Upon Advice from Counsel" 

         In Seale v Seale,  ‑‑‑ N.Y.S.3d ‑‑‑‑, 2017 WL 4817287, 2017 N.Y. Slip Op. 07492 (3d Dept., 2017)  the Appellate Division held, inter alia,  that the wife's request for a money judgment for arrears of payments due pursuant to the judgment of divorce should have been granted. Domestic Relations Law  §244 provides that, upon a party's failure to make any payment for an obligation under a judgment of divorce other than child support, "the court shall make an order directing the entry of judgment for the amount of arrears . . . unless the defaulting party shows good cause for failure to make application for relief . . . prior to the accrual of such arrears" (emphasis added). This provision was intended to shift the burden of seeking relief to the defaulting spouse and to limit a court's discretion in determining whether to grant judgments for arrears. The husband offered various explanations for his failure to make timely payments, but he neither applied for relief prior to his default nor stated any reason for his failure to do so. Supreme Court thus had no discretion to deny the wife's request for a judgment in the full amount of the arrears.

It was undisputed that no arrears remained outstanding. Nevertheless, the wife sought interest for the periods in which the various payments were due but unpaid. Domestic Relations Law § 244 mandates the payment of interest upon arrears "if the default was willful, in that the obligated spouse knowingly, consciously and voluntarily disregarded the obligation under a lawful court order." The Appellate Division held that a default is not willful when it arises from financial disability or from "a sincere, though mistaken, belief that payments were not required, especially when that belief was based upon advice from counsel" (Parnes v Parnes, 41 AD3d 934, 937 [2007]; see Desautels v Desautels, 80 AD3d 926, 930 [2011]; see also Allen v Allen, 83 AD2d 708, 709 [1981]). Here, the husband owned, as his separate property, a number of valuable parcels of real estate, including several business properties. However, he contended that he was in significant financial distress and had no liquid resources other than sales of his separate property with which to satisfy his equitable distribution obligations. The divorce judgment offered some implied support for this assertion by directing the husband to satisfy most of his equitable distribution obligations by selling parcels of his separate property. In addition to evidence specifically detailing the outstanding debts, tax obligations and other financial constraints that resulted in the husband's lack of liquid resources, his submissions established that a June 2014 separate property transaction yielded no funds from which payments could have been made to the wife and that the proceeds of a September 2014 sale, while adequate to permit payment of  the other obligations, did not yield sufficient funds to cover the second counsel fee installment payment. A showing of inability to pay does not preclude a judgment for arrears pursuant to Domestic Relations Law § 244. Nevertheless, for the purpose of determining the interest issue, the Appellate Division found the husband met his burden to demonstrate that his defaults at the time of the property sales were not willful. Both a bench decision issued shortly after the September 2014 transaction and the January 2015 order upon appeal interpreted the provisions of the divorce judgment to find that the second counsel fee installment payment had not yet become due. Although it disagreed with this interpretation, these rulings provided the basis for a sincere belief on the husband's part that he was not then required to make the second installment payment (see Desautels v Desautels, 80 AD3d at 930; Parnes v Parnes, 41 AD3d at 937). Under these circumstances, it found find that the husband met his burden to demonstrate that his delay in making payments was not willful. Thus, the wife was not entitled to interest for the periods of delay.



 Wife Estopped from claiming charitable contributions were marital waste.  A party to litigation may not take a position contrary to a position taken in an income tax return


          In Melvin v Melvin, --- N.Y.S.3d ----, 2017 WL 4781198, 2017 N.Y. Slip Op. 07421 (1st Dept., 2017) the Appellate Division affirmed an order which granted the plaintiff husband’s cross motion for an order declaring defendant wife judicially estopped from claiming that charitable contributions reported on the parties’ joint income tax returns from 2011 through 2015 constituted marital waste. The wife argued that charitable contributions totaling approximately $1.5 million, reflected on the parties’ joint tax returns from 2011 through 2015, were made without her consent. However, she did not deny that she signed the tax returns under penalty of perjury, that the charity receiving the contributions was a bona fide nonprofit organization, and that the marital estate received a benefit from the contributions in the form of tax deductions. Although the wife claimed that the husband only sent her the signature page of the tax returns, so that she was unaware of their contents, she had unfettered access to the complete returns from the parties’ accountant. In any event, by signing the tax returns, she is presumed to have read and understood their contents (see Vulcan Power Co. v. Munson, 89 AD3d 494 [1st Dept 2011], lv denied 19 NY3d 807 [2012]; see also Da Silva v. Musso, 53 N.Y.2d 543, 550–551 [1981]). “A party to litigation may not take a position contrary to a position taken in an income tax return” (Mahoney–Buntzman v. Buntzman, 12 NY3d 415, 422 [2009]). By signing the joint tax return, the wife represented that the charitable contributions were made in both parties’ names as a married couple. Thus, she was judicially estopped from now claiming that the donations were, in fact, made without her consent.

Monday, October 23, 2017

The New York Matrimonial Trial Handbook, by Joel R. Brandes is now available online in the print edition.




     The  New York Matrimonial Trial Handbook, by Joel R. Brandes is now available online and in bookstores in the print edition, and in ebook editions.  

     The New York Matrimonial Trial Handbook is available on our website in a Kindle ebook edition, and in an epub ebook edition for most other ebook readers. 

     The  New York Matrimonial Trial Handbook, by Joel R. Brandes, was written for both the attorney who has never tried a matrimonial action and for the experienced litigator. It is a “how to” book for lawyers. This 836 page handbook focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a matrimonial action.  It is intended to be an aid for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial.  The handbook deals extensively with the testimonial and documentary evidence necessary to meet the burden of proof.  There are thousands of suggested questions for the examination of witnesses at trial to establish each cause of action and requests for ancillary relief, as well as for the cross-examination of difficult witnesses.



     Click on this link for more information about the contents of the book and on this link for the complete table of contents.  




Friday, October 06, 2017

First Department Holds "Presumption of Legitimacy"applies to a Child Born to a Same-sex Married Couple



In re Maria-Irene D, 2017 WL 4287334 (1st Dept., 2017) the Appellate Division affirmed an order which vacated an adoption. Appellant Marco D. and respondent Han Ming T. (Ming), both British citizens, entered a civil union in the United Kingdom (UK) in 2008, which they converted into a legal marriage in 2015, effective as of the date of their civil union. In 2013, the couple jointly executed an egg donor and surrogacy agreement with the intention of becoming parents. Both contributed sperm, and the embryo fertilized by Marco’s sperm was transferred to the surrogate. The child was born in September 2014. The couple commenced a proceeding in Missouri to terminate the egg donor and surrogate’s parental rights to the child. In October 2014, the Missouri court awarded Marco, as the genetic father, “sole and exclusive custody” of the child. Marco, Ming, and the child returned to Florida, where they lived as a family until October 2015, when Ming returned to the UK to seek employment. At some point in or after 2013, Marco entered a relationship with petitioner Carlos A., and they moved to New York with the child after Ming went to the UK. In January 2016, Carlos filed a petition in New York to adopt the child. In the adoption papers, Carlos disclosed that Marco and Ming were married in 2008, but alleged that they had not lived together continuously since 2012 and that Carlos and Marco had been caring for the child since her birth. A home study report stated that Marco and Ming legally separated in 2013 and had no children together. Ming’s role in the surrogacy process was not disclosed, nor was the Florida divorce action commenced by Ming in March 2016 in which he sought joint custody of the child.

Family Court granted Ming’s motion, and vacated the adoption pursuant to Domestic Relations Law § 114(3), finding that Carlos and Marco had made material misrepresentations to the court that provided sufficient cause to vacate, and that Ming was entitled to notice of the adoption proceeding. The Appellate Division affirmed. It found that Ming and Marco’s marriage in the UK was effective as of August 2008. New York courts as a matter of comity will recognize such out-of-state marriages (see e.g. Matter of Mott v. Duncan Petroleum Trans., 51 N.Y.2d 289, 292 [1980] ). The child was born in 2014, as the result of jointly executed surrogacy agreements, at a time when the couple was considered legally married, thus giving rise to the presumption that the child was the legitimate child of both Marco and Ming (see Domestic Relations Law § 24; Matter of Fay, 44 N.Y.2d 137 [1978]). After the child was born, Marco, Ming and the child lived together as a family, and the couple took affirmative steps in the UK to establish Ming’s parental rights in accordance with UK law. Under these circumstances, the Missouri judgment in 2014 awarding Marco sole and exclusive custody of the child, as opposed to the egg donor and surrogate, was insufficient to rebut the presumption of legitimacy. Marco and Ming were deemed legally married when they embarked on the surrogacy process to have a child together (see Debra H. v. Janice R., 14 NY3d 576 [2010], cert denied 562 U.S. 1136 [2011] ). Accordingly, the child was born in wedlock, and Ming was entitled to notice of the adoption proceeding (see Domestic Relations Law § 111[1][b] ). Petitioner’s failure to disclose the Florida divorce action, in which the child was named as a child of the marriage and Ming sought joint custody, provided another ground to vacate the adoption (see Domestic Relations Law § 114[3] ). The adoption petition required petitioner to give a sworn statement that the child to be adopted was not the subject of any proceeding affecting his or her custody or status. Even though petitioner was aware of the Florida divorce action before finalization of the adoption, he failed to disclose the action to the court, instead averring in a supplemental affidavit that there had been no change in circumstances “whatsoever” since the filing of the adoption petition.

Judgment of Divorce Must Contain Provision Addressing Equitable Distribution




In Serao, v. Bench-Serao, --- N.Y.S.3d ----, 2017 WL 1450010, 2017 N.Y. Slip Op. 03135 (1st Dept.,2017) the judgment of divorce had to be vacated because it was devoid of any provision addressing the equitable distribution of the parties marital assets or debts.