Search This Blog

New York Matrimonial Trial Handbook

The New York Matrimonial Trial Handbook by Joel R. Brandes is available online in the print edition at the Bookbaby Bookstore and other bookstores. It is now available in Kindle ebook editions and epub ebook editions in our website bookstore. It is also available at Amazon Kindle, Barnes & Noble and Goodreads.

The New York Matrimonial Trial Handbook was reviewed in the New York Law Journal. Click here to read the review.

The New York Matrimonial Trial Handbook 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. Table of Contents

Monday, November 02, 2009

CSSA Mandatory Award of Health Care Provisions Amended

Laws of 2009, Ch 215, effective October 9, 2009, amended the Mandatory Award of Health Care Expenses Provision of the Basic Child Support Obligation, contained in Domestic Relations Law § 240 (1-b) (c) (5), the Child Support Standards Act.

(For a comprehensive discussion, download "Mandatory Health Care Expenses" by Joel R. Brandes at http://www.brandeslaw.com .)

Former Domestic Relations Law § 240 (1-b) (c) (5), and Family Court Act § 413, subdivision 1 (c) (5), which were amended in 2009, required the court to prorate each parent's share of the reasonable health care expenses of the child, where such expenses are not covered by insurance, in the same proportion as each parent's income is to the combined parental income. They provided that the noncustodial parent's pro rata share of such health care expenses was to be paid in a manner determined by the court, including direct payment to the health care provider. Laws of 2009, Ch 215 § 2. (See also Family Court Act 413, subdivision 1 (c) (5), Laws of 2009, Ch 215 § 1). Former Domestic Relations Law § 240 (1-b), subdivision (c) (5) was repealed and a new Domestic Relations Law §240 (1-b) (c) (5) was added. It provides, in part, that:

” The court shall determine the parties' obligation to provide health insurance benefits pursuant to this section and to pay cash medical support as provided under this subparagraph.”
"Cash medical support" means an amount ordered to be paid toward the cost of health insurance provided by a public entity or by a parent through an employer or organization, including employers or organizations which are self insured, or through other available health insurance or health care coverage plans, and/or for other health care expenses not covered by insurance.

It also provides, in part:

(v) In addition to the amounts ordered under clause (ii), (iii), or (iv), the court shall pro rate each parent's share of reasonable health care expenses not reimbursed or paid by insurance, the medical assistance program established pursuant to title eleven of article five of the social services law, or the state's child health insurance plan pursuant to title one-A of article twenty-five of the public health law, in the same proportion as each parent's income is to the combined parental income, and state the non-custodial parent's share as a percentage in the order. The non-custodial parent's pro rata share of such health care expenses determined by the court to be due and owing shall be support arrears/past due support and shall be subject to any remedies provided by law for the enforcement of support arrears/past due support. In addition, the court may direct that the non-custodial parent's pro rata share of such health care expenses be paid in one sum or in periodic sums, including direct payment to the health care provider.
(vi) Upon proof by either party that cash medical support pursuant to clause (ii), (iii), (iv), or (v) of this subparagraph would be unjust or inappropriate pursuant to paragraph (f) of this subdivision, the court shall:
(A) order the parties to pay cash medical support as the court finds just and appropriate, considering the best interests of the child; and
(B) set forth in the order the factors it considered, the amount calculated under this subparagraph, the reason or reasons the court did not order such amount, and the basis for the amount awarded.

Former Domestic Relations Law § 240(1)(d) and Family Court Act § 416(f), which provided for the proration of costs between the parties where private health insurance is ordered, were amended at the same time to provide that the cost of private health insurance, or the cost of any premium, family contribution, or health expense incurred as a result of enrollment in the State Child Health Insurance Program or Medical Assistance program shall be deemed “cash medical support.” Each parent's contribution to the cost of such coverage is to be determined under the amended provisions of and Domestic Relations Law § 240 (1-b) (c) (5) and Family Court Act § 413, subdivision 1 (c) (5). Laws of 2009, Ch 215 § 7 & 8.

Family Court Act §§ 514 and 545, respectively, were amended to provide that the necessary expenses incurred by or for the mother in connection with her pregnancy, confinement and recovery shall be deemed a cash medical support obligation and the court must determine the obligation of either or both parties to contribute to the cost pursuant to Family Court Act § 413. Laws of 2009, Ch 215, §§ 7 & 8.

CPLR 5241 was amended to provide that a Deductions to satisfy current support obligations shall have priority over deductions for the debtor's share of health insurance premiums which shall have priority over any additional deduction authorized by CPLR 5241 (g). Civil Practice Law and Rules 5241 (h) as amended by Laws of 2009, Ch 215,§ 12, effective Oct. 9, 2009.

Friday, October 09, 2009

New York Child Support Calculator Now Available

The New York Divorce and Family Law™FamCalc Software Suite will be available after October 1, 2009. The programs, written by Jerry Cohen, Esq, of the New York Bar, in collaboration with Joel R. Brandes Consulting Services, Inc., were specifically designed to make make life easier for the New York Divorce and Family Law attorney. They require no more than basic knowledge of how to use a computer, and are so simple that they do not have menus or need help files. The New York Divorce and Family Law™Child Support Calculator, is now available. It automatically generates a helpful summary report, calculates the child support amount on combined parental income, both under and over $130,000, and drafts for you the language required to be included in agreements, stipulations, and findings of fact. Doing the child support calculations are "so easy a lawyer can do it". For information send an email to sales@nysdivorce.com, or submit a request at http://www.brandeslaw.com/Forms/feedback.htm

Retiurn of Parent from Military Authorizes Reconsideration of Custody Orders

Return of Parent from Military Automatically Considered 'Substantial Change in Circumstance For Seeking Reconsideration of Custody or Visitation Order.


Laws of 2009, Ch 473, effective November 15, 2009, amended the Domestic Relations Law, the Family Court Act and the Military Law to provide that the return of a parent from activation or deployment by the military will automatically be considered a 'substantial change in circumstance' for seeking reconsideration of a custody or visitation order. The amendment changes the law enacted last year which requires that all child custody orders issued when a parent is on active military duty be deemed temporary and subject to revision when the parent returns to civilian life.
Laws of 2009, Ch 473, § 1 amended Domestic Relations Law § 75-l ( entitled Military service by parent; effect on child custody
orders) to provide unless the parties have otherwise stipulated or agreed, if an order was issued under Domestic Relations Law § 75-l, the return of the parent from active military service, deployment or temporary assignment shall be considered a substantial
change in circumstances. Upon the request of either parent, the court shall determine on the basis of the child's best interests whether the custody judgment or order previously in effect should be modified.
Laws of 2009, Ch 473, § 2 amended Domestic Relations Law 240, subdivision 1 to add a new paragraph (a-2) to read as follows:
(a-2) Military service by parent; effect on child custody orders.
(1) During the period of time that a parent is activated, deployed or temporarily assigned to military service, such that the parent's ability to continue as a joint caretaker or the primary caretaker of a minor child is materially affected by such military service, any orders issued pursuant to this section, based on the fact that the parent is activated, deployed or temporarily assigned to military service, which would materially affect or change a previous judgment or order regarding custody of that parent's child or children as such judgment or order existed on the date the parent was activated, deployed, or temporarily assigned to military service, shall be subject to review pursuant to subparagraph three of this paragraph. Any relevant provisions of the Service Member's Civil Relief Act shall apply to all proceedings governed by this section.
(2) During such period, the court may enter an order to modify custody if there is clear and convincing evidence that the modification is in the best interests of the child. An attorney for the child shall be appointed in all cases where a modification is sought during such military service. Such order shall be subject to review pursuant to subparagraph three of this paragraph. When entering an order pursuant to this section, the court shall consider and provide for, if feasible and if in the best interests of the child, contact between the military service member and his or her child, including, but not limited to, electronic communication by e-mail, webcam, telephone, or other available means. During the period of the parent's leave from military service, the court shall consider the best interests of the child when establishing a parenting schedule, including visiting and other contact. For such purposes, a "leave from military service" shall be a period of not more than three months.
(3) Unless the parties have otherwise stipulated or agreed, if an order is issued pursuant to this paragraph, the return of the parent from active military service, deployment or temporary assignment shall be considered a substantial change in circumstances. Upon the request of either parent, the court shall determine on the basis of the child's best interests whether the custody judgment or order previously in effect should be modified.
(4) This paragraph shall not apply to assignments to permanent duty stations or permanent changes of station.
Laws of 2009, Ch 473, § 3 amended Family Court Act § 651 to add a new subdivision (f) which reads exactly the same as Domestic Relations Law 240, subdivision 1 (a-2).

Additional Crimes that Constitute a Family Offense Added

Additional Crimes that Constitute a Family Offense Added

Laws of 2009, Ch 476, § 3 and 4, amended Criminal Procedure Law 530.11, and Family Court Act 812 (1) to add the crimes of sexual misconduct, forcible touching, sexual abuse in the third degree, and sexual abuse in the second degree as set forth in subdivision one of section 130.60 of the penal law to the crimes which constitute a "family offense". Family Court Act 821 (1) (a) was amended accordingly.

Judges Required to Make Additional Findings Where Domestic Violence Found

Judges Required to Make Additional Findings Where Domestic Violence Found


Laws of 2009, Ch 476, § 2 amended Domestic Relations Law § 240 (1)(a), effective December 15, 2009 to require judges to state on the record how their findings with regard to the effect of domestic violence factored into their custody determination. Where the court finds, by a preponderance of the evidence that there is domestic violence the court has been required to consider the effect of domestic violence upon the best interests of the child, together with such other facts and circumstances as the court deems relevant in making a direction pursuant to Domestic Relations Law § 240 (1)(a). The amendment requires the Court to state on the record how such findings, facts and circumstances factored into the direction for custody or visitation. If an allegation that a child is abused is supported by a preponderance of the evidence, then the court has been required to consider such evidence of abuse in determining the visitation arrangement that is in the best interest of the child, and the court may not place a child in the custody of a parent who presents a substantial risk of harm to that child. The amendment requires the court to state on the record how such findings were factored into the determination.
Attorney For Child Will be Required to Take Domestic Violence Training
Laws of 2009, Ch 476, § 1 amended Family Court Act 249-b to require the Chief Administrator of the Courts to provide for the development of training programs which include the dynamics of domestic violence and its effect on victims and on children, and the relationship between such dynamics and the issues considered by the court, including, but not limited to, custody, visitation and child support and requires that all attorneys for children, including new and veteran attorneys, receive initial and ongoing training as provided for in this section.

Sunday, September 20, 2009

The New York Divorce and Family Law FamCalc Software Suite will be available October 1, 2009

The New York Divorce and Family Law FamCalc Software Suite will be available October 1, 2009

We are proud to announce that as of October 1, 2009 our New York Divorce and Family Law FamCalc Software Suite of individual programs will be available to make life easier for every attorney who practices divorce and family law in New York. This software, which requires only a basic knowledge of computers, was written especially for the New York Divorce and Family Law attorney. The Suite of programs will include the New York Divorce and Family Law Child Support Calculator, which automatically generates a helpful summary report and UD-8 Worksheet, calculates the child support amount on combined parental income, both under and over $130,000, and drafts for you the language required to be included in agreements, stipulations, and findings of fact. Another program in the Suite is Drafting Agreements For the New York Divorce and Family Law Attorney. It contains an interactive manual, describing in detail each provision of the agreement you are composing. It offers you practical advice for drafting your agreement with the "Settlement Considerations", "Drafters Notes" and "Law You Should Know". The program is updated annually so that you will always be up to date on New York law of agreements. The Suite will also contain the New York Divorce and Family Law Statement of Net Worth Calculator, which automatically generates a net worth statement that converts all expenses into monthly or weekly expenses; the New York Divorce and Family Law Value Calculator, which allows you to calculate the present value of future dollars; and the New York and Family Law Marital Property Distributor, which calculates, on a "what if" basis, the total value of each spouses' share of the marital assets. The programs are easy to run and come with simple plain - English instructions. The contents of all of the programs have been written by us, based upon years of experience in New York divorce and family law practice. They make doing the child support calculations, or drafting a complex agreement, "so easy a lawyer can do it".
(For further information click on this link to fill out a request form)

Saturday, August 22, 2009

Legislature Raises Cap on Combined Parental Income to $130,000 effective January 31, 2010

CSSA Cap on Combined Parental Income Raised to $130,000

Laws of 2009, Chapter 343 enacted the "child support modernization act" which amended the provisions of the Child Support Standards Act to raise the cap on combined parental income to $130,000 effective January 31, 2010, and to provide for the adjustment of the $130,000 cap every two years to reflect changes in the Consumer Price Index. The child support percentages of payments that non-custodial parents are obligated to make toward child support remains the same.
Domestic Relations Law § 240 (1-b) (2) and Family Court Act § 413 (1) (c) (2) were each amended to provide that thee court shall multiply the combined parental income up to the amount set forth in Social Services Law 111-i, (2) (b). Social Services Law 111-i (2)(b) provides that the combined parental income amount to be reported in the child support standards chart and utilized in calculating orders of child support in accordance with Domestic Relations Law § 240 (1-b) (2) and Family Court Act § 413 (1) (c) (2) shall be one hundred thirty thousand dollars; and that beginning January 31, 2012 and every two years thereafter, the combined parental income amount shall increase by the product of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the United States department of labor bureau of labor statistics for the two year period rounded to the nearest one thousand dollars.These amendments take effect on January 31, 2010.
 
Domestic Relations Law § 240 (1-b) (2) and Family Court Act § 413 (1) (c) (2) were each amended to read as follows:
(2) The court shall multiply the combined parental income up to the amount set forth in paragraph (b) of subdivision two of section one hundred eleven-i of the social services law by the appropriate child support percentage and such amount shall be prorated in the same proportion as each parent's income is to the combined parental income.
Social Services Law 111-i (2) was amended to read as follows:
2. (a) The commissioner shall publish a child support standards chart. The child support standards chart shall include: (i) the revised poverty income guideline for a single person as reported by the federal department of health and human services; (ii)the revised self-support reserved as defined in section two hundred forty of the domestic relations law; (iii) the dollar amounts yielded through application of the child support percentage as defined in section two hundred forty of the domestic relations law and section four hundred thirteen of the family court act; and (iv) the combined parental income amount.
(b) The combined parental income amount to be reported in the child support standards chart and utilized in calculating orders of child support in accordance with subparagraph two of paragraph (c) of subdivision one of section four hundred thirteen of the family court act and subparagraph two of paragraph (c) of subdivision one-b of section two hundred forty of the domestic relations law shall be one hundred thirty
thousand dollars; provided, however, beginning January thirty-first, two thousand twelve and every two years thereafter, the combined parental income amount shall increase by the product of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the United States department of labor bureau of labor statistics for the two year period rounded to the nearest one thousand dollars. (c) The commissioner shall publish the child support standards chart on an annual basis by April first of each year and in no event later than forty-five days following publication of the annual poverty income guideline for a single person as reported by the federal department of health and human services.

Tuesday, August 11, 2009

Loss of Health Insurance Benefits Added As a Factor

Laws of 2009, Ch 229 amends the domestic relations law, in relation to maintenance and equitable distribution of marital property, effective September 14, 2009 to add "the loss of health insurance benefits upon dissolution of the marriage as a factor to be considered by the court in making a maintenance award and in making a property distribution.

Domestic Relations Law § 236 [B][5][d],subparagraphs 5, 6, 7, 8, 9, 10, 11, 12 and 13 of are renumbered subparagraphs 6, 7, 8, 9, 10, 11, 12, 13 and 14, and a new subparagraph 5 is added to read as follows: (5) the loss of health insurance benefits upon dissolution of the marriage;

Domestic Relations Law § 236 [B][6][a][10] is amended to read as follows: (10) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;

Domestic Relations Law 236 [B][6][a][11] is renumbered subparagraph 12 and a new subparagraph 11 is added to read as follows: (11) the loss of health insurance benefits upon dissolution of the marriage; and

The amendments apply to any action or proceeding commenced on or after the effective date of September 14, 2009. See Laws of 2009, Ch 229, § 4.

Thursday, July 23, 2009

DRL 177 Repealed and Replaced By DRL 255

Domestic Relations Law § 177 has been repealed, and replaced by Domestic Relations Law § 255, which was signed into law on July 11, 2009. It becomes effective 90 days after the date it was signed into law and applies to all actions in which judgment has not been entered as of the effective date. (See Laws of 2009, Ch 143)

Domestic Relations Law § 255, subdivision 1 provides that prior to signing a judgment of divorce or separation, or a judgment annulling a marriage or declaring the nullity of a void marriage, the court must ensure that both parties have been notified, at such time and by such means as the court determines, that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan. In the case of a defaulting defendant, service upon the defendant, simultaneous with the service of the summons, of a notice indicating that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan, shall be deemed sufficient notice to a defaulting defendant. (Go to http://www.nysdivorce.com to download a suggested Notice of Possible Loss of Eligibility For Health Care Coverage)

Domestic Relations Law § 255, subdivision 2 provides that if the parties have entered into a stipulation of settlement or agreement, on or after the effective date of Section 255, resolving all of the issues between the parties, the stipulation of settlement or agreement must contain a provision relating to the health care coverage of each party. The provision must either: (a) provide for the future coverage of each party, or (b) state that each party is aware that he or she will no longer be covered by the other party's health insurance plan and that each party shall be responsible for his or her own health insurance coverage, and may be entitled to purchase health insurance on his or her own through a COBRA option, if available. The requirements subdivision 2 may not be waived by either party or counsel. In the event that it is not complied with, the court must require compliance and may grant a thirty day continuance to afford the parties an opportunity to procure their own health insurance coverage. (Go to http://www.nysdivorce.com to download a suggested Agreement-Stipulation Provision for Compliance with Domestic Relations Law § 255)

Automatic Restraining Orders

Domestic Relations Law 236 [B] [2] was amended, by Laws of 2009, Chapter 72, § 1, effective September 1, 2009, to add a subdivision b, which provides for automatic restraining orders that come into effect upon the commencement of a matrimonial action and bind both parties.

Domestic Relations Law § 236 (B) (2) (b) provides that the plaintiff shall cause to be served upon the defendant, simultaneous with the service of the summons, a copy of the automatic orders set forth in subdivision (b). This paragraph places upon the plaintiff a duty to serve upon the defendant automatic orders which bind both parties. The automatic orders are binding upon the plaintiff upon the commencement of the action by the filing of the summons or summons and complaint. They are binding upon the defendant upon service of the Summons or ‘Summons and Complaint. The automatic orders remain in full force and effect during the pendency of the action, unless terminated, modified or amended by further order of the court, upon motion of either of the parties, or upon written agreement between the parties duly executed and acknowledged. The automatic orders are as follows: (1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney's fees in connection with this action.(2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keough accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further order of the court. (3) Neither party shall incur unreasonable debts hereafter, including, but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney's fees in connection with this action. (4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical hospital and dental insurance coverage in full force and effect. (5) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect. (Go to http://www.nysdivorce.com to download a suggested form notice of automatic restraining orders)

Thursday, May 21, 2009

Court of Appeals Holds Non-custodial Parent Does Not Retain Decision-making Authority

Non-custodial Parent Does Not Retain Decision-making Authority Pertaining to Education of Child Where Custodial Parent Granted Exclusive Custody of the Child and Decree and Custody Order Are Silent as to Right to Control Such Decisions.


In Fuentes v Board of Educ. of City of New York, --- NY3d ----, 2009 WL 1148636 (2009) Plaintiff Jesus Fuentes and his wife were divorced in 1996. Family Court entered an order granting the wife exclusive custody of the three children, including a son, M.F., who, due to a genetic disorder, was legally blind. M.F. attended public school in New
York City and received special education services to accommodate his disability. In 2000, plaintiff believed that M.F.'s special education services and accommodations were inadequate and requested a reevaluation. When the Committee on Special Education for the Hearing, Handicapped, and Visually Impaired responded that M.F's services were adequate, plaintiff requested a hearing from the Impartial Hearing Office of the New York State Department of Education to review that determination. In 2001, plaintiff's request for a hearing was denied based on his status as the non-custodial parent of M.F. The Office concluded that because plaintiff was not the "person in parental relation" (Education Law 3212), he did not have the right to make educational decisions pertaining to M.F. and, consequently, did not have a right to request a hearing. Plaintiff then commenced an action in the United States District Court, alleging, among other things, that he was denied his right under the federal Individuals with Disabilities Education Act (IDEA) to a hearing to review the determinations of the Board of Education. After a dismissal, appeal, and remand on issues not pertinent to the certified question, the district court dismissed plaintiff's case for lack of standing under the IDEA. On appeal, the United States Court of Appeals for the Second Circuit found that no precedent from the Court of Appeals directly addressed the dispositive issue and certified a question, which the Court of Appeals reformulated: " Whether, under New York Law, the non-custodial parent of a child retains decision-making
authority pertaining to the education of the child where (1) the custodial parent is granted exclusive custody of the child and (2) the divorce decree and custody order are silent as to the right to control such decisions. " As reformulated the certified question was answered in the negative. The Court of Appeals noted that it is 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. It declined to recognize an implied right of non-custodial parents to exercise decision-making authority with respect
to their child's education notwithstanding the custody order's silence on this subject and emphasized the importance of parties determining these issues at the time of separation or divorce. The Court noted the distinction between a non-custodial parent's right to "participate" in a child's education and the right to "control" educational decisions. Generally, there is nothing which 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. 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.

Saturday, May 16, 2009

Court of Appeals Establishes Rule with Respect to Payments to Former Spouse

In Mahoney-Buntzman v Buntzman, --- N.Y.3d ----, 2009 WL 1227875 (2009) the Court of Appeals established the general rule that "where payments are made before either party is anticipating the end of the marriage, and there is no fraud or concealment, courts should not look back and try to compensate for the fact that the net effect of the payments may, in some cases, have resulted in the reduction of marital assets. Nor should courts attempt to adjust for the fact that payments out of separate property may have benefitted both parties, or even the non-titled spouse exclusively. The parties' choice of how to spend funds during the course of the marriage should ordinarily be respected. Courts should not second-guess the economic decisions made during the course of a marriage, but rather should equitably distribute the assets and obligations remaining once the relationship is at an end." Thus, the Court held that payments made to a former spouse and/or children of an earlier marriage, even if made pursuant to court order, are not the type of liabilities entitled to recoupment. And, a student loan, which was both incurred and fully paid for during the marriage, was a marital obligation for which responsibility was to be shared between the parties. The Court also held that, as a matter of public policy, a "party to litigation may not take a position contrary to a position taken in an income tax return."
The parties were married in New York in 1993 and had two daughters. The wife had an adult child from a previous relationship. The husband was married once before, and had two adult children from that marriage. Pursuant to a divorce judgment, the husband was obligated to pay his first wife maintenance. During the present marriage, the husband and another individual formed Educational Video Conference Inc. (EVCI), a New York Corporation that went public in 1999. At the time of the action, the husband owned a number of shares and options of EVCI stock, all of which were acquired during marriage. Prior to his marriage to plaintiff, the husband had an interest in Arol Development Corporation (ADC), a real estate development company he founded with his father in 1971. In 1983, the husband founded another company, Big Apple Industrial Buildings, Inc., 80% of which he sold to ADC in 1989. In 1998, the husband entered into an agreement with his father whereby he agreed to relinquish his stock ownership in both corporations in exchange for a lump sum payment. The agreement provided that the payment would be reported on a "1099" form issued to him by the purchasing company. In order to account for the increased tax liability that the husband would incur as a consequence of treating the payment as ordinary income rather than as a sale of stock, the payment was increased by 17 percent. This money, amounting to $1.8 million was received by the husband during the marriage and reported on the parties' joint income tax return as self-employment business income. In May 1996, the husband obtained a doctorate in education from Fordham University for which he had taken out a student loan that was repaid two years later. On May 19, 2003, the wife commenced the divorce action.

Court of Appeals Holds When Pendente Lite Award Of Maintenance Is Found To Be Excessive Or Inequitable Court May Make An Appropriate Adjustment

In Johnson v Chapin, - N.Y3d -, 2009 WL 1227869 (2009) the Court of Appeals, in an opinion by Judge Pigott, held that when a pendente lite award of maintenance is found at trial to be excessive or inequitable, the Court may make an appropriate adjustment in the equitable distribution award. However, it rejected the husband's claim that he should be entitled to a credit for excess child support payments pointing out that it has long been held that there is a "strong public policy against restitution or recoupment of support overpayments".
The Husband and wife were married in 1991 and had one child. The husband had four children from a previous marriage and was required to pay both maintenance and child support. At the time the parties married, both were working attorneys. The Wife stopped working outside the home when the parties' son was three years old. The Husband was a partner at a law firm from 1968 until 1999, and thereafter became a managing director at a major investment banking firm until 2001. Prior to the marriage, the husband owned a home on approximately 160 acres of land in Claverack, New York. During the marriage the parties spent approximately $2 million to renovate and improve the property. While the husband played a larger role in these improvements, the wife also participated in some of the project's details. In November 2001, the wife commenced an action for divorce after discovering husband was having an extramarital affair. Prior to trial, she made an application for interim maintenance and child support. Supreme Court imputed an average annual income of $2,273,680 to the husband and ordered him to pay $18,465 monthly maintenance to wife and child support of $10,625 per month. The Husband was also ordered to pay the wife interim counsel fees of $100,000.
A judgment of divorce on the grounds of cruel and inhuman treatment was awarded to the wife. The Trial court recognized that the Claverack property was the husband's separate property, but held the funds spent on the renovations to be marital property subject to equitable distribution. The court awarded 50% of the appreciation of the Claverack estate to the wife. It also credited the wife with 50% of the marital property the husband used to pay the maintenance and child support obligations to his first wife. After considering that the wife had not worked outside the home for nine years and that it would take six years to develop her career, the court awarded the wife durational maintenance of $6,000 per month for six years. It also awarded wife legal fees and expert fees to be determined by a referee due in part to the fact that wife and her son "have suffered day to day crises resulting from the [husband's] harassment of them."
The Appellate Division modified the judgment by reducing the wife's share of the enhanced value of the Claverack property to 25% and by crediting the husband for his pendente lite maintenance obligations (49 AD3d 348). The majority noted that the husband had consistently been less than forthcoming regarding his income and that Supreme Court had found him incredible in the reporting of his income and assets. The majority therefore upheld the imposition of legal and expert fees on husband, noting that he "engaged in a pattern of obstructionist conduct which unnecessarily delayed and increased the legal fees incurred in the litigation".
The Court of Appeals, in an opinion by Judge Pigott, held that when a pendente lite award of maintenance is found at trial to be excessive or inequitable, the Court may make an appropriate adjustment in the equitable distribution award. Thus, Supreme Court did not abuse its discretion in giving husband a credit representing the amount of the pendent lite maintenance he paid that exceeded what he was required to pay under the final maintenance award. In determining the temporary maintenance award, Supreme Court imputed an average salary in excess of $2 million to husband. However, at trial, it was established that his income was significantly lower. Given the disparity in the maintenance amounts, under the circumstances of this case, it was appropriate for the husband to receive a credit.
The Court of Appeals rejected the husband's claim that he should have been entitled to a credit for excess child support payments, pointing out that it has long been held that there is a "strong public policy against restitution or recoupment of support overpayments" and nothing in this record showed it was error to deny that relief.
Judge Pigott noted that under the equitable distribution statute any appreciation in the value of separate property due to the contributions or efforts of the nontitled spouse will be considered marital property (Price v. Price, 69 N.Y.2d 8 [1986] ). This includes any direct contributions to the appreciation, such as when the nontitled spouse makes financial contributions towards the property, as well as when the nontitled spouse makes direct nonfinancial contributions, such as by personally maintaining, making improvements to, or renovating a marital residence. Thus, Supreme Court properly held that the improvements were marital, since the increase in the property was a result of both parties' efforts. He found that the Appellate Division did not abuse its discretion in reducing the award to wife from 50% to 25% of the property appreciation. The husband's income was the sole source of the funds expended on the property and, the husband's involvements in the renovations were far more extensive. The Court noted that it had held that when "exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions" (citing DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879 [1987]). Here, when awarding the fees, the court considered the parties' financial positions as well as the delay incurred as a result of husband's obstructionist tactics. Thus, it declined to disturb those awards. Finally, the Court held that the wife was not entitled to the 50% credit representing the money paid during the marriage towards husband's pre-marital obligations to pay his first wife maintenance and child support (citing "Mahoney-Buntzman v. Buntzman, NY3d", which it decided the same day).

Wednesday, March 04, 2009

Standard of Proof in Family Offense Proceeding When Court Commits an Individual to a Jail Term Is Proof Beyond a Reasonable Doubt

In Matter of Rubackin v Rubackin, --- N.Y.S.2d ----, 2009 WL 486027 (N.Y.A.D. 2 Dept.) the Appellate Division, Second Department concluded that the standard of proof which must be met when the court commits an individual to a jail term is proof beyond a reasonable doubt that he or she willfully failed to obey a lawful order of the court. That same high standard is not applicable if one or more of the other available remedies under Family Court Act 846-a is utilized and a jail term is not imposed. The failure to obey a lawful order of a court is a species of contempt. A contempt of court ultimately may constitute a criminal contempt, a civil contempt, or both a criminal and a civil contempt. A period of incarceration may be imposed upon a finding of either a criminal or civil contempt. It noted that in Dalessio v. Kressler (6 AD3d 57), the distinction between civil and criminal contempt was discussed: "Civil contempt (see Judiciary Law 753) 'has as its aim the vindication of a private party to litigation' and includes as its elements knowledge of the order and prejudice to the rights of a party to the litigation [citations omitted] ... The purpose of criminal contempt (see Judiciary Law 750) is to vindicate the authority of the court [citations omitted]. No showing of prejudice to the
rights of a party to the litigation is needed 'since the right of the private parties to the litigation is not the controlling factor' [citations omitted]. An essential element of criminal contempt is willful disobedience (see Judiciary Law s 750[3] )" (Dalessio v. Kressler, 6 AD3d at 65-66). It noted that its holding changed the standard of proof previously found to be applicable under Family Court Act 846-a by it and by other departments of the Appellate Division. The Second Department held that when an individual is incarcerated as a punitive remedy for violating an order of protection issued under Family Court Act article 8, the imprisonment is for a definite term and the proceeding is one involving criminal contempt. The standard of proof that must be met to establish that the individual willfully violated the court's order is beyond a reasonable doubt. That higher standard, as opposed to the clear and convincing standard, is the requisite standard. The prior decisions of the Court, in cases where the respondent had been committed to a term in jail pursuant to Family Court Act 846-a, holding that the standard of proof is one of the lesser standards, should no longer be followed. A commitment to jail for a term not to exceed six months is only one of the five alternative, or cumulative, remedies the Family Court may impose pursuant to Family Court Act 846-a when it is satisfied that a party has willfully failed to obey the court's order or orders. When an order committing a respondent to a jail term is issued, either alone or in combination with another remedy, the commitment is punitive, to punish the individual for his or her disobedience, and the standard of proof is beyond a reasonable doubt. As a petition alleging that a respondent has failed to obey a lawful order of the court may result in a finding of criminal contempt, civil contempt, or both criminal and civil contempt, the parties should be informed of the potential findings and the applicable standards of proof.