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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 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, June 27, 2011

New York's Marriage Equality Act

The Marriage Equality Act

On June 24, 2011 New York enacted “The Marriage Equality Act’, which amended the domestic relations law to grant same-sex couples the ability to enter into civil marriages in New York. New York, has joined Vermont and New Hampshire in becoming the third state to pass legislation permitting same-sex marriage. The only othr U.S. jurisdictions that permit same-sex marriage are the District of Columbia, which also passed a same-sex marriage law, and Massachusetts, Connecticut and Iowa which permit same-sex marriage as a consequence of court rulings.

Although the New York Domestic Relations Law contains no specific prohibition against marriages between individuals of the same sex, the Court of Appeals has held that the law limits marriage within New York State to different-sex couples. At the same time, in recognition of common law principles, New York courts have also held that marriages between individuals of the same sex legally performed in other jurisdictions are "entitled to recognition in New York in the absence of express legislation to the contrary."

The Marriage Equality Act provides that an otherwise valid marriage shall be valid regardless of whether the parties are of the same sex or different sex. To ensure that the law does not improperly intrude into matters of conscience or religious belief, the Act affirms that no member of the clergy can be compelled to solemnize any marriage. The law also ensures that the statutory protections for religious organizations found in the New York Human Rights law remains intact, including, guaranteeing that religious institutions remain free to choose who may use their facilities and halls for marriage ceremonies and celebrations, to whom they rent their housing accommodations, or to whom they provide religious services, consistent with their religious principles. The Act contains language to ensure that benevolent organizations remain exempt from New York prohibitions against discrimination in public accommodations, and are not be required to rent social halls to weddings of same-sex or other couples it chooses not to accommodate.

The Domestic Relations Law was amended by adding two new sections Domestic Relations Law §§10-a and 10-b to read as follows:


§ 10-a. Parties to a marriage.

1. A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex.

2. No government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage, whether deriving from statute, administrative or court rule, public policy, common law or any other source of law, shall differ based on the parties to the marriage being or having been of the same sex rather than a different sex. When necessary to implement the rights and responsibilities of spouses under the law, all gender-specific language or terms shall be construed in a gender-neutral manner in all such sources of law. (Laws of 2011, Ch 95, § 3, effective July 24, 2011)


§ 10-b. Religious exception.

1. Notwithstanding any state, local or municipal law, rule, regulation, ordinance, or other provision of law to the contrary, a religious entity as defined under the education law or section two of the religious corporations law, or a corporation incorporated under the benevolent orders law or described in the benevolent orders law but formed under any other law of this state, or a not-for- profit corporation operated, supervised, or controlled by a religious corporation, or any employee thereof, being managed, directed, or super vised by or in conjunction with a religious corporation, benevolent order, or a not-for-profit corporation as described in this subdivision,
shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any such refusal to provide services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action or result in any state or local government action to penalize, withhold benefits, or discriminate against such religious corporation, benevolent order, a not-for-profit corporation operated,
supervised, or controlled by a religious corporation, or any employee thereof being managed, directed, or supervised by or in conjunction with a religious corporation, benevolent order, or a not-for-profit corporation.

2. Notwithstanding any state, local or municipal law or rule, regulation, ordinance, or other provision of law to the contrary, nothing in this article shall limit or diminish the right, pursuant to subdivision eleven of section two hundred ninety-six of the executive law, of any religious or denominational institution or organization, or any organ-
ization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, to limit employment or sales or rental of housing accommodations or admission to or give preference to persons of the same religion or denomination or from taking such action as is calculated by such organization to promote the religious principles for which it is estab-
lished or maintained.

3. Nothing in this section shall be deemed or construed to limit the protections and exemptions otherwise provided to religious organizations under section three of article one of the constitution of the state of New York. ( Laws of 2011, Ch 96, § 1, effective July 24, 2011)


Domestic Relations Law § 13 was amended to add the last sentence which provides that “No application for a marriage license shall be denied on the ground that the parties are of the same, or a different, sex. Domestic Relations Law §13 provides as follows:

§ 13. Marriage licenses. It shall be necessary for all persons intended to be married in New York state to obtain a marriage license from a town or city clerk in New York state and to deliver said license, within sixty days, to the clergyman or magistrate who is to officiate before the marriage ceremony may be performed. In case of a marriage contracted pursuant to subdivision four of section eleven of this chapter, such license shall be delivered to the judge of the court of record before whom the acknowledgment is to be taken. If either party to the marriage resides upon an island located not less than twenty-five miles from the office or residence of the town clerk of the town of which such island is a part, and if such office or residence is not on such island such license may be obtained from any justice of the peace residing on such island, and such justice, in respect to powers and duties relating to marriage licenses, shall be subject to the provisions of this article governing town clerks and shall file all statements or affidavits received by him while acting under the provisions of this section with the town clerk of such town. No application for a marriage license shall be denied on the ground that the parties are of the same, or a different, sex. (Laws of 2011, Ch 95, § 4, effective July 24, 2011)


Domestic Relations Law §11 was amended to make clear that no member of the clergy acting in such capacity may be required to perform any marriage. Domestic Relations Law §11, subdivision 1 was amended, to add the provision that “no clergyman or minister as defined in section two of the religious corporations law, or Society for Ethical Culture leader shall be required to solemnize any marriage when acting in his or her capacity under this subdivision, and subdivision 1-a was added. (Laws of 2011, Ch 95, § 5, as amended by Laws of 2011, Ch 96, §2, effective July 24, 2011)


Domestic Relations Law §11 provides:

11 1. A clergyman or minister of any religion, or by the senior leader, or any of the other leaders, of The Society for Ethical Culture in the city of New York, having its principal office in the borough of Manhattan, or by the leader of The Brooklyn Society for Ethical Culture, having its principal office in the borough of Brooklyn of the city of
New York, or of the Westchester Ethical Society, having its principal office in Westchester county, or of the Ethical Culture Society of Long Island, having its principal office in Nassau county, or of the Riverdale-Yonkers Ethical Society having its principal office in Bronx county, or by the leader of any other Ethical Culture Society affiliated with the American Ethical Union; provided that no clergyman or minister as defined in section two of the religious corporations law, or Society for Ethical Culture leader shall be required to solemnize any marriage
when acting in his or her capacity under this subdivision. (Laws of 2011, Ch 95, § 5, as amended by Laws of 2011, Ch 96, §2, effective July 24, 2011)

1-a. A refusal by a clergyman or minister as defined in section two of the religious corporations law, or Society for Ethical Culture leader to solemnize any marriage under this subdivision shall not create a civil claim or cause of action or result in any state or local government action to penalize, withhold benefits or discriminate against such clergyman or minister. (Laws of 2011, Ch 95, § 5, as amended by Laws of 2011, Ch 96, §2, effective July 24, 2011)


The legislation provides that it is “...to be construed as a whole, and all parts of it are to be read and construed together. If any part of this act shall be adjudged by any court of competent jurisdiction to be invalid, the remainder of this act shall be invalidated. Nothing herein shall be construed to affect the parties' right to appeal the matter. “(Laws of 2011, Ch 96, § 3 which added § 5-a to Laws of 2011, Ch 95)

Saturday, June 25, 2011

New York Enacts Same-Sex Marriage Laws on June 24, 2011

Laws of 2001, Ch 95 enacted the Marriage Equality Act, effective July 24, 2011. It amended New York's Domestic Relations Law to provide that:

•A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex
•No government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage shall differ based on the parties to the marriage being the same sex or a different sex
•No application for a marriage license shall be denied on the ground that the parties are of the same or a different sex.

Laws of 2011, Ch 96, effective July 24, 2011, was passed at the same time as the Marriage Equality ACt and amended the Marriage Equality Act to include protections for religious organizations. The Act states that no religious entity, benevolent organization or not-for-profit corporation that is operated, supervised or controlled by a religious entity, or their employees can be required to perform marriage ceremonies or provide their facilities for marriage ceremonies, consistent with their religious principles. In addition, religious entities will not be subject to any legal action for refusing marriage ceremonies. The Act will grant equal access to the government-created legal institution of civil marriage while leaving the religious institution of marriage to its own separate and fully autonomous sphere. Additionally, the Act was amended to include a clause that states that if any part is deemed invalid through the judicial process and after all appeals in the courts, the entire Act would be considered invalid.

Wednesday, June 22, 2011

Important New Decisions - June 22, 2011

Need to Give Appropriate Weight to the Feasibility of Preserving the Relationship Between the Parent and the Child Does Not Take Precedence over the Need to Give Appropriate Weight to the Economic Necessity for the Relocation

In Matter of Butler v Hess, --- N.Y.S.2d ----, 2011 WL 2436589 (N.Y.A.D. 4 Dept.) Petitioner father commenced a proceeding seeking to modify the parties' existing custody arrangement, pursuant to which the parties had joint custody with primary physical residence with respondent mother and visitation with the father. The father sought to prevent the mother from relocating with the child to Pennsylvania and sought sole custody of the child. The mother filed a cross petition in which she sought permission for the child to relocate with her to Pennsylvania. On appeal the Appellate Division agreed with her contention that Family Court erred in denying her cross petition. The record established that, pursuant to the existing arrangement, the father had visitation with the child on alternate weekends and Sunday overnights on the first Sunday of every month that does not fall within his regular access time. The mother remarried in December 2003, when the child was six years old, and the mother and the child began living with the mother's husband at that time. In December 2006, the mother lost her job as a result of budget cutbacks and, in July 2007, the mother's husband lost his job after his position was eliminated. The mother's husband accepted a job in Pennsylvania in October 2007, which was the basis for the mother's cross petition seeking permission to relocate with the child to Pennsylvania to join her husband. The Court concluded that the mother established by the requisite preponderance of the evidence that the proposed relocation would serve the child's best interests" (Matter of Tropea v. Tropea, 87 N.Y.2d 727, 741). While no single factor is determinative, the Court of Appeals in Tropea recognized that economic necessity may present a particularly persuasive ground for permitting the proposed move. The record reflected that the court did not adequately, if at all, consider the financial considerations underlying the requested relocation. The mother requested permission to relocate because she and her husband lost their jobs within a relatively short period of time. The mother's husband testified that both his health insurance, which also covered the mother and the child, and his severance pay ran out in August 2007. After the mother's husband lost his job, he and the mother depleted their savings and their house was placed into foreclosure. The mother and her husband testified that they unsuccessfully attempted to locate jobs in Western New York and that the mother's husband accepted the job in Pennsylvania out of financial necessity. The court based its determination primarily on its conclusion that the relocation would "qualitatively affect" the child's relationship with the father.
That was error because the need to 'give appropriate weight to the feasibility of preserving the relationship between the parent without primary physical custody and [the child through suitable visitation arrangements does not take precedence over the need to give appropriate weight to the economic necessity for the relocation (Matter of Cynthia L.C. v. James L.S., 30 AD3d 1085, 1086, quoting Tropea, 87 N.Y.2d at 740-741). The record established that the proposed relocation would not have a substantial impact on the visitation schedule. The mother and the husband testified that they would transport the child to and from Pennsylvania every other weekend, and they offered to pay for a hotel for the father in Pennsylvania on his off-weekends so that he could exercise additional access with the child. The mother further testified that the holiday access schedule would remain the same because she and her husband would be returning to Western New York at those times to visit with their respective families, who resided there. In addition, the mother's husband purchased video conferencing equipment for his household and the father's household to enable the father and the child to communicate during the week and on the father's off-weekends. Thus, the mother established "the feasibility of preserving the relationship between the [father] and child through suitable visitation arrangements" (Tropea, 87 N.Y.2d at 741)


Appeal Denied For Failure to Assemble Proper Record

In Gorelik v Gorelik, --- N.Y.S.2d ----, 2011 WL 2410437 (N.Y.A.D. 2 Dept.) the Appellate Division pointed out that it is the obligation of the appellant to assemble a proper record on appeal, which must include any relevant transcripts of proceedings before the Supreme Court. The plaintiff sought review of the judgment awarding the defendant the principal sum of $12,257, representing his pro rata share of the children's unreimbursed medical expenses and 100% of their summer camp expenses, made after a hearing was held to determine the validity and reasonableness of the claimed expenses. However, the plaintiff failed to include the hearing transcripts in the record on appeal. Accordingly, the record was inadequate to enable the Court to render an informed decision on the remaining issues raised in the plaintiff's brief including the propriety of the amounts awarded.


Allegations That Father Was Induced by Mother's Misrepresentations of Her Financial Circumstances to Enter into Stipulation Were Sufficient to Warrant Hearing on Issue of Fraudulent Inducement

In Cervera v Bressler, --- N.Y.S.2d ----, 2011 WL 2410503 (N.Y.A.D. 2 Dept.) pursuant to the decision and order of the Appellate Division (Cervera v. Bressler, 50 AD3d 837), a hearing was commenced on June 10, 2008, before a Special Referee Snyder, to consider the parties' relative financial positions and address the father's applications for reapportionment of the parties' respective obligations for payment of fees of the forensic evaluator and the attorney for the child from the 50/50 apportionment originally agreed to, and for an award of an attorney's fee. While that hearing, which concluded sometime in October 2009, was ongoing, the father moved to vacate certain portions of a so-ordered stipulation dated July 19, 2004 whereby the father waived his right to seek an attorney's fee and reapportionment of fees and costs of the court forensic evaluator and the attorney for the child incurred up to the date of the stipulation, in connection with a custody dispute between the parties beginning in 2002. In support of the motion, the father argued that those portions of the stipulation should be vacated based upon new evidence discovered during the ongoing hearing regarding the parties' finances, that the mother had misrepresented her finances in 2004. The father claimed that he had relied upon those misrepresentations in entering into the stipulation in which he agreed to waive his rights. Supreme Court denied that branch of the plaintiff's motion which was to vacate the aforementioned portions of the stipulation, determining that the claims regarding the stipulation and fees incurred in connection with the litigation resolved thereby, were barred by the doctrine of collateral estoppel, that the father had failed to meet his burden of showing that the stipulation was the result of fraud or overreaching, or that its terms were unconscionable, and that, in any event, even if the stipulation was proven to have been procured by fraud, the father had ratified it by accepting its benefits for a period of more than five years.

The Appellate Division reversed and remitted for a hearing. It held that the father's allegations that he was induced by the mother's misrepresentations of her financial circumstances to enter into the stipulation were sufficient to warrant a hearing on the issue of whether those portions of the stipulation were fraudulently induced. The father's allegations were supported by evidence, elicited at the hearing before the Special Referee regarding the financial circumstances of the parties, that the mother had assets available to her in 2004 of at least $306,631, her husband's gross income as reported on their joint tax returns for 2004, as opposed to the $105,000 gross income reported on her Statement of Net Worth dated May 3, 2004, the sole document provided by her at the time of the stipulation. Moreover, the mother's 2004 joint bank statements provided at the hearing before the Special Referee showed deposits totaling approximately $450,000 for that year, whereas the 2004 Statement of Net Worth was blank for "Total Cash Accounts."
Supreme Court erred in determining that the father was barred by the doctrine of collateral estoppel from litigating the issues of counsel fees and reapportionment of the parties' responsibilities for payment of fees incurred in connection with litigation from 2002 up to the date of the stipulation. "In order to invoke the doctrine of collateral estoppel, (1) the identical issue must have necessarily been decided in the prior [litigation] and be decisive of the present [motion], and (2) the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination". The issues regarding the fees incurred prior to the stipulation were never litigated, since the father waived his right to do so by the stipulation at issue herein.
The Appellate Division held that Supreme Court erred in concluding that the father had "knowingly and voluntarily" waived his rights to litigate these issues, since the question raised by the new evidence was precisely that: whether the father's waiver was knowing and voluntary, or whether it was fraudulently induced by the mother's misrepresentations.
As to the father's right to move to vacate portions of the stipulation almost five years after the stipulation was entered into, a waiver will not be inferred from mere silence or inaction. A waiver requires that the party to be estopped be aware of certain facts and, being aware of them, elect not to take advantage of them.
Moreover, estoppel will lie only where an individual has accepted the benefits of an agreement. Since the father did not have express knowledge of the mother's assets until sometime during the hearing regarding the parties' relative financial positions, which commenced on June 10, 2008, and concluded in October 2009, the father could not be said to have waived his right to seek vacatur of the stipulation simply because his motion was brought almost five years after the stipulation was entered into and there was no evidence that the father enjoyed any "benefits" of the stipulation by foregoing a possible award of an attorney's fee or reimbursement of payment of fees based upon a reapportionment of the parties' responsibilities for the same.

Wednesday, June 15, 2011

Important New Decisions - June 15, 2011

Fair Trial Denied Where Family Court Judge Took on the Function and Appearance of an Advocate

In Matter of Jacquilin M, 83 A.D.3d 844, 922 N.Y.S.2d 111 (2 Dept, 2011) Jacqulin M. appealed from an order of disposition of the Family which, upon a fact-finding order of a hearing, finding that the appellant committed acts which, if committed by an adult, would have constituted the crimes of grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree, adjudged her to be a juvenile delinquent, and placed her on probation for a period of 18 months. The order of disposition was reversed on the law and as a matter of discretion in the interest of justice, the fact-finding order was vacated, and the matter is remitted to the Family Court for a new fact-finding hearing. The appellant's contention that she was deprived of a fair trial because the Family Court Judge took on the function of an advocate by excessively intervening in the fact-finding hearing was unpreserved for appellate review. However, the Appellate Division reached this issue in the exercise of its interest of justice jurisdiction because the Family Court Judge's excessive intervention deprived the appellant of her right to a fair fact-finding hearing. It observed that although trial courts may appropriately take an active role in the presentation of evidence "in order to clarify a confusing issue or to avoid misleading the trier of fact" (People v. Arnold, 98 N.Y.2d 63, 67, 745 N.Y.S.2d 782, 772 N.E.2d 1140), the function of the judge is "to protect the record at trial, not to make it". Thus, while a certain degree of judicial intervention in the presentation of evidence is permissible, "the line is crossed when the judge takes on either the function or appearance of an advocate at trial" (People v. Arnold, 98 N.Y.2d at 67, 745 N.Y.S.2d 782, 772 N.E.2d 1140; see People v. Zamorano, 301 A.D.2d 544, 546, 754 N.Y.S.2d 645). These principles apply in bench trials, including juvenile delinquency proceedings. Here, the Family Court Judge took on the function and appearance of an advocate by extensively participating in both the direct and cross-examination of the two presentment agency witnesses and eliciting testimony which strengthened the presentment agency's case. Furthermore, when the appellant indicated, during the course of her direct examination, that a certain document which would support her defense had been turned over to a Probation Department officer, the Judge interrupted her testimony to question a Probation Department Court Liaison who was present in the courtroom about whether documents of this nature would indeed be kept by the Probation Department. The Judge then summoned the Probation Department officer assigned to the appellant's case to the courtroom, and indicated to the appellant's attorney that unless he agreed to stipulate as to what certain Probation Department records would reflect, those records would be admitted into evidence through the Probation Officer's testimony. It was clear from the record that neither the presentment agency nor the appellant's attorney intended to call the Probation Officer as a witness or enter the Probation Department records into evidence, and the stipulation regarding what those records reflected had the effect of rebutting a portion of the appellant's testimony. Thus, the Judge essentially "assumed the parties' traditional role of deciding what evidence to present" . Furthermore, the Judge offered no explanation on the record as to why he felt compelled to solicit this evidence. Under these circumstances, a new fact-finding hearing was warranted.


Third Department Explains Difference Between in Camera Hearing and True Lincoln Hearing

In Matter of Spencer v Spencer, --- N.Y.S.2d ----, 2011 WL 2150028 (N.Y.A.D. 3 Dept.) the parties were the parents of three children (born in 1997, 1999 and 2001). In their divorce judgment, the parties agreed to joint legal custody, physical placement with respondent (mother), and visitation with petitioner (father) every other weekend. In 2009, the father commenced a proceeding seeking to modify the custodial arrangement based upon an improper relationship that the mother's male friend had with one of the parties' children while in the mother's care. Family Court temporarily placed the children with the father. After several court appearances and an in camera interview with each of the children, the court issued an order awarding primary physical custody to the father and extensive visitation to the mother. The Appellate Division found that the mother did not consent to the court making and order without a hearing, and held that Family Court erred by modifying the custody order without holding a fact-finding hearing. The father's petition adequately alleged a change in circumstances, namely that the mother exposed the children to a convicted sex offender and she was aware that this individual had an inappropriate relationship with one of the children. The mother admitted that an inappropriate relationship occurred, but denied knowing about it. The parties disagreed about most of the other allegations. The mother specifically objected to the court's failure to hold a hearing, and the court lacked record information that would permit it to determine whether the alleged change in circumstances required a modification of the prior custody order .A court may not grant a final order based upon mere allegations and a request by an attorney for a party or the children; evidentiary proof is required. Thus, it reversed the order on the law and remitted for Family Court to hold a hearing on the petition.
The Appellate Division observed that Family Court and the parties inaccurately referred to the in camera interviews with the children as a Lincoln hearing. The purpose of a Lincoln hearing in a custody proceeding "is to corroborate information acquired through testimonial or documentary evidence adduced during the fact-finding hearing" (Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 273 [1969] ). Thus, a true Lincoln hearing is held after, or during, a fact-finding hearing; there is no authority or legitimate purpose for courts to conduct such interviews in place of fact-finding hearings, and Family Court erred in doing so here. Additionally, it cautioned the court to protect the children's right to confidentiality by avoiding disclosure of what children reveal in camera during a custody proceeding.


Unsubstantiated Allegations Insufficient to Warrant the Invocation of Temporary Emergency Jurisdiction under UCCJEA.

In Segovia v Bushnell, --- N.Y.S.2d ----, 2011 WL 2150113 (N.Y.A.D. 3 Dept.) Respondent, the mother of two sons (born in 1999 and 2002), refused to release the children to the paternal grandparents for visitation and instead brought them to New York from Texas. A Texas court thereafter issued a temporary order granting custody to the father and petitioner, the paternal grandmother. Petitioner then commenced a proceeding seeking registration and enforcement of the Texas order ( Domestic Relations Law 77-d, 77-g). Respondent did not contest registration of the Texas order, but requested that Family Court exercise temporary emergency jurisdiction based on her allegations that the paternal grandparents had sexually abused the children (Domestic Relations Law 76-c). Family Court placed the children in the temporary custody of the Department of Social Services and ordered an investigation into respondent's allegations. Upon conclusion of the investigation, Family Court found the allegations to be unfounded and granted enforcement of the Texas order.
The Appellate Divison affirmed. Family Court heard, without objection, testimony that the children met with a local sexual abuse validator who determined that there was no sexual abuse, and it reviewed an investigative report prepared by authorities in Texas after respondent made the same allegations there. The Texas authorities conducted an exhaustive review and found no evidence to substantiate the allegations of sexual abuse. In light of the information rebutting respondent's claims, it agreed with Family Court that her unsubstantiated allegations were insufficient to warrant the invocation of temporary emergency jurisdiction.


The Rights and Needs of the Children Must Be Accorded the Greatest Weight in a Relocation Case

In Alaire K.G. v Anthony P.G.,--- N.Y.S.2d ----, 2011 WL 2135385 (N.Y.A.D. 1 Dept.) the First Department, in an opinion by Justice Moskowitz, observed that the appeal, involving a custodial parent's request to relocate with the parties' child, fell within the class of cases that "present some of the knottiest and most disturbing problems that our courts are called upon to resolve" (Matter of Tropea v. Tropea, 87 N.Y.2d 727, 736 [1996] ). The parties were married in January 2004, separated about a year and a half later and were divorced on July 13, 2006. They were the parents of a now six-year-old boy born on May 17, 2004. The stipulation settling the divorce case granted the mother legal and physical custody of the child. The father had visitation every week from Monday at 8:00 p.m. until Wednesday at 6:00 p.m. The stipulation allowed relocation within 25-miles of the father's house in the Bronx.
The father had a history of irregular employment and was currently not employed. At the time of trial, the mother, who was remarried, cared for her younger child from her second marriage, full time. After the parties separated, the mother remained in the marital apartment in the Bronx with the child for two years. In the fall of 2007, she began working as a project administrator in the construction field. In 2007, she moved with the child and her boyfriend to Connecticut. The mother testified that she always wanted her son to be in a suburban environment. She stated that she was trying "to mirror my own childhood. I had a wonderful suburban upbringing." The relationship in Connecticut ended when the boyfriend returned to his native New Zealand. The mother returned to New York with the child and moved into an apartment in Harlem. In March 2008, the mother met her future husband, Hugh Bonnar, on Match.com. Bonnar was retired from the Air Force, lived in North Carolina and was then involved in a nation-wide job search. Ultimately, Bonnar took a job with Northrop Grumman in San Diego. He had requested to work at Northrop Grumman's Long Island branch, but the company could not accommodate his request. The mother and Bonnar became engaged in May 2008. Soon after her engagement, the mother approached the father about moving to California to live with Bonnar. The father was concerned about the distance and the stability of the mother's new relationship. The parties therefore met with a mediator to try to work out an arrangement by which the mother could leave the child with the father temporarily while she settled in California. The mediator sent a letter, dated May 12, 2008, that purported to memorialize the parties' agreement. The letter stated that the parties agreed that the child would stay with the father from June 27, 2008 until December 31, 2008, with the mother making several long weekend visits to New York. Mother and son were also to participate in a webcam phone call two to three times a week. The letter did not address where the child would live after December 31, 2008. However, the father refused to sign an agreement embodying these terms and instead asked the mother to sign over custody to him. She refused. The mother left for California on June 26, 2008. She claimed that she never intended the father to have permanent custody, but arrangements to move to California had become irreversible by the time she learned that the father did not agree. The mother gave birth to Bonnar's son on April 4, 2009. She and Bonnar were also married in April 2009.
On July 17, 2008, the father filed a petition seeking sole legal and physical custody of the parties' child, claiming that the mother had abandoned the child. On December 1, 2008, the mother filed a petition for relocation.
Justice Moskowitz pointed out that each relocation request must be considered on its own merits with due consideration of all relevant facts and circumstances and with the predominant emphasis being placed on what outcome is most likely to serve the best interests of the child" (citing Tropea v. Tropea 87 N.Y.2d 727, 739 [1996] ). The dissent stated that Tropea dictates that the court's "central concern" should be the impact of the move on the relationship between the child and the noncustodial parent. Justice Moskowitz held that this interpretation misreads the case. Tropea states that "[o]f course, the impact of the move on the relationship between the child and the noncustodial parent will remain a central concern." However, it is not "the" central concern. Rather, the case makes abundantly clear that "it is the rights and needs of the children that must be accorded the greatest weight". She noted that the Court of Appeals rejected the "three-tiered" analysis that required a court to determine first "whether the proposed relocation would deprive the noncustodial parent of regular and meaningful access to the child".
The court found that there was a sound and substantial basis in the record for the determination granting the mother's request to relocate to California with her son. First, there was no question that the California home was financially more stable than the father's home. The stepfather had a steady job with Northrop Grumman that provided his family with health insurance. By contrast, the father was not currently working. Although he had been offered a job as a teacher's aide, he had postponed his start date. He was currently on some type of public assistance and received money from his parents in Ireland. He admitted that "it's not been easy like money wise." He was not currently in a relationship. Given his bleak financial circumstances, with no career or family in New York, it appeared that there was nothing keeping the father from moving to San Diego himself to be closer to his son. The Court quoted that part of Tropea, 87 N.Y.2d at 740 which said"where the custodial parent's reasons for moving are deemed valid and sound, the court in a proper case might consider the possibility and feasibility of a parallel move by an involved and committed noncustodial parent as an alternative to restricting a custodial parent's mobility". Further, living in San Diego ensured that the child would grow up in the same house as his half brother. The father agreed that it was very important for the child to have a brother in his life. He even testified that he actually expected the child eventually to move to California so that he could be with his brother, the father was merely opposed to the date of the move. The mother established that the child would have access to an education that was just as good as, if not better than, his school in New York. Moreover, she testified that Bonnar's status as a veteran would allow the child to attend college within the State of California's university system free of charge. The record also reflected that the mother went out of her way to facilitate communication between the child and his father. The same could not be said of the father with respect to communication between the child and his mother. Finally, the child's own attorney recommended that the court permit the mother to relocate with the child, a factor that militated in favor of affirming the result the court reached.
Justice Moskowitz commented that the dissent's characterization of the mother as putting her own romantic interests ahead of her son's welfare was rank speculation. It was just as likely that the mother, herself an only child, was pursuing marriage aggressively to produce a sibling for her son, before he became much older, and an intact family. Regardless of the mother's motivations, it is the best interest of the child that must guide the decision.
The Court found that the visitation schedule, that required the mother to pay for air travel for the child to be with the father on numerous extended weekend visits throughout the year in addition to extended summer and holiday visits, did not deprive the father of the opportunity to maintain a close relationship with his son .


Memorandum of Understanding Was Not a Final Agreement Even Thought it Contemplated Parties' Subsequent Execution of "Opting-out Agreement”

In Vega v Papaleo, --- N.Y.S.2d ----, 2011 WL 2224860 (N.Y.A.D. 3 Dept.) Plaintiff commenced the action for divorce in 2006 on the ground of cruel and inhuman treatment. In 2008, after engaging in protracted litigation and settlement negotiations, the parties, both of whom were represented by counsel, signed a memorandum of understanding (MOU) that provided for distribution of the parties' marital assets. Plaintiff's attorney then notified Supreme Court that the matter had been resolved and the case, which had been scheduled for trial, was removed from the trial calendar. Thereafter, plaintiff was presented with a settlement agreement but refused to sign it. Plaintiff subsequently retained new counsel and the matter was restored to the trial calendar. After several pretrial conferences, Supreme Court granted a motion by defendant for summary judgment, seeking a judgment granting plaintiff a divorce and incorporating, but not merging, the terms of the MOU into the judgment of divorce. A judgment of divorce was entered accordingly, prompting this appeal by plaintiff.
On appeal Plaintiff argued that the MOU was not an enforceable agreement and that, even if it is enforceable, it should be set aside on the basis that her attorney fraudulently induced her to sign the document by misrepresenting its legal significance. The Appellate Division affirmed. It found that as the movant for summary judgment, defendant met his initial burden of demonstrating that the MOU was an enforceable agreement under Domestic Relations Law 236(B)(3), as the document, itself was in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded" (Domestic Relations Law 236[B] [3]; see CPLR 2104). Plaintiff conceded that the MOU met the statutory requirements. Her argument that it was not enforceable because it was not "endorsed" in open court was unavailing, as there is no requirement that a properly executed written settlement agreement be so endorsed Thus, the burden shifted to plaintiff to demonstrate by the proffer of admissible evidence the existence of material issues of fact requiring a trial. To that end, plaintiff submitted her own affidavit, and the affirmations of her current attorney and a friend who accompanied her to her then attorney's office on the day she signed the MOU. According to those submissions, plaintiff did not wish to sign the MOU because it did not address certain assets, but she ultimately signed it based upon her then attorney's assurances that those issues could be raised at a later time. Plaintiff alleges that she would not have signed the MOU if she had known that it would be considered a final agreement. As to the merits, plaintiff had not alleged that defendant, or anyone acting on defendant's behalf, perpetrated any fraud or duress upon her. While plaintiff may have other remedies available to her, her allegations--relating solely to her attorney's conduct–were insufficient to set aside the MOU.
The Appellate Division also rejected plaintiff's argument that the MOU was not a final agreement because it contemplated the parties' subsequent execution of an "opting-out agreement." The MOU provided that it "will be incorporated into a full opting-out agreement to be signed by the parties containing these terms and only those other terms which are necessary to have a full and complete opting-out agreement, but due to the time constraints, [the parties] may not have the ability to finalize an opting-out agreement prior to the date scheduled for trial." The MOU then goes on to address, in detail, numerous issues including, among other things, a division of various items of real property, business interests, bank accounts, retirement accounts, marital debt and maintenance payments. It also contained a provision that "any additional terms and agreements to be contained within the opting-out agreement shall not alter or change any of the terms or conditions set forth in this [MOU]." Although the MOU directed entry into a further agreement, its terms were not contingent upon entry into such agreement. Accordingly, plaintiff failed to raise a question of fact sufficient to defeat defendant's motion.


Second Department Holds That 529 Plan College Fund Is Not a Bank Account under Stipulation for Divison of Assets

In Zuchowski v Zuchowski, --- N.Y.S.2d ----, 2011 WL 2279060 (N.Y.A.D. 2 Dept.) the parties 2009 stipulation of settlement, which was incorporated but did not merge into their judgment of divorce that was entered on June 17, 2009 provided that "all joint bank accounts have been split to the mutual satisfaction of the parties and here and forward each party shall keep any bank accounts in their respective names; namely, the wife in her name, the husband in his name." The stipulation also provided that "each party is responsible to pay the 50/50 share of college" for their children, but "the children shall avail themselves of every possible loan, grant or any other moneys offered to them by the college before the parties are respectfully [sic] required to contribute towards the education of the children." In an order dated January 11, 2010, the Supreme Court granted the defendant former husband's motion which was, in effect, to direct the plaintiff former wife to provide him with quarterly statements relating to a "529 Plan" sponsored by the State of New Hampshire and managed by Fidelity Investments, which the parties had established as a college fund for their son Peter, and to apply the money in the subject account to Peter's college expenses before either party would be required to contribute to such expenses. The former wife moved for leave to reargue, contending that since the 529 Plan was in her name, it was, under the terms of the stipulation of settlement, separate property belonging to her, and thus should be applied to reduce only her share of Peter's college costs. The account statements named the former wife as the "participant" and Peter as the "beneficiary," and the record indicated that the participant is considered to be the owner of the account assets until they are withdrawn. Supreme Court granted the former wife's motion and, upon reargument, vacated the portion of its January 11, 2010, order relating to the 529 Plan.
The Appellate Divison reversed on the law. It observed that when interpreting a contract, the court should arrive at a construction which will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized. Contrary to the former wife's contention, the stipulation of settlement could not reasonably be interpreted as treating the 529 Plan as one of the "bank accounts" that the party named as the account holder was entitled to "keep." While the stipulation of settlement provided that "all joint bank accounts have been split to the mutual satisfaction of the parties," there was nothing in the stipulation to support a finding that the parties intended the monetary assets they were allocating between themselves to include Peter's college fund. Although the former wife was technically the owner of the funds in the 529 Plan, the reason for that account's existence was not to personally benefit either of the parties, but to fund Peter's college education. Accordingly, upon reargument, the Supreme Court should have adhered to its original determination directing the former wife to provide the former husband with quarterly statements relating to the 529 Plan, and to apply the money in that account to Peter's college expenses before either party would be required to contribute to such expenses.


Failure to Agree on a Modified Visitation Schedule Is Not a "Default” for Purposes of Attorneys Fee Provision

In Matter of Allegretti v Fitzpatrick, --- N.Y.S.2d ----, 2011 WL 2279571 (N.Y.A.D. 2 Dept.) the Appellate Division held that the Family Court did not err in denying her motion for an award of an attorney's fee in connection with her petition to modify the visitation provisions set forth in a stipulation that was incorporated but not merged into the parties' judgment of divorce. The stipulation provided, among other things, that the parties were to "re-evaluate" the established visitation arrangements when their child began school. The stipulation also provided that in the event that either party defaulted with respect to their obligations thereunder, that party would be responsible for paying the attorney's fee incurred by the other party in an enforcement proceeding. The Family Court correctly concluded that the parties' failure to agree on a modified visitation schedule once their child began school did not constitute a "default" under the terms of the stipulation. Accordingly, the Family Court properly denied the mother's motion for an award of an attorney's fee.

Wednesday, June 01, 2011

Important New Decisions - June 1, 2011

Family Court's Determination That the Subject Child Was Emancipated Pursuant to the Terms of the Parties' Stipulation Did Not Preclude the Subject Child from Filing His Own Support Petition

In Wakefield v Wakefield, --- N.Y.S.2d ----, 2011 WL 2089752 (N.Y.A.D. 2 Dept.) the parties October 2006 stipulation of settlement, which was incorporated but not merged into their judgment of divorce provided for joint legal custody of their two children. It further provided that the mother would have physical custody of the children and that both parents would provide child support until the happening of an emancipating event, which included either of the children's "permanent residence away from the residence of the wife." The parties were divorced on January 29, 2007, and, in October 2008, the subject child moved from his mother's home to the father's home. In March 2009 the father filed a petition seeking to modify the support provisions of the stipulation of settlement so as to receive child support from the mother, upon the ground that the subject child was living with him. After a hearing, the Support Magistrate granted the petition, finding that the subject child's residence with the father constituted a change in circumstances warranting an award of child support to the father. Family Court granted the mother's objections to the extent of "deeming" the subject child to be emancipated pursuant to the parties' stipulation, and dismissed the father's petition. On September 24, 2009, the subject child filed his own petition seeking support from his mother. At a hearing on the petition, both the subject child and the father testified that the subject child was 18 years old, that he lived with the father, and that he attended Suffolk Community College full time. In an order dated February 8, 2010, the Support Magistrate granted the subject child's support petition. Family Court denied the mother's objection to the order dated February 8, 2010, rejecting her contention that the subject child was emancipated and, not entitled to child support. It also rejected the mother's contentions that the award was not based upon adequate evidence, and that a child who commences a support proceeding on his or her own behalf may not be awarded an attorney's fee. The Appellate Division held that the Family Court's determination that the subject child was emancipated pursuant to the terms of the parties' stipulation did not preclude the subject child from filing his own support petition. "A husband and wife, in entering into a separation agreement, may include in that agreement provisions pertaining to the support of the children of their marriage. The terms, like any other contract clauses, are binding on the parties to the agreement. The child, on the other hand, is not bound by the terms of the agreement ... and an action may be commenced against [a parent] for child support despite the existence of the agreement" (citing Matter of Boden v. Boden, 42 N.Y.2d 210, 212). Since the subject child moved from his mother's residence to the father's residence with his parents' consent, the subject child was entitled to adequate support from his mother. It also held that the Family Court properly rejected the mother's contention that the child was not entitled to an award of an attorney's fee (citing Family Ct Act 422 [a], 438[a] ).

Motions to Enforce the Terms of a Stipulation of Settlement Are Not Subject to Statutes of Limitation. An Application or Motion for the Issuance of a QDRO Is Not Barred by the Statute of Limitations

In Denaro v Denaro, --- N.Y.S.2d ----, 2011 WL 2090821 (N.Y.A.D. 2 Dept.) the plaintiff former wife and the defendant former husband, who was a police officer employed by the New York City Police Department, were married in 1981. By a judgment entered July 2, 1997, they were granted an uncontested divorce. In a Stipulation and Agreement of Settlement, which was incorporated but not merged into the judgment of divorce, the parties agreed that the plaintiff would be entitled to a certain percentage of the marital portion of the defendant's police retirement benefits. The parties acknowledged in the stipulation that a valuation of those benefits had been performed, and they agreed that that valuation would "be utilized to prepare a Qualified Domestic Relations Order to be submitted to the Court as soon as practicable after the Judgment of Divorce is signed." No Qualified Domestic Relations Order was submitted at that time. The defendant retired from the NYPD in 2003, after 20 years of service, and he began collecting his pension. In January 2010 the plaintiff submitted a proposed QDRO to the Supreme Court, requesting the Supreme Court to enforce the stipulation to the extent of issuing an appropriate QDRO. The defendant moved to vacate the retirement provision of the stipulation. Supreme Court granted the plaintiff's application and denied the defendant's motion. The Appellate Division held that contrary to the defendant's contention, the statute of limitations does not bar issuance of the QDRO. It held that motions to enforce the terms of a stipulation of settlement are not subject to statutes of limitation.. Because a QDRO is derived from the bargain struck by the parties at the time of the judgment of divorce, there is no need to commence a separate 'action' in order for the court to formalize the agreement between the parties in the form of a QDRO. It pointed out that the Court had expressly held that an application or motion for the issuance of a QDRO is not barred by the statute of limitations (citing Bayen v. Bayen, 81 AD3d at 866-867). The defendant also contended that the plaintiff's failure to submit the QDRO to the Court within 60 days of entry of the divorce judgment (see 22 NYCRR 202.48) barred its issuance thereafter. The Appellate Division found defendant's contention to be without merit because that court rule does not apply to a QDRO, which is merely a mechanism to effectuate payment of a party's share in a retirement plan. The plaintiff's right to her share of the defendant's pension was created by the stipulation and the judgment of divorce, and it was not abandoned when the QDRO was not filed within 60 days. It also rejected the defendant's claim that the doctrine of laches barred the plaintiff's entitlement to the QDRO. Invocation of laches requires a showing of both delay and prejudice. The delay in submitting a QDRO for execution was lengthy, but the defendant had not shown any prejudice to himself resulting from the plaintiff's delay. The Court also rejected defendant's claim that the plaintiff waived her right to her share of the defendant's retirement benefits. The plaintiff's delay in submitting the QDRO to the Supreme Court did not evince an intent to waive her rights. Waiver does not result from negligence, oversight, or inattention, and it may not be inferred merely from silence.

An Interim Restraint on the Disposition or Encumbrance of Property Should Not Be Imposed Absent a Demonstration That the Party to Be Restrained Has Done, or Is Threatening to Do, an Act Which Would Prejudice the Movant's Equitable Distribution Claim.

In Many V Many, --- N.y.s.2d ----, 2011 Wl 1902259 (N.y.a.d. 2 Dept. The Wife Appealed from an Order Denying Her Motion to Restrain the Defendant Husband from Encumbering the Marital Residence, and in Effect, Authorized the Defendant to Refinance the Equity in the Marital Residence and to Use Any Funds Obtained Therefrom for the Sole Purpose of Paying His Pendente Lite Maintenance Obligation. The Order Also Directed the Defendant to Pay Arrears for His Pendente Lite Maintenance Obligation Retroactive to Only February 1, 2010, and Awarded Her an Attorney's Fee of $15,000. The Appellate Division Held That Supreme Court Did Not Improvidently Exercise its Discretion in Failing to Restrain the Defendant Husband from Encumbering the Marital Residence. It Pointed out That an Interim Restraint on the Disposition or Encumbrance of Property Should Not Be Imposed Absent a Demonstration That the Party to Be Restrained Has Done, or Is Threatening to Do, an Act Which Would Prejudice the Movant's Equitable Distribution Claim. Here, No Evidence Indicated That the Defendant Had Done, or Was Threatening to Do, an Act That Would Threaten the Plaintiff's Equitable Distribution Claim. The Court Noted That While the Plaintiff May Be Entitled to an Equitable Share of the Value of the Marital Residence, That Issue Had Yet to Be Adjudicated. At a Later Date, the Supreme Court Would Be Able to Ensure That the Plaintiff Was Reimbursed for Her Equitable Share of Any Funds Used by the Defendant as a Result of the Sale or Refinancing of the Marital Residence to Meet His Pendente Lite Maintenance Obligation.

Family Court Act Provides for the Award of an Attorney's Fee Only to a Prevailing Party in a Violation Proceeding

In Matter of Shvetsova v Paderno, --- N.Y.S.2d ----, 2011 WL 1902198 (N.Y.A.D. 2 Dept.) the father appealed from an order of the Family Court which denied his objection to an order of the Court which granted the mother's motion for an award of an attorney's fee and awarded her $11,500. The Appellate Division observed that the attorney's fee at issue was awarded to the mother for legal fees she incurred in defending against the father's petition for a downward modification of his child support obligation, and in prosecuting her petition to hold the father in civil contempt for his alleged violation of a prior support order. In a related appeal, it reversed the Family Court's denial of the father's petition for downward modification of his child support obligation and remitted the matter to the Family Court for a new determination of the father's child support obligation and arrears. In light of the decision and order in the related appeal, it reversed the award of an attorney's fee to the mother insofar as it was in connection with her defense against the father's petition. In addition, in the same related appeal, it reversed the Family Court's finding that the father willfully violated the prior support order. Therefore, although the Family Court Act provides for the award of an attorney's fee to a prevailing party in connection with a violation proceeding (see Family Ct Act 438 [b] ), here, the mother was not entitled to such an award. Accordingly, it directed that after the Support Magistrate makes a new determination of the father's petition for a downward modification of his child support obligation, in accordance with its decision and order in the related appeal, the Support Magistrate shall make a new determination on the mother's motion for an award of an attorney's fee. Any award of an attorney's fee, if warranted, shall be limited to fees incurred in connection with the mother's defense against the father's petition.

Family Court Act 1028 Hearing Is Triggered by the Removal of a Child from the Home

In Matter of Lucinda R, --- N.Y.S.2d ----, 2011 WL 1902203 (N.Y.A.D. 2 Dept.) the question presented on this appeal was whether a Family Court Act 1028 hearing is triggered by the removal of a child from the home of one parent and temporary placement into the custody of another parent or relative, or whether such hearing is triggered only where a child is placed into government-administered foster care. The Appellate Division concluded that the Family Court erred in denying the mother's application for a hearing under Family Court Act 1028. In relevant part, that section provides: "(a) Upon the application of the parent or other person legally responsible for the care of a child temporarily removed under this part or upon the application of the [attorney for the child] for an order returning the child, the court shall hold a hearing to determine whether the child should be returned (i) unless there has been a hearing pursuant to [Family Court Act 1027] on the removal of the child at which the parent or other person legally responsible for the child's care was present and had the opportunity to be represented by counsel, or (ii) upon good cause shown. Except for good cause shown, such hearing shall be held within three court days of the application and shall not be adjourned." The disposition of the mother's application here turned on the meaning of the word "removal," as used in the statute. The Family Court found that there was no removal within the meaning of Family Court Act 1028 because "when a child is moved from the [petitioner's] home to the non respondent father's home [,] that ... is not a removal and it does not generate a basis for a 1028 hearing." The Family Court reasoned that "1028 hearings protect the primacy of parental right[s] as against the state, not as against the parent vs. parent."
Justice Belen wrote that the Appellate Division disagreed. In assessing the Family Court's interpretation of the statute, it begins with the language of the statute itself, "as the statutory text is the clearest indicator of legislative intent. If the terms of the statute are clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used. On its face, Family Court Act 1028 does not limit a hearing only to parents whose children have been placed in the custody of a governmental agency. There is no qualification to its application whatsoever. It plainly and simply states that, upon the application of a parent of a child who has been temporarily removed, the court shall hold a hearing to determine whether the child should be returned, and this must be done within three court days without adjournment. The Court pointed that that these rules of strict construction, however, cannot be applied without regard to the statute as a whole, as its various sections must be considered together and with reference to each other. The purpose of article 10 of the Family Court Act is to provide a due process of law for determining when the state, through its family court, may intervene against the wishes of a parent on behalf of a child so that the child's needs are properly met. (Family Ct Act 1011). The Appellate Division held that the Family Court's finding of a legal distinction between a child's removal from the home and placement in the custody of another parent, on one hand, and placement in the custody of a governmental agency, on the other hand, was illusory. In either case, it is the State acting within its parens patriae power effectuating that transfer and removal. Accordingly, the Court found that that the applicability of a Family Court Act 1028 hearing is not dependent on whether the child removed is placed with another parent or whether the child is placed in foster care. In sum, the trigger is that the State has acted to effectuate the removal of the child from the home and placed him or her in the custody of another.

Allegations of a Family Offense Are Not Subject to the Defense of Laches or Statute of Limitations. The Issue in Family Offense Matters Is Not the Age of the Threat but the Imminence of the Danger.

In Matter of Opray v Fitzharris, --- N.Y.S.2d ----, 2011 WL 1902204 (N.Y.A.D. 2 Dept.), the wife initiated a family offense proceeding on or about April 7, 2010, alleging that the husband committed the family offenses of assault and aggravated harassment during various incidents occurring in April 2001 and December 2006, as well as on January 6, 2010, April 3, 2010, and April 6, 2010. The Appellate Division held that the Family Court properly dismissed allegations in the petition regarding incidents alleged to have occurred in April 2001 and December 2006. It pointed out that allegations of a family offense are not subject to the defense of laches or statute of limitations (citing Matter of Ashley P., 31 AD3d 767, 769; Matter of Nina K. v. Victor K., 195 Misc.2d 726, 727). The issue in family offense matters is not the age of the threat but the imminence of the danger. (Matter of Nina K. v. Victor K., 195 Misc.2d at 727). Here, in addition to the remoteness of the allegations, the Family Court properly determined that they did not bear upon the existence of an "immediate and ongoing danger" to the wife or children (see Family Ct Act 827). However, it found that the Family Court erred in determining that the wife failed to establish a prima facie case of aggravated harassment with respect to the incident alleged to have occurred on April 6, 2010. In determining a motion to dismiss for failure to establish a prima facie case, the evidence must be accepted as true and given the benefit of every reasonable inference which may be drawn therefrom. The question of credibility is irrelevant, and should not be considered. Here, viewing the wife's testimony in the light most favorable to her, and accepting her testimony as true, the wife failed to establish a prima facie case of assault in the third degree or aggravated harassment in the second degree with respect to the incident alleged to have occurred January 6, 2010. The wife did, however, establish a prima facie case of aggravated harassment in the second degree based on her testimony that during a telephone conversation on April 6, 2010, the husband threatened, among other things, to find her and kidnap the children (see Penal Law 240.30[1][a] ). The petition was reinstated and the matter remitted to the Family Court, for a new fact-finding hearing and for a new determination of the petition with respect to the allegations regarding the events of April 6, 2010.

Defense of Action for Fraudulent Misrepresentation Is Not an Enforcement of Rights Within Meaning of Counsel Fee Provision of Agreement

In Etzion v Etzion, --- N.Y.S.2d ----, 2011 WL 1902589 (N.Y.A.D. 2 Dept.), an action, inter alia, to recover damages for fraudulent misrepresentation in connection with negotiations relating to a stipulation of settlement dated June 8, 2005, which was incorporated, but not merged, into the parties August 16, 2005 judgment of divorce, the facts of the action were set forth in the decision and order on a prior appeal (see Etzion v. Etzion, 62 AD3d 646). On this appeal, the plaintiff contended that the Supreme Court erred in denying her motion pursuant to CPLR 3211(a)(1) and (7) to dismiss a counterclaim asserted by the defendant former husband, Rafael Etzion (defendant), for an award of an attorney's fee pursuant to the terms of a stipulation of settlement entered into by the defendant and the plaintiff on June 8, 2005, or, in the alternative, for summary judgment dismissing the counterclaim. The Appellate Divison observed that the fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent. Where the contract is clear and unambiguous on its face, the intent of the parties must be gleaned from within the four corners of the instrument, and not from extrinsic evidence. Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms. Courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing. Thus, a court will not imply a term where the circumstances surrounding the formation of the contract indicate that the parties, when the contract was made, must have foreseen the contingency at issue and the agreement can be enforced according to its terms. The construction and interpretation of an unambiguous written contract is an issue of law within the province of the court. It found that the defendant's counterclaim for an award of an attorney's fee was based on an overbroad reading of an attorney's fee provision in the parties' stipulation of settlement executed on June 8, 2005 which was subsequently incorporated, but not merged, into their judgment of divorce. The parties' separation agreement, at Article XXV, paragraph 3, stated, in relevant part: "In the event either party is forced to seek aid of counsel in enforcing any rights pursuant to this Stipulation, and in the event that party is successful in enforcing such right(s), the other shall reimburse him or her for any reasonable attorneys' fees necessarily incurred in enforcing such rights. The provisions of this paragraph shall be in addition, and without prejudice or limitation, to any other rights or remedies to which the aggrieved party may be entitled. The parties agree that the purpose of this paragraph is to prevent unnecessary litigation between them and to encourage each to fulfill his or her responsibilities under the terms of this Stipulation as fully as possible" The defendant, in his counterclaim, asserted that he was entitled to an award of an attorney's fee pursuant to the fees provision because he had been forced, in effect, to defend his rights under the separation agreement. However, the agreement clearly and unambiguously provided that only the party seeking to enforce any rights under the agreement shall be entitled to an attorney's fee, if successful. The defendant was not enforcing any rights under the agreement by simply defending against the plaintiff's motion. Had the parties intended the fees provision to be construed as the defendant contended, they were free to expressly so provide. The Court pointed out that where documentary evidence utterly refutes the proponent's factual allegations, conclusively establishing a defense as a matter of law, a motion to dismiss may be properly granted. Based upon the documentary evidence, consisting of the agreement, the plaintiff conclusively established, as a matter of law, that the defendant was not entitled to an award of an attorney's fee, regardless of the outcome of the current dispute. Accordingly, the Supreme Court erred in denying the plaintiff's motion to dismiss the defendant's counterclaim pursuant to CPLR 3211 (a)(1).

Stipulation Void as Against Public Policy, since it Expressly Required the Former Wife to Seek Dissolution of the Marriage and "Provided for the Procurement of Grounds of Divorce

In Charap v Willett, --- N.Y.S.2d ----, 2011 WL 1902605 (N.Y.A.D. 2 Dept.), the parties were divorced by judgment dated March 30, 2009. In a related appeal the Appellate Diviison affirmed the judgment of divorce insofar as appealed from. The former wife initially contested the divorce action commenced in 2003. After a nonjury trial, the Supreme Court determined that the former husband failed to prove his alleged grounds for divorce. The parties then entered into a custody agreement and the former wife filed an amended answer dated May 7, 2007, containing a counterclaim for a divorce on the ground of cruel and inhuman treatment. The former husband waived his reply and, while neither admitting nor denying the allegations, consented to the former wife obtaining a divorce on that ground. A nonjury trial was held on the financial issues, and a judgment of divorce was issued on March 30, 2009. By order to show cause dated July 29, 2009, the former wife moved, inter alia, to direct the former husband to comply with a theretofore confidential stipulation between the parties dated May 7, 2007, and to pay back maintenance and child support in the sum of $13,587.61, plus interest. The stipulation was subscribed by the parties and notarized, but, in accordance with its provisions, was kept confidential from the court during the trial on financial issues. In the stipulation, the former husband agreed, inter alia, to pay the former wife $65,000 over and above a future equitable distribution award, and to pay her counsel $10,000. In exchange, the former wife agreed to promptly prepare an amended answer and counterclaim for a divorce alleging cruel and inhuman treatment. As soon as the court placed the matter on its calendar, the parties would proceed to inquest whereby the grounds for a divorce would be finally and irrevocably determined. The Supreme Court denied the former wife's motion, finding the stipulation unenforceable and her claim of entitlement to back maintenance and child support without merit. The Appellate Divison affirmed. It held that the May 7, 2007, stipulation was void as against public policy, since it expressly required the former wife to seek dissolution of the marriage and "provides for the procurement of grounds of divorce" (General Obligations Law 5-311). As the offending provision represented the only consideration provided by the former wife for the agreement, which did not contain a severability provision, the stipulation was void in its entirety (cf. Taft v. Taft, 156 A.D.2d 444).

Supreme Court providently imputed $200,000 per year in income to the former wife, an attorney, for child support purposes.

In Charap v Willett, --- N.Y.S.2d ----, 2011 WL 1902606 (N.Y.A.D. 2 Dept.) the parties were married in 1982. There were two children of the marriage, born in 1990 and 1995, respectively. The former husband left the marital residence in December 2002 and commenced this action for a divorce on March 17, 2003. After a nonjury trial on grounds for divorce, the Supreme Court determined that the former husband failed to prove his alleged grounds for divorce. On May 7, 2007, the parties entered into a "Stipulation as to Custody, Decision-Making and Parental Access," and the former wife filed an amended answer containing a counterclaim for divorce on the ground of cruel and inhuman treatment. The former husband waived his reply and, while neither admitting or denying the allegations, consented to the former wife obtaining a divorce on that ground. After an inquest, the divorce was granted, but entry of the divorce judgment was held in abeyance pending the resolution of ancillary issues. The matter was transferred for trial on the remaining financial issues. After a nonjury trial, the Supreme Court, inter alia, distributed the marital estate and directed the former husband to pay the former wife durational maintenance in the sum of $5,000 per month for two years. The court also imputed income to the former wife for child support purposes, pro-rated the parties' obligations, and directed the former husband to pay the former wife $3,859.34 per month in child support, plus direct payments of the children's college expenses and other add-ons. The Appellate Divison affirmed. It held that Supreme Court properly rejected the former wife's request for lifetime maintenance. First, a purported agreement dated March 19, 2001, which provided, inter alia, that the former wife would not be required to work outside the family home during a divorce, was ambiguous as to duration and, in any event, was not enforceable (see Domestic Relations Law 236[B][3] ). Moreover, the former wife was an attorney who practiced law for almost 20 years and was capable of earning a significant salary. Given her skills, experience, and the children's mature ages, the Supreme Court appropriately limited maintenance to $5,000 per month for a period of two years. It also held that Supreme Court providently imputed $200,000 per year in income to the former wife for child support purposes. Child support is determined by the parents' ability to provide for their child rather than their current economic situation. In determining a party's child support obligation, the court 'need not rely upon the party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated earning potential. Courts are afforded considerable discretion in determining whether to impute income to a parent. Here, given the former wife's education, experience, and salary history, the imputed sum was supported by the record. Further, the court properly considered the statutory factors in capping the combined parental income at $300,000 for child support purposes, and there was no basis in this record for disturbing its determination. It held that Supreme Court providently awarded the former wife only 10% of the value of the former husband's law practice. The former wife made only indirect contributions to the former husband's career and was herself employed as an attorney for most of the marriage. The Supreme Court providently exercised its discretion in denying the former wife's application for counsel fees, as she received a large distributive award and had a substantial earning capacity.