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Monday, October 16, 2017

New York Matrimonial Trial Handbook, by Joel R. Brandes

      The New York Matrimonial Trial Handbook, by Joel R. Brandes will soon be in  bookstores and available on line.   Click on the title for more information about the contents of the book.  Click on this link for the complete table of contents.  

         The New York Matrimonial Trial Handbook, by Joel R. Brandes
, was written for both the attorney who has never tried a matrimonial action and for the experienced litigator. It is a “how to” book for lawyers. This 840 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 aide 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.
              If you would like to be notified when The New York Matrimonial Trial Handbook is on sale send an email to with the words “notify me” in the subject line and your email address. For more information about the contents of the Trial Handbook click on this link.

Friday, October 06, 2017

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

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

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

Judgment of Divorce Must Contain Provision Addressing Equitable Distribution

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

Friday, September 15, 2017

Religious Upbringing Clause in Custody Agreement Cannot Be Enforced Extent it is not in Best Interests of Children or Violates Parent’s Legitimate Due Process Right to Express Oneself and Live Freely.

           In Weisberger v Weisberger, --- N.Y.S.3d ----, 2017 WL 3496090, 2017 N.Y. Slip Op. 06212  (2d Dept., 2017) in their stipulation of settlement dated November 3, 2008, which was incorporated but not merged into their 2009 judgment of divorce, the parties agreed to joint legal custody of the children with the mother having primary residential custody and the father having specified visitation. The stipulation contained the following religious upbringing clause: “Parties agree to give the children a Hasidic upbringing in all details, in home or outside of home, compatible with that of their families’. Father shall decide which school the children attend. Mother to insure that the children arrive in school in a timely manner and have all their needs provided.”The stipulation of settlement further provided that each party “shall be free from interference, authority and control, direct or indirect, by the other.” 

In November  2012, at which time the children were nine, seven, and five years old, respectively, the father moved to modify the stipulation of settlement so as to, inter alia,  award him sole legal and residential custody of the children; award the mother only supervised therapeutic visitation; and  to enforce the religious upbringing clause so as to require the mother to direct the children to practice full religious observance in accordance with the Jewish Hasidic practices of ultra Orthodoxy at all times and require her to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy during any period in which she has physical custody of the children and at any appearance at the children’s schools. In support of the motion, the father alleged that the mother had radically changed her lifestyle in a way that conflicted with the parties’ religious upbringing clause. The father alleged that since the parties had entered into the stipulation of settlement the mother had, among other things, come out publicly as a lesbian, disparaged the basic tenets of Hasidic Judaism in front of the children, allowed the children to wear non-Hasidic clothes, permitted them to violate the Sabbath and kosher dietary laws, and referred to them by names that were not traditionally used in the Hasidic community. The father further alleged that the mother had dressed immodestly, dyed her hair, and permitted a transgender man to reside in her home with the children.

Supreme Court determined that there had been a change of circumstances caused by the mother’s transition from an ultra Orthodox Hasidic lifestyle to a “more progressive, albeit Jewish, secular world.” The court noted that the mother’s conduct was in conflict with the parties’ agreement, which “forbade living a secular way of life in front of the children or while at their schools.” The court posited that had there been no agreement it might have considered the parties’ arguments differently; however, “given the existence of the Agreement’s very clear directives, [the] Court was obligated to consider the religious upbringing of the children as a paramount factor in any custody determination”. Supreme Court awarded him sole legal and residential custody of the children, as well as final decision-making authority over medical and dental issues, and issues of mental health, with supervised therapeutic visitation to the mother. The court stayed the provision of the order limiting the mother’s visitation to supervised therapeutic visits, conditioned upon, inter alia, her compliance with the religious upbringing clause. Supreme Court enforced the religious upbringing clause so as to require the mother to direct the children to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy at all times. The court ordered that during any period of visitation or during any appearance at the childrens’ schools “the [mother] must practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy.”

The Appellate Division modified the order. It observed that to the extent the mother’s sexual orientation was raised at the hearing, courts must remain neutral toward such matters, such that the focus remains on the continued best interests and welfare of the children. The Appellate Division found that a change of circumstances had occurred, such that a modification of the stipulation of settlement was necessary However, Supreme Court’s determination to modify the stipulation of settlement so as to, inter alia,  award the father sole legal and residential custody of the children, lacked a sound and substantial basis in the record  In pertinent part, the court gave undue weight to the parties’ religious upbringing clause, finding it to be a “paramount factor” in its custody determination. It held that when presented as an issue, religion may be considered as one of the factors in determining the best interest of a child, although it alone may not be the determinative factor. Clauses in custody agreements that provide for a specific religious upbringing for the children will only be enforced so long as the agreement is in the best interests of the children. It found that the mother had been the children’s primary caretaker since birth, and their emotional and intellectual development was closely tied to their relationship with her. The mother took care of the children’s physical and emotional needs both during and after the marriage, while the father consistently failed to fully exercise his visitation rights or fulfill his most basic financial obligations to the children after the parties’ separation. Aside from objecting to her decision to expose the children to views to which he personally objected, the father expressed no doubts whatsoever about the mother’s ability to care and provide for the children. The weight of the evidence established that awarding the father full legal and residential custody of the children with limited visitation to the mother would be harmful to the children’s relationship with her.

Furthermore, the Supreme Court improperly directed that enforcement of the parties’ stipulation of settlement which required the mother to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy during any period in which she has physical custody of the children and at any appearance at the children’s schools. The plain language of the parties’ agreement was “to give the children a Hasidic upbringing”. The parties’ agreement did not require the mother to practice any type of religion, to dress in any particular way, or to hide her views or identity from the children. Nor may the courts compel any person to adopt any particular religious lifestyle. At a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise” (Lee v. Weisman, 505 U.S. at 587). Thus, it held that  a religious upbringing clause should not, and cannot, be enforced to the extent that it violates a parent’s legitimate due process right to express oneself and live freely (see Lawrence v. Texas, 539 U.S. 558, 574. The parties themselves agreed in the stipulation of settlement that they “shall [each] be free from interference, authority and control, direct or indirect, by the other” (emphasis added). The weight of the evidence did not support the conclusion that it was in the children’s best interests to have their mother categorically conceal the true nature of her feelings and beliefs from them at all times and in all respects, or to otherwise force her to adhere to practices and beliefs that she no longer shares. There was no indication or allegation that the mother’s feelings and beliefs were  not sincerely held, or that they were adopted for the purpose of subverting the religious upbringing clause, and there had been no showing that they are inherently harmful to the children’s well-being.

The evidence at the hearing established that the children  spent their entire lives in the Hasidic community, they attend Hasidic schools, and their extended families are Hasidic. The weight of the evidence demonstrated that it was in the children’s best interests to continue to permit the father to exercise final decision-making authority over the children’s education and to continue to permit him to require the children to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy while they are in his custody, or in the custody of a school that requires adherence to such practices. It directed the mother to make all reasonable efforts to ensure that the children’s appearance and conduct comply with the Hasidic religious requirements of the father and of the children’s schools while the children are in the physical custody of their father or their respective schools.

Tuesday, August 29, 2017

Chief Administrative Judge Adopts New Rules for Matrimonial Actions

By Administrative Order A/O/100/17, 22 NYCRR §202.50 (b) was amended to add a new section 202.50 (b)(3).

The new section requires that every Uncontested and Contested Judgment of Divorce contain certain decretal paragraphs, including one concerning the venue where post judgment applications for modification or enforcement in Supreme Court should be brought. 22 NYCRR §202.50 (b)(3), which  is effective August 1, 2017, provides as follows:

202.50. Proposed Judgments in Matrimonial Actions; Forms
* * *
(b) Approved Forms.
* * *
(3) Additional Requirement with Respect to Uncontested and Contested
Judgments of Divorce. In addition to satisfying the requirements of
paragraphs (1) and (2) of this subdivision, every judgment of divorce,
whether uncontested or contested, shall include language substantially in
accordance with the following decretal paragraphs which shall supersede
any inconsistent decretal paragraphs currently required for such forms:

ORDERED AND ADJUDGED that the Settlement Agreement entered into
between the parties on the ___ day of ____, [ ] an original OR [ ] a
transcript of which is on file with this Court and incorporated herein by
reference, shall survive and shall not be merged into this judgment, * and
the parties are hereby directed to comply with all legally enforceable terms
and conditions of said agreement as if such terms and conditions were set
forth in their entirety herein; and it is further

* In contested actions, this paragraph may read either [shall survive and
shall not be merged into this judgment] or [shall not survive and shall be
merged into this judgment].

ORDERED AND ADJUDGED, that the Supreme Court shall retain
jurisdiction to hear any applications to enforce the provisions of said
Settlement Agreement or to enforce or modify the provisions of this
judgment, provided the court retains jurisdiction of the matter concurrently
with the Family Court for the purpose of specifically enforcing, such of the
provisions of that (separation agreement) (stipulation agreement) as are
capable of specific enforcement, to the extent permitted by law, and of
modifying such judgment with respect to maintenance, support, custody or
visitation to the extent permitted by law, or both; and it is further

ORDERED AND ADJUDGED, that any applications brought in Supreme
Court to enforce the provisions of said Settlement Agreement or to enforce
or modify the provisions of this judgment shall be brought in a County
wherein one of the parties resides; provided that if there are minor children
of the marriage, such applications shall be brought in a county wherein one
of the parties or the child or children reside, except. in the discretion of the
judge, for good cause. Good cause applications shall be made by motion or
order to show cause. Where the address of either party and any child or
children is unknown and not a matter of public record, or is subject to an
existing confidentiality order pursuant to DRL § 254 or FCA § 154-b, such
applications may be brought in the county where the judgment was entered;
and it is further

By Administrative Order A/O/99/17, 22 NYCRR §202 was amended to  add a new section 202.16-b.
The new section addresses the submission of written applications in contested matrimonial actions. 

The new rules contain limitations which are applicable to to the submission of papers on pendente lite applications for alimony, maintenance, counsel fees, child support, exclusive occupancy, custody and visitation unless the requirements are waived by the judge for good cause shown. Among other things, all orders to show cause and motions must be in Times New Roman, font 12 and double spaced. The supporting affidavit or affidavit in opposition or attorney affirmation in support or opposition or memorandum of law may not exceed twenty (20) pages. Any expert affidavit may not exceed eight (8) additional pages. Reply affidavits or affirmations may not exceed ten (10) pages. Surreply affidavits can only be submitted with prior court permission. 22 NYCRR 202.16 - b, which  is effective July  1, 2017, provides as follows:

§202.16-b Submission of Written Applications in Contested Matrimonial

(1) Applicability. This section shall be applicable to all contested
matrimonial actions and proceedings in Supreme Court authorized by
subdivision (2) of Part B of section 236 of the Domestic Relations Law.

(2) Unless otherwise expressly provided by any provision of the CPLR or
other statute, and in addition to the requirements of 22 NYCRR §202.16 (k)
where applicable, the following rules and limitations are required for the
submission of papers on pendente lite applications for alimony,
maintenance, counsel fees, child support, exclusive occupancy, custody and
visitation unless said requirements are waived by the judge for good cause

(i) Applications that are deemed an emergency must comply with 22
NYCRR §202.7 and provide for notice, where applicable, in accordance with
same. These emergency applications shall receive a preference by the clerk
for processing and the court for signature. Designating an application as an
emergency without good cause may be punishable by the issuance of
sanctions pursuant to Part 130 of the Rules of the Chief Administrative
Judge. Any application designated as an emergency without good cause
shall be processed and considered in the ordinary course of local court

(ii) Where practicable. all orders to show cause, motions or crossmotions
for relief should be made in one order to show cause or motion or

(iii) All orders to show cause and motions or cross motions shall be
submitted on one-sided copy except as otherwise provided in 22 NYCRR
§202.5(at or electronically where authorized, with one-inch margins on
eight and one half by eleven (8.5 x 11) inch paper with all additional
exhibits tabbed. They shall be in Times New Roman font 12 and double
spaced. They must be of sufficient quality ink to allow for the reading and
proper scanning of the documents. Self-represented litigants may submit
handwritten applications provided that the handwriting is legible and
otherwise in conformity with these rules.

(iv) The supporting affidavit or affidavit in opposition or attorney
affirmation in support or opposition or memorandum of law shall not exceed
twenty (20) pages. Any expert affidavit required shall not exceed eight (8)
additional pages. Any attorney affirmation in support or opposition or
memorandum of law shall contain only discussion and argument on issues
of law except for facts known only to the attorney. Any reply affidavits or
affirmations to the extent permitted shall not exceed ten (10) pages. Surreply
affidavits can only be submitted with prior court permission.

(v) Except for affidavits of net worth (pursuant to 22 NYCRR §202.16
(b)), retainer agreements (pursuant to Rule 1400.3 of the Joint Rules of the
Appellate Division). maintenance guidelines worksheets and/or child
support worksheets, or counsel fee billing statements or affirmations or
affidavits related to counsel fees (pursuant to Domestic Relations Law §237
and 22 NYCRR §202.16(k))' all of which may include attachments thereto,
all exhibits annexed to any motion, cross motion, order to show cause,
opposition or reply may not be greater than three (3) inches thick without
prior permission of the court. All exhibits must contain exhibit tabs.

(vi) If the application or responsive papers exceed the page or size
limitation provided in this section, counsel or the self-represented litigant
must certify in good faith the need to exceed such limitation, and the court
may reject or require revision of the application if the court deems the
reasons insufficient.

(3) Nothing contained herein shall prevent a judge or justice of the court or
of a judicial district within which the court sits from establishing local part
rules to the contrary or in addition to these rules.

By Administrative Order A/O 102/17, the Uncontested Divorce Packet Forms were modified to reflect the increases as of March 1, 2017 in the Self Support Reserve to $16,281 and in the Poverty Level Income for a single person to $12,060.


Parties May Chart Their Own Litigation Course by Agreement Which Courts Are Bound to Enforce. Waiver of Physician-patient Privilege in Contesting Custody Requires Showing That Resolution of Custody Issue Requires Revelation of Protected Material

        In Bruzzese v Bruzzese, --- N.Y.S.3d ----, 2017 WL 2961475, 2017 N.Y. Slip Op. 05579 (2d Dept., 2017) the plaintiff commenced an action for a divorce, and the defendant counterclaimed for a divorce. Prior to trial, the parties stipulated to a divorce on the ground of an irretrievable breakdown of the marital relationship pursuant to Domestic Relations Law § 170(7). After a nonjury trial, the Supreme Court, inter alia, awarded the defendant a divorce on the ground of cruel and inhuman treatment. The Appellate Division held that  Supreme Court erred in awarding the defendant a divorce on the ground of cruel and inhuman treatment. "Parties by their stipulations may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce" (Matter of New York, Lackawanna & W. R.R. Co., 98 N.Y. 447, 453). There was no showing of cause sufficient to invalidate the parties' stipulation to a divorce on the ground of an irretrievable breakdown of the marital relationship. Accordingly, the court should have awarded the defendant a divorce on this ground.

        The Appellate Division found, inter alia, that the Supreme Court, relying on the physician-patient privilege, improperly precluded testimony of two witnesses who were doctors, regarding the defendant's mental health. It noted that in a matrimonial action, a party waives the physician-patient privilege concerning his or her mental or physical condition by actively contesting custody. However, there "first must be a showing beyond mere conclusory statements that resolution of the custody issue requires revelation of the protected material" (McDonald v. McDonald, 196 A.D.2d 7, 13; see Baecher v. Baecher, 58 A.D.2d 821). Since the defendant actively contested custody, and the plaintiff made the requisite showing that resolution of the custody issue required revelation of the protected material, the court should not have precluded the testimony of the doctors regarding the defendant's mental health.

Authors note: In McDonald v. McDonald, 196 A.D.2d 7, 13 (2d Dept.,1994) the Second Department adopted the requirement of Perry v Fiumano, 61 AD2d 512, 519 that before the court may find that there has been a waiver of the physician-patient privilege "[t]here first must be a showing beyond 'mere conclusory statements' that resolution of the custody issue requires revelation of the protected material" (Perry v Fiumano, 61 AD2d 512, 519).

Where Stipulation Fails to Identify Who Submits QDRO it Is Generally the Responsibility of the Party Seeking Approval of QDRO

               In Scheriff v Scheriff, --- N.Y.S.3d ----, 2017 WL 3044528, 2017 N.Y. Slip Op. 05760 (2d Dept., 2017) the parties stipulation provided that the defendant was entitled to 50% of the marital portion of the plaintiff’s pension and  that the parties were to cooperate with each other in obtaining a Qualified Domestic Relations Order (QDRO) to divide the pension, that they would equally share the cost of preparing the QDRO, and that the defendant’s share would be determined pursuant to the formula set forth in Majauskas v. Majauskas (61 N.Y.2d 481). The defendant moved, inter alia, “for a set-off against plaintiff’s entitlement to his equity share of the former marital home in an amount equal to all monies owed for QDRO arrears. Supreme Court denied the motion and directed the defendant to prepare and submit “an appropriate Domestic Relations Order.” The Appellate Division affirmed. It observed that under the defendant was entitled to her equitable share of the plaintiff’s pension and that payment of her share was to be effectuated through the submission of a QDRO. Although the stipulation failed to identify the party who would be responsible for submitting the QDRO, “it is generally the responsibility of the party seeking approval of the QDRO to submit it to the court with notice of settlement” (Kraus v. Kraus, 131 AD3d at 101). Thus, the defendant should have prepared and submitted a proposed QDRO to the Supreme Court with a copy to the defendant’s employer. In the absence of a QDRO, there were no “QDRO arrears.”

Child in a Custody Matter Does Not Have “Full-party” Status and Cannot Appeal from Denial of Mothers Modification Petition Where She Does Not Appeal.

          In Matter of Lawrence v Lawrence, --- N.Y.S.3d ----, 2017 WL 2604311 (Mem), 2017 N.Y. Slip Op. 05023 (4th Dept., 2017) the Appellate Division dismissed the appeal taken by the Attorney for the Child representing the parties’ oldest child from an order dismissing the mother’s petition seeking modification of a custody order. Inasmuch as the mother had not taken an appeal from that order, the child, while dissatisfied with the order, cannot force the mother to litigate a petition that she has since abandoned. It held that a child in a custody matter does not have “full-party status” (Matter of McDermott v. Bale, 94 AD3d 1542, 1543), and it  declined to permit the child’s desires to chart the course of litigation.

Testimonial Evidence is not sufficient to overcome marital property presumption

               In Schacter v Schacter, --- N.Y.S.3d ----, 2017 WL 2366242, 2017 N.Y. Slip Op. 04372 (1st Dept., 2017) the Appellate Division held that Plaintiff’s brief testimony that a piano was gifted to him during the marriage did not suffice to overcome the marital property presumption; thus, the court properly deemed the piano marital property to be sold and the net proceeds divided equally between the parties (see DRL § 236[B][1][c]; Bernard v. Bernard, 126 AD3d 658, 659 [2d Dept 2015])

Attorney for the Child Violated Ethical Duty When He Advocated for Result That Was Contrary to Child’s Expressed Wishes

In Matter of Kleinbach v Cullerton, --- N.Y.S.3d ----, 2017 WL 2491351, 2017 N.Y. Slip Op. 04641 (4th Dept., 2017) the Appellate Division, inter alia, agreed with the father that the initial Attorney for the Child (AFC) violated his ethical duty to determine the subject child’s position and advocate zealously in support of the child’s wishes, because that AFC advocated for a result that was contrary to the child’s expressed wishes in the absence of any justification for doing so. It held that there are only two circumstances in which an AFC is authorized to substitute his or her own judgment for that of the child: ‘[w]hen the [AFC] is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child. (Matter of Swinson v. Dobson, 101 AD3d 1686, 1687 quoting 22 NYCRR 7.2[d][3] ), neither of which was present here. In addition, although an AFC should not have a particular position or decision in mind at the outset of the case before the gathering of evidence”(Matter of Carballeira v. Shumway, 273 A.D.2d 753, 756; see Matter of Brown v. Simon, 123 AD3d 1120, 1123), the initial AFC indicated during his first court appearance, before he spoke with the child or gathered evidence regarding the petitions, that he would be substituting his judgment for that of the child.

First Department Affirms Award of Costs of Higher Education, Including College, for 7 Year Old Child Because it Appeared to Be an Inevitable Expense for this Child

In Klauer v Abeliovich,  --- N.Y.S.3d ----, 2017 WL 1450277, 2017 N.Y. Slip Op. 03110 (1st Dept., 2017) the parties were married in December 2008 and there was one child of the marriage, born in 2010.

The Appellate Division held that Supreme Court correctly rejected the Referee’s recommendation as to basic child support when it determined that in setting the basic child support obligation the parties’ combined income above the $141,000 statutory cap should be taken into consideration (Domestic Relations Law § 240[1–b][f] ). In deciding to utilize the parties’ combined income up to $800,000 in setting support, the court examined whether the capped support “adequately reflects a support level that meets the needs and continuation of the child[’s] lifestyle” and concluded that it did not (Beroza v. Hendler, 109 AD3d 498, 500–501 [2d Dept 2013] ).

The Appellate Division  held that Supreme Court, under the circumstances, providently exercised its discretion in ordering that the husband pay 20% of the child’s educational expenses, including college, until the child attains age 21 (see Cimons v. Cimons, 53 AD3d 125, 131 [2d Dept 2008] ). The court took into consideration several factors, including the high educational achievements of both parties and their professions. Plaintiff, a financial analyst, has a B.A. from Georgetown and an MBA from Columbia Business School; she also holds series 3 and 7 licenses. Defendant, an associate professor of medicine at Columbia University Medical School, has a B.A. from Massachusetts Institute of Technology and a M.D./Ph.D. from Harvard. During the marriage the parties agreed the child would be privately educated and their enrollment of the child in a private nursery school when he was only nine months old reflects their agreement. There was no indication that defendant could not afford to pay his share of private school tuition, and his argument that the child was too young for the court to have addressed higher education issues does not warrant modification of Supreme Court’s order. There was no reason to delay resolution of the issue of higher education, including college, because it appeared to be an inevitable expense for this child, given the parties’ apparent commitment to an enriched education, the parties’ means and their high level of educational achievements. It affirmed the award because it was not an improvident exercise of the court’s discretion.

The Appellate Division held that absent an agreement to the contrary, or without engaging in a proper analysis under the paragraph “(f)” factors of the Domestic Relations Law, the court should not have ordered defendant to pay for summer and/or extracurricular activities (Domestic Relations Law § 240[1–b][f]; Michael J.D., 138 AD3d at 154). Unlike health care and child care expenses, these “add-on” expenses are not separately enumerated under the CSSA and it is usually anticipated that they will be paid from the basic child support award ordered by the court. Furthermore, without explaining why, Supreme Court allocated these add-ons in the same manner it allocated educational expenses (i.e. 20% to defendant as opposed to 10.5%). Because the court made its determination before the Court’s decision in Michael J.D., where it  clarified how these add-ons should be analyzed and separately justified under paragraph (f), it  remitted to Supreme Court the issue of how summer and/or any other extracurricular activities not specifically agreed to by the parties will be allocated between them, if at all.

The Appellate Division modified to eliminate the award of the separate property credit to plaintiff in the amount of $350,000 and otherwise affirm Supreme Court’s denial of any further separate property credit to plaintiff in the amount of $932,000 for payments toward the principal and/or renovation costs of their Fifth Avenue coop. It held that Plaintiff was not entitled to a separate property credit for the $350,000 downpayment or the additional sum of $932,000 the parties applied towards the purchase price of the Fifth Avenue coop. The conveyance of separate funds under these circumstances resulted in the separate assets becoming presumptively marital and partial use of separate funds to acquire a marital asset does not mandate that plaintiff be credited for any separate funds she committed (see Fields, 15 NY3d at 167).

The Appellate Division held that the court  correctly determined that plaintiff’s bonus, although paid after the action was commenced, was compensation for her past performance, not tied to future performance (see DeJesus v. DeJesus, 90 N.Y.2d 643, 652 [1997] ). As a general rule, bonuses paid as compensation for past services are marital property and subject to equitable distribution (see Ropiecki v. Ropiecki, 94 AD3d 734, 736 [2d Dept 2012] ). The court properly prorated the bonus to reflect that although it was paid for the 2011 calendar year, the parties separated in May 2011, meaning only 40% of the total amount could be considered marital.

 The Appellate Division held that while it was a provident exercise of the court’s discretion to permit plaintiff to make payments to defendant of his distributive share of the marital assets in installments, post-decision interest is mandatory on the distributive award pursuant to CPLR 5002, and should be awarded (see Moyal v. Moyal, 85 AD3d 614, 615 [1st Dept 2011] ).

Monday, April 24, 2017

First Department Holds That Invoices Standing Alone May Not Be Regarded as Evidence of Title or Ownership of Property.

  In Anonymous v. Anonymous,--- N.Y.S.3d ----, 2017 WL 1234201, 2017 N.Y. Slip Op. 02613 (1st Dept., 2017)  the parties prenuptial agreement did not specifically address how the parties should divide their art collection upon dissolution of the marriage. It provided that any property owned on the date of execution of the prenuptial agreement, April 21, 1992, or "hereafter…acquired" by one party remains that party's separate property. It provided that "[n]o contribution of either party to the care, maintenance, improvement, custody or repair of… [the other's party]…shall in any way alter or convert any of such property…to marital property. The prenuptial agreement further provided that "any property acquired after the date of the marriage that is jointly held in the names of both parties" shall, upon dissolution of the marriage — which occurred on March 25, 2014 — be divided equally between the parties. Under the heading, Non-Marital Property, the agreement provided: "No property hereafter acquired by the parties or by either of them…shall constitute marital property…unless (a) pursuant to a subscribed and acknowledged written agreement, the parties expressly designate said property as marital property…or (b) title to said property is jointly held in the names of both parties." During the marriage, the parties agreed to acquire certain art as a joint collection, including pieces acquired through Art Advisory Services, Luhring Augustine, and The Kitchen. The husband moved, inter alia, for a declaratory judgment that, "consistent with the Prenuptial Agreement, the title to the art purchased during the marriage determines whether it is marital or separate property, regardless of the source of funds used to acquire it or the alleged intent behind the purchase." He argued that title should be determined based solely on the invoice or bill of sale. The motion court relied on the invoices as proof of whether the art was jointly or individually held in granting his motion. 
          The Appellate Division held to the contrary, that invoices, standing alone, may not be regarded as evidence of title or ownership of the art. An invoice is defined as "[a] list of goods sent or services provided, with a statement of the sum due for these" (Oxford Living Dictionaries []). "An invoice…is not a bill of sale, nor is it evidence of a sale. It is a mere detailed statement of the nature, quantity, or cost of the goods, or price of the things invoiced, and it is as appropriate to a bailment as a sale. Hence, standing alone, it is never regarded as “evidence of title" (Sturm v. Boker, 150 US 312, 328 [1893].  An invoice cannot be said to be dispositive of ownership. The purpose of the invoice is not to identify the titled owner. The unreliability of an invoice as sole proof of title was evidenced by various invoices in the record. The Appellate Division concluded that title to personalty cannot be determined by relying solely upon an invoice. In determining title to the artwork in question, all the facts and circumstances of the acquisition and indicia of ownership must also be considered. Accordingly, the order was reversed, on the law, the declaration vacated, and the matter remanded for further proceedings, including discovery and an evidentiary hearing to determine the ownership of the disputed art.

Third Department Holds That Failure to Effectuate Proper Service of a Motion Deprives the Court of Jurisdiction to Entertain the Motion

In Matter of Gariel v Morse, --- N.Y.S.3d ----, 2016 WL 7469484 (Mem), 2016 N.Y. Slip Op. 08921 (3d Dept., 2016) the Appellate Division held that the father’s letter to the court  had to be treated as a motion for voluntary discontinuance pursuant to CPLR 3217(b) (see Family Ct Act § 165[a]) and, as such, it had to  comply with the applicable service requirements. Inasmuch as the father’s failure to effectuate proper service  “deprive[d] the court of jurisdiction to entertain the motion”(Lee v. I–Sheng Li, 129 AD3d 923, 923 [2015]; see Matter of Lydia DD., 94 AD3d at 1386; Bianco v. LiGreci, 298 A.D.2d 482, 482 [2002]; Adames v. New York City Tr. Auth., 126 A.D.2d 462, 462 [1987]; Burstin v. Public Serv. Mut. Ins. Co., 98 A.D.2d 928, 929 [1983] ), it found that  Family Court erred in dismissing the petition.

Second Department Holds That Party Seeking Counsel Fees must Demonstrate, Prima Facie, Attorney Substantially Complied with 22 NYCRR 1400.2 and 1400.3

 In Piza v Baez-Piza, --- N.Y.S.3d ----, 2016 WL 7224738, 2016 N.Y. Slip Op. 08384 (2d Dept.,2016) following a trial, the defendant sought additional attorney’s fees, and, the Supreme Court, inter alia, awarded the defendant the sum of $7,500 in attorney’s fees for legal services provided following the earlier award of $3,500 in attorney’s fees. The Appellate Division held that Supreme Court erred in awarding the defendant total attorney’s fees in excess of the $7,500 retainer that she paid to her attorney, as she did not demonstrate, prima facie, that her attorney substantially complied with 22 NYCRR 1400.2 and 1400.3 (see Vitale v. Vitale, 112 AD3d 614, 615). It modified the judgment to provide that the additional award of attorney’s fees for legal services provided following the prior award of $3,500 be limited to the sum of $4,000 (see Mulcahy v. Mulcahy, 285 A.D.2d 587, 588–589).

Appellate Division Considers Factor [6] “the existence and duration of a pre-marital joint household in awarding Maintenance

 In Kaprov v Stalinsky, --- N.Y.S.3d ----, 2016 WL 7380951, 2016 N.Y. Slip Op. 08509 (2d Dept., 2016) the husband argued, inter alia,  that as the Supreme Court had already ordered him to pay, pursuant to a pendente lite order, $3,000 per month in temporary maintenance retroactive to November 12, 2010, the date on which the wife filed her complaint seeking a divorce, the Court, in awarding maintenance for seven years from the date of judgment this effectively granted the wife an 11–year maintenance award, which is excessive in duration given that the marriage lasted only 12 years and the parties had no children together. The Appellate Division rejected this argument observing that a  party’s maintenance obligation is retroactive to the date the application for maintenance was first made (see Domestic Relations Law § 236[B][6][a] ). However, the party is also entitled to a credit for any amount of temporary maintenance ... already paid” (Huffman v. Huffman, 84 AD3d 875, 876). In arguing that the maintenance award was out of proportion to the duration of the marriage, the husband failed to recognize that, pursuant to the version of Domestic Relations Law § 236(B)(6)(a) in effect at the time of the commencement of this action, one of the factors a court should take into account in deciding the amount and duration of a maintenance award is “the existence and duration of a pre-marital joint household” (Domestic Relations Law § 236[B][6][a][6] ). The wife testified that the couple lived together from 1984 to 2010, approximately 26 years. Thus, an 11–year award of maintenance was not out of proportion with the duration of the joint household. The maintenance award was appropriate for the wife to become self-supporting given the factors involved, including the duration of the pre-marital joint household, as well as the wife’s age, absence from the workforce, reduced earning capacity, and limited education (see Domestic Relations Law § 236[B][6][a] ).

2017 Child Support Standards Chart Released

The 2017 combined parental income amount (“statutory cap”) is $143,000. The 2017 self-support reserve is $16,281 and the poverty income guidelines amount for a single person is $12,060.
The child support standards chart, released March 17, 2017 is available at

Since January 31, 2016 the income cap of the maintenance payor for temporary and final (post-divorce) maintenance increased from $175,000 to $178,000 per year. By Administrative Order A/O 12/16, Revised Instructions and Forms for Use in Matrimonial Actions in Supreme Court were adopted effective January 31, 2016. The revised forms reflect the increase in the annual income cap of the maintenance payor for temporary and final (post-divorce) maintenance from $175,000 to $178,000 per year based on CPI increases as required by the 2015 Maintenance Guidelines Law (L. 2015, ch. 269), and clarify instructions regarding use of the UD-Packet forms. See (last accessed April 1, 2017)