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Friday, December 08, 2017

Recent Appellate Decisions of Interest - December 8, 2017

Court of Appeals

Dismissal of A Neglect Petition Divests Family Court of Jurisdiction to Issue Further Orders or Impose Additional Conditions on A Child's Release

In Matter of Jamie J., 2017 WL 5557887, 2017 NY Slip Op 08161 (2017) the Court of Appeals, in an opinion by Judge Wilson, held that Family Court lacks subject matter jurisdiction to conduct a permanency hearing pursuant to Family Court Act article 10-A once the underlying neglect petition brought under Article 10 has been dismissed for failure to prove neglect. The dismissal of a neglect petition terminates Family Court's jurisdiction.
Jamie J. was born in November 2014. A week later, at the request of the Wayne County Department of Social Services, Family Court directed her temporary removal from Michelle E.C.'s custody pursuant to an ex parte pre-petition order under FCA § 1022. Four days after that, the Department filed its FCA article 10 neglect petition. More than a year later, on the eve of the fact-finding hearing held to determine whether it could carry its burden to prove neglect, the Department moved to amend its petition to conform the pleadings with the proof. Family Court denied that eleventh-hour motion as unfairly prejudicial to Michelle E.C. and to the attorney for Jamie J. After hearing evidence, Family Court found that the Department failed to prove neglect, and therefore dismissed the petition. The Department did not appeal that decision. Family Court did not release Jamie J. into her mother's custody when it dismissed the article 10 neglect petition. Instead, at the Department's insistence and over Michelle E.C.'s objection, it held a second permanency hearing, which had been scheduled as a matter of course during the statutorily required first permanency hearing in the summer of 2015. Family Court and the Department contended that, even though the Department had failed to prove any legal basis to remove Jamie J. from her mother, article 10-A of the FCA gave Family Court continuing jurisdiction over Jamie J. and entitled it to continue her placement in foster care. Family Court held the second permanency hearing on January 19, 2016. There, Michelle E.C. argued, as she did here, that the dismissal of the neglect proceeding ended Family Court's subject matter jurisdiction and should have required her daughter's immediate return. Solely to expedite her appeal of that issue, Michelle E.C. consented to a second permanency hearing order denying her motion to dismiss the proceeding and continuing Jamie J.'s placement in foster care. The Appellate Division, with two Justices dissenting, affirmed.
      Judge Wilson observed that the appeal presented a straightforward question of statutory interpretation: does FCA article 10-A provide an independent grant of continuing jurisdiction that survives the dismissal of the underlying article 10 neglect petition? The Court rejected the Departments “hyperliteral reading of section 1088, divorced from all context,” to argue that Family Court's pre-petition placement of Jamie J. under section 1022 triggered a continuing grant of jurisdiction that survived the eventual dismissal of the neglect petition. In other words, even if the Family Court removes a child who has not been neglected or abused, it has jurisdiction to continue that child's placement in foster care until and unless it decides otherwise. The Court held that Section 1088's place in the overall statutory scheme, the legislative history of article 10-A, and the dictates of parents' and children's constitutional rights to remain together compelled the opposite conclusion. Family Court's jurisdiction terminates upon dismissal of the original neglect or abuse petition. Observing that the Court held in Matter of Tammie Z., "if abuse or neglect is not proved, the court must dismiss the petition . . . at which time the child is returned to the parents" (66 NY2d 1, 4-5 [1985]),  nothing in the legislative history of article 10-A suggested that its drafters intended to overturn the long-established rule, promulgated by pre-2005 decisions of the Court and of the Appellate Division, that the dismissal of a neglect petition divests Family Court of jurisdiction to issue further orders or impose additional conditions on a child's release. Instead, that history demonstrated that the drafters intended only to correct a technical issue that plagued article 10 and threatened the State's continued access to federal funding under Title IV of the Social Security Act. The order was reversed and the January 26, 2016 permanency order vacated.

Appellate Division, First Department

Appellate Division holds that under circumstances of case, court properly awarded prospective maintenance only. Credit properly denied for Payments towards mortgage and maintenance on marital residence. Such payments were made in satisfaction of defendant’s own contractual obligations and did not constitute voluntary payments contemplated under Domestic Relations Law § 236(B) (7) (a)

            In Aristova v. Derkach, 2017 WL 5575056 (1s Dept., 2017) on  December 27, 2004, the parties signed an agreement, effective as of August 1, 2004 (the Termination Agreement), pursuant to which they terminated a preexisting separation agreement but agreed, among other things, that property each had acquired before August 1, 2004 would be separate property.

            The Appellate Division held that the court correctly determined equitable distribution in accordance with the terms of the Termination Agreement, upon its finding after trial that defendant failed to prove that the Termination Agreement, which was written, signed, and properly acknowledged, was invalid. While he was not represented by counsel, defendant, an engineer with an MBA, was sufficiently sophisticated to be aware that he might need counsel, particularly given plaintiff’s forthright explanation that her purpose in entering into the agreement was to protect her rights to an apartment she had purchased before August 1, 2004, and the fact that she had given him a week to review the agreement before signing it. Moreover, plaintiff, although an attorney, was not a matrimonial lawyer, and needed the help of online forms in drafting the agreement.

            The Appellate Division held that under the circumstances of this case, the court properly awarded prospective maintenance only. During the first two years following commencement of the action, the parties lived together in the marital residence with their children. The trial evidence showed that, during that period, plaintiff voluntarily bore the majority of the family’s expenses, including costs associated with the parties’ cooperative apartment, and the family’s medical and dental insurance costs, as well as groceries and other family expenses. Defendant did not move for pendente lite relief until two months before the scheduled trial date.

            The Appellate Division rejected Defendant’s contention that he was entitled to a credit against the retroactive child support award because it was unsupported by a showing of any payments he made for child-related expenses. To the extent he relied on his payments towards the mortgage and maintenance on the marital residence, it found that these payments were made in satisfaction of defendant’s own contractual obligations and did not constitute the voluntary payments contemplated under Domestic Relations Law § 236(B) (7) (a) (see Krantz v. Krantz, 175 A.D.2d 865 [2d Dept 1991], accord Sergeon v. Sergeon, 216 A.D.2d 122 [1st Dept 1995]).

Appellate Division, Second Department

Family Court Act § 424–a(a) requires that parties to child support proceedings submit most recently filed income tax returns. Where petitioner mother failed without good cause to submit most recent tax returns Support Magistrate improvidently exercised discretion in failing to adjourn proceeding until mother filed required documents

In Matter of Feixia Wi-Fisher v Michael, --- N.Y.S.3d ----, 2017 WL 5473843 (2d Dept., 2017) the Appellate Division held that the Support Magistrate properly imputed income to the father based on his future earning capacity and the funds he received from his wife to pay his expenses, where he had access to his wife’s bank accounts which were used to pay the household’s expenses.

            The Appellate Division observed that Family Court Act § 424–a(a) requires that parties to child support proceedings submit certain required financial documents, including the party’s most recently filed state and federal income tax returns. When a petitioner fails without good cause to file the required documents, “the court may on its own motion or upon application of any party adjourn such proceeding until such time as the petitioner files with the court such statements and tax returns” (Family Ct Act § 424–a[c] ). Here, the mother failed without good cause to submit her most recent tax returns. Further, her testimony and the financial documents she did submit did not remedy her failure to make complete financial disclosure, since the mother’s financial disclosure affidavit contained inconsistencies, her claimed rental income was unsubstantiated, and her testimony regarding her income and expenses was determined to be incredible. Accordingly, the Support Magistrate improvidently exercised her discretion in failing to adjourn the proceeding until such time as the mother filed the required documents. It remitted the matter for a new determination of the father’s child support obligation following the mother’s submission of the required financial disclosure.

Error to awarded plaintiff portion of appreciation in value of defendant’s dental practice during marriage where she failed to establish the baseline value of the business and the extent of its appreciation

In Lestz v Lestz, 2017 WL 5473999 (2d Dept., 2017) the parties married in 1984. At that time, the defendant, who had been a dentist for at least five or six years, had his own dental practice at which the plaintiff was an employee. In 2007, the plaintiff commenced the divorce action. After a nonjury trial, the Supreme Court awarded the plaintiff a portion of the appreciation in value of the defendant’s dental practice during the marriage. The Appellate Division reversed. It observed that an increase in the value of separate property is considered separate property ‘except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse. (Domestic Relations Law § 236[B] [1] [d] [3]). The nontitled spouse has the burden of establishing that any increase in the value of the separate property was due at least in part to his or her direct or indirect contributions or efforts during the marriage. Here, the Supreme Court improperly awarded the plaintiff the sum of $91,500, representing, in effect, 25% of the appreciation in value during the marriage of the defendant’s dental practice, which was his separate property. Although the evidence at trial demonstrated that the plaintiff made limited contributions with respect to the practice, the plaintiff did not offer any proof of the value of the dental practice at the time of the marriage. Accordingly, she failed to satisfy her burden of establishing “the baseline value of the business and the extent of its appreciation” (Morrow v. Morrow, 19 A.D.3d at 254, 800 N.Y.S.2d 378 ), and the court erred in making an award to the plaintiff on this basis (see Ceravolo v. DeSantis, 125 A.D.3d 113, 117–118, 1 N.Y.S.3d 468; Clark v. Clark, 117 A.D.3d at 669, 985 N.Y.S.2d 276; Davidman v. Davidman, 97 A.D.3d 627, 628, 948 N.Y.S.2d 639; Albanese v. Albanese, 69 A.D.3d 1005, 1006, 892 N.Y.S.2d 631; Burgio v. Burgio, 278 A.D.2d 767, 769, 717 N.Y.S.2d 769). 

Appellate Division, Third Department\

Postsecondary education expenses are not subject to collection through income execution

In Dillon v Dillon, --- N.Y.S.3d ----, 2017 WL 5489353, 2017 N.Y. Slip Op. 08062 (3d Dept., 2017) the Appellate Division held, inter alia, that Family Court erred in directing that the mother’s  payments toward the child’s college education be made through the Support Collection Unit, as “postsecondary education expenses [are] a separate item in addition to the basic child support obligation” (Matter of Cohen v. Rosen, 207 A.D.2d 155, 157 [1995], lv denied 86 N.Y.2d 702 [1995]; see Cimons v. Cimons, 53 AD3d 125, 131 [2008]; Tryon v. Tryon, 37 AD3d 455, 457 [2007] ), not subject to collection through income execution (see generally CPLR 5241, 5242).

Appellate Division, Fourth Department

A Court Errs In Granting A QDRO More Expansive Than an Underlying Written Separation Agreement Regardless or Whether the Parties or Their Attorneys Approved the QDRO

            In Sanitllo v Santillo, --- N.Y.S.3d ----, 2017 WL 5505810, 2017 N.Y. Slip Op. 08155 (4th Dept., 2017) the parties divorced in 1994, and the separation agreement incorporated but not merged into their judgment of divorce provided that plaintiff was entitled to a share of defendant’s pension benefits “until her death or remarriage, or [defendant’s] death,” whichever occurred first. Although plaintiff remarried in August 1995, defendant’s attorney executed a qualified domestic relations order (QDRO) that was entered in February 1996. The QDRO did not provide that plaintiff’s entitlement to a share of defendant’s pension would terminate upon her remarriage. In April 2016, defendant filed his retirement documents with the New York State and Local Retirement System and discovered the existence of the QDRO. Shortly thereafter, he moved for, inter alia, an order vacating the QDRO inasmuch as it is inconsistent with the separation agreement. The Appellate Division agreed with defendant that the court erred in denying his motion to vacate the QDRO. A QDRO obtained pursuant to a separation agreement ‘can convey only those rights ... which the parties [agreed to] as a basis for the judgment’ “(Duhamel v. Duhamel [appeal No. 1], 4 AD3d 739, 741 [4th Dept 2004], quoting McCoy v. Feinman, 99 N.Y.2d 295, 304 [2002]). Thus, it is well established that a court errs in granting a QDRO more expansive than an underlying written separation agreement”, regardless whether the parties or their attorneys approved the QDRO without objecting to the inconsistency (see Page v. Page, 39 AD3d 1204, 1205 [4th Dept 2007]). Under such circumstances, the court has the authority to vacate or amend the QDRO as appropriate to reflect the provisions of the separation agreement (see Beiter v. Beiter, 67 AD3d 1415, 1417 [4th Dept 2009]). It found that the QDRO should never have been entered in the first instance because the clear and unambiguous language of the separation agreement provided that plaintiff’s rights in defendant’s pension benefits had terminated upon her remarriage.

            The Appellate Division rejected plaintiff’s contention that defendant was barred by laches from seeking to vacate the QDRO. “The defense of laches requires both delay in bringing an action and a showing of prejudice to the adverse party” (Beiter, 67 AD3d at 1416]; see Matter of Sierra Club v. Village of Painted Post, 134 AD3d 1475, 1476 [4th Dept 2015]). Even assuming, arguendo, that there was a delay in seeking to vacate the QDRO, it concluded that plaintiff did not demonstrate that she was prejudiced by that delay.

Monday, November 20, 2017

Recent Appellate Decisions of Interest - November 20, 2017

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

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

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

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

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

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

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

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

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

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

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

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

Monday, October 23, 2017

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

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

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

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

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

Friday, October 06, 2017

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

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

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

Judgment of Divorce Must Contain Provision Addressing Equitable Distribution

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

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] ).