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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] ).