Husband Deemed Legal Parent Even though AID Consent Not in Writing

Husband Deemed Legal Parent of Child Born to Wife Conceived as Result of AID Where Consent Not Obtained in Writing


In Laura WW v Peter WW, --- N.Y.S.2d ----, 2008 WL 991130 (N.Y.A.D. 3 Dept.) the Third Department held that a husband can be deemed the legal parent of a child born to his wife, where the child was conceived as a result of artificial insemination by donor during the marriage, but where the husband's consent to the AID was not obtained in writing. Plaintiff wife became pregnant again, as a result of AID, with a third child. A few months into the wife's pregnancy, the parties separated pursuant to an agreement which provided, among other things, that the husband would not be financially responsible for the child. In her subsequent complaint for divorce, the wife alleged that the child was born to the marriage. The parties then entered a settlement agreement which reaffirmed the terms of the separation agreement and calculated the husband's support obligation based on two children. Thereafter, Supreme Court found that the provision in the separation agreement absolving the husband of his support obligation for the child was void as against public policy. Following a hearing on the issue of paternity, Supreme Court held that the husband was the child's legal father and modified the parties' stipulation by increasing the husband's child support obligation based upon three children, instead of two. The Appellate Division affirmed. It agreed with Supreme Court that the provision of the settlement agreement absolving the husband of any support obligation with respect to the child was unenforceable. The parties' agreement, which preceded any determination of legal paternity, to leave the child without the husband's support could not stand (Matter of Gravlin v. Ruppert, 98 N.Y.2d 1, 5 [2002]; see Harriman v. Harriman, 227 A.D.2d 839, 841 [1996] ). The Court rejected the husband's attempt to invoke noncompliance with Domestic Relations Law 73 as a bar to a finding that he was, legally, the child's father. Consistent with our state's strong presumption of legitimacy, as well as the compelling public policy of protecting children conceived via AID, the Court followed the lead of other jurisdictions that impose a rebuttable presumption of consent by the husband of a woman who conceives by AID, shifting the burden to the husband to rebut the presumption by clear and convincing evidence. It was not disputed that the husband was fully aware that his wife was utilizing AID to get pregnant. He proffered no evidence that he took any steps before the AID was performed to demonstrate that he was not willing to be the child's father. Under these circumstances, the court found that that the husband failed to rebut the presumption that he consented to bringing a third child into the marriage through AID. The evidence supported Supreme Court's conclusion that the husband consented to his wife's decision to create the child and that he was the child's legal father. Pursuing an alternative avenue, the Court reached the same result, finding that the facts also warranted application of the doctrine of equitable estoppel to preclude the husband from "seeking to disclaim paternity of the parties' child, whose best interest is paramount".

Court Required to Consider Latest Income Tax Return Where It Never Indicated it was Imputing Income

Where Court Never Indicated it Was Imputing Income to Plaintiff it Was Required to Consider Plaintiff's Latest Income Tax Return in Determining the Child-support Award, Rather than Income-averaging His Reported Income.


In Healy v Healy, --- N.Y.S.2d ----, 2008 WL 2130379 (N.Y.A.D. 1 Dept.) the Appellate Division reversed on the law an order which denied plaintiff husband's motion for a downward modification of his spousal maintenance and child support awards. Following a trial in August of 2005, judgment was entered in February 2007, awarding defendant wife, among other things, a divorce on her counterclaim, custody of the couple's five children, $2,750 in spousal maintenance per month and$2,631 in child support per month. Plaintiff was represented by counsel at trial, and he promptly moved pro se for a downward modification after entry of judgment. At trial, his 2005 income tax return was admitted into evidence, indicating asubstantial decrease in earnings. The court never indicated it was imputing income to plaintiff based on an attempt to avoid obligations or hide income. Accordingly, it was required to consider plaintiff's latest income tax return in determiningthe child-support award, rather than income-averaging his reported income from 2001 to 2004. Plaintiff's most recent tax return should also have been considered in determining the appropriate award for spousal maintenance.

Clear and Unambiguous French PreNuptual Agreement Upheld to Deny Wife Equitable Distribution

Clear and Unambiguous French PreNuptual Agreement Upheld to Deny Wife Equitable Distribution


In Van Kipnis v Van Kipnis, --- N.Y.S.2d ----, 2007 WL 2003419 (N.Y.A.D. 1 Dept.), the Plaintiff wife and defendant husband were married in Paris, France, in 1965. Prior to the ceremony, and at the request of the wife, the parties agreed to execute a "Contrat de Mariage" (Contract), which is a form of prenuptial agreement under the French Civil Code. The expressly stated purpose of the Contract was to opt out of the "community property regime," which is the custom in France, in favor of a "separation of estates" property regime. The first article of the Contract, which is titled "MARITAL PROPERTY SYSTEM," provided: "The future spouses declare that they are adopting the marital property system of separation of estates, as established by the French Civil Code. Consequently, each spouse shall retain ownership and possession of the chattels and real property that he/she may own at this time or may come to own subsequently by any means whatsoever. They shall not be liable for each other's debts established before or during the marriage or encumbering the inheritances and gifts that they receive. The wife shall have all the rights and powers over her assets accorded by law to women married under the separate-estates system without any restriction." Shortly after the marriage the parties moved to New York, where they resided throughout their 38-year marriage. The husband acquired liquid assets of approximately $7 million and the wife of approximately $700,000-$800,000 The parties kept their assets completely separate throughout the course of their marriage. However, the parties jointly owned a country home in Lenox, Massachusetts, valued at $625,000, and a cooperative apartment at 860 Fifth Avenue, in Manhattan valued at $1.8 million. At the hearing, the wife testified that the Contract was executed for the sole purpose of opting out of the community property system of France, and instead adopting a complete separation of estates, whereby each party could not be held liable for the other's debts. She also admitted, however, that the husband executed the Contract at her insistence, that he had no money at the time of the marriage and that she had never moved to set the Contract aside during the marriage. The husband offered a similar understanding of the Contract. Expert testimony established that article 1536 of the French Civil Code provides different choices of matrimonial regimes; that by signing the Contract the parties opted out of France's community property regime and chose a regime of separate property; that the legal effect of this selection was that each
spouse retained the unfettered right to administer, enjoy and freely dispose of his or her separate property throughout the marriage and continuing through its dissolution; and that divorce is never mentioned in a marriage contract. The Referee upheld the Contract., finding that "it is clear that these parties entered into a prenuptial agreement ... which governed the economics of their 38 year marriage, and is likewise applicable in the circumstances of their divorce." Thus, the Referee determined that the parties were to retain ownership of the assets held in their respective names. With respect to the jointly held properties, the Referee recommended that wife be awarded the co-op apartment and reimbursed $75,000 for repairs and furnishings therein, and that the husband be awarded the Massachusetts country home. The Referee also ruled that the Contract did not constitute a waiver by the wife of the right to receive maintenance. In determining the amount and duration of maintenance, the Referee considered, inter alia, the marital standard of living, which it described as "relatively modest," in arriving at a sum of $7,500 per month, payable until either the husband or wife dies or the wife remarries. In
addition, after subtracting the amount of fees allegedly attributable to the wife's challenge to the Contract, which it found were not compensable, the Referee awarded the wife an additional $92,779 in attorneys' fees. On appeal, the wife argued that the enforceability of the Contract was irrelevant since, even if enforceable, it was not applicable to this divorce proceeding, since the intent was to shield each spouse's assets from the other's creditors during the marriage, and not to govern the distribution of property upon divorce. She noted that although the Contract specifically provides that each spouse "shall not be liable for each other's debts established before or during the marriage," it makes no mention of the disposition or distribution of property in the event of divorce, and contains no express waiver of property rights if the parties decided to divorce. She also noted that both parties testified that neither of them understood the Contract as having any relevance to divorce. The First Department held that because the Contract unambiguously provides for separate ownership of property and extrinsic evidence should not have been considered to create an ambiguity or vary its terms, it would affirm that portion of the order which found the contract to be enforceable and applicable. It rejected the wife's argument that the Contract should not be enforced
because it is not "an agreement for the disposition of ... property" within the meaning of Domestic Relations Law [DRL] 236(B)(5). Although the wife was correct that the Contract was not an agreement for the disposition of property, DRL
236(B)(3) authorizes enforcement of agreements that include "(2) provision for the ownership, division or distribution of separate and marital property" (emphasis added). Moreover, DRL 236(B)(1)(d)(4) defines "separate property" as including
"property described as separate property by written agreement of the parties." Thus, the DRL specifically authorizes agreements to treat what might otherwise be marital property as separate property for purposes of equitable distribution. This
is precisely what occurred in this case, where the Contract described each spouse's property held at the time of marriage or acquired thereafter as separate property. The court's award of $7,500 per month in maintenance, which would result in an approximate annual pre-tax incomes of $126,000 for the wife and $335,000 for the husband, was a proper exercise of discretion as was the $92,779.57 in attorneys' fees to the wife. Although the wife requested an additional $177,000 in fees (the husband had already paid $160,000), the Referee correctly ruled that under DRL 237 the wife was not entitled to fees incurred in challenging the enforceability of a prenuptial agreement. Moreover, because the legal bills submitted by the wife's attorney failed to clearly delineate those legal services that were unrelated to the wife's challenge to the agreement, and thus compensable under DRL 237, the court properly exercised its discretion in awarding the amount that it did.

Provisions in Settlement Agreement Which Govern Award of Attorney's Fees, Rather than Statutory Provisions, Control.

Provisions in Settlement Agreement Which Govern Award of Attorney's Fees, Rather than Statutory Provisions, Control.


In Berns v Halberstam, --- N.Y.S.2d ----, 2007 WL 4465050 (N.Y.A.D. 2 Dept.) the parties settlement agreement was incorporated but not merged into their judgment of divorce. The judgment of divorce stated that the father would have scheduled visitation with the parties' two daughters pursuant to the agreement. Article XXIV of the agreement provided that each party would pay his or her respective attorney for the rendition of services in connection with the agreement and the representation of him or her in "any lawsuit pending or to be commenced by and between the parties." Article XXVI set forth two specific circumstances where one party must pay for the other party's attorney's fees. The mother commenced proceedings for modification of the visitation provision, seeking to suspend the father's right to alternate weekend visitation. The parties settled these proceedings on the record, whereby the father's visitation rights were modified. The mother moved for an award of an attorney's fee, not pursuant to Article XXVI of the agreement, but rather pursuant to Family Court Act 651 and Domestic Relations Law 237(b). Family Court granted the mother's motion for fees related to legal work performed on two dates where the father caused unnecessary delay in the proceedings. The Appellate Division reversed. It held that where the parties have agreed to provisions in a settlement agreement which govern the award of attorney's fees, the agreement's provisions, rather than statutory provisions, control. Viewing Articles XXIV and XXVI in conjunction with each other, the agreement was clear and unambiguous. Article XXIV was a general waiver of attorney's fees, each party accepting responsibility to pay their respective counsel, and Article XXVI set forth two specific exceptions to the general waiver. The modification petition did not give rise to one of the two specific instances where an award of attorney's fees would be contractually required under Article XXVI. The modification petition was subject to the general waiver provisions of Article XXIV, which precluded an award of attorney's fees

Error to Award Joint Custody of Son From Previous Marriage. Equitable Estoppel Not Applicable

Error to Award Joint Custody of Son From Previous Marriage. Equitable Estoppel Not Applicable


In Gulbin v Moss- Gulbin, --- N.Y.S.2d ----, 2007 WL 4197590 (N.Y.A.D. 3 Dept.) the Appellate Division held that Supreme Court erred by awarding plaintiff joint custody of her son from a previous relationship. When the parties married, defendant was already the biological mother of two sons, one of whom was now emancipated. The parties were the biological parents of two more sons. Supreme Court, in reliance upon a long-standing parent/child relationship between plaintiff and defendant's second son, awarded joint custody to the parties with the children's principal residence being with defendant, subject to scheduled visitation rights for plaintiff. Notwithstanding a close and loving relationship, a nonbiological parent does not have standing to request custody or visitation when a biological parent is fit and opposes shared custody or visitation (see Matter of Alison D. v. Virginia M., 77 N.Y.2d 651, 655-657 [1991]; Matter of Multari v.Sorrell, 287 A.D.2d 764 [2001]; Matter of Rose v. Walrad, 278 A.D.2d 537, 538 [2000]; Matter of Cindy P. v. Danny P., 206 A.D.2d 615, 616 [1994], lv denied 84 N.Y.2d 808 [1994] ). Despite these cases, plaintiff, in reliance upon Jean Maby H. v. Joseph H. (246 A.D.2d 282 [1998] ), asserted that defendant was equitably estopped from asserting that he lacked standing to seek custody of and visitation with her second son. The Third Department held that "The purpose of equitable estoppel is to preclude a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted" (citing Matter of Shondel J. v. Mark D., 7 N.Y.3d 320, 326 [2006] ). Here, the doctrine was inapplicable. The record revealed that shortly after the parties married, and while this son was only three or four years of age, defendant informed him that plaintiff was not his biological father. Moreover, defendant refused to consent to his adoption by plaintiff precisely for the reason that it would impact on the issue of custody and visitation in the event of a divorce. Under these circumstances, it could not be concluded that defendant led plaintiff to form a reasonable belief that her claim to custody of her second son would not be asserted. Because defendant refused to stipulate as to the custody of this child and plaintiff admitted that defendant was a fit parent, Supreme Court erred in reaching this issue.